There has been much discussion and coverage of what is required of provincial employers wth respect to restarting workplaces in light of the pandemic. While the focus may have been on protections under provincial legislation such as the Employment Standards Act or the Workplace Safety and Insurance Act, there are also thousands of federally-regulated employees in Ontario and throughout Canada to which a separate set of legislation applies. The Labour Program has set out obligations and rights for federal employees and employers with respect to a number is issues of concern during the pandemic. Below, we will review workplace safety as it applies specifically to federal employees.
Federally-Regulated Employees & The Canada Labour Code
Federal employees are people who work within the private sector of federally-regulated industries, such as:
- Air transportation, including airlines, airports, aerodromes and aircraft operations
- Grain elevators, feed and seed mills, feed warehouses and grain-seed cleaning plants
- First Nations Band Councils
- Most federal Crown corporations, for example, Canada Post Corporation
- Port services, marine shipping, ferries, tunnels, canals, bridges and pipelines (oil and gas) that cross international or provincial borders
- Radio and television broadcasting telecommunications
- Railways that cross provincial or international borders and some short-line railways
Federal employment regulations also apply to those employed in federal public sector roles.
To be federally regulated means that the terms of employment are governed by the Canada Labour Code (CLC), rather than provincial employment legislation.
Federal Employees & Refusing Unsafe Work
Employers of federally-regulated employees are obligated to protect the health and safety of all employees and to provide a safe work environment. Further, all employees have rights under section II of the CLC, including:
- the right to know;
- the right to participate; and
- the right to refuse dangerous work
“Dangerous work” is defined in the CLC as “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.” There are exceptions to this definition. If the refusal to work would put another person’s life in danger, an employee cannot refuse. Further, if the danger in question is inherent to the role (e.g. the inherent dangers of firefighting), it will not be a sufficient reason to refuse work. For more details about the rights and procedures around the refusal of dangerous work in federally-regulated industries, see here.
Federal Employer & Employee Safety Obligations Under COVID-19
Both employees and employers have obligations to report dangerous working conditions. When it comes to the pandemic, ‘dangerous conditions’ also extend to the potential exposure to infection. Any employee who believes they may have been exposed should report this to their employer immediately.
Employers have a greater responsibility when it comes to protecting their workers. Under the Labour Program, employers are required to investigate and report the following as soon as possible:
- continued refusals to work to the Labour Program, once all workplace investigations have taken place. An official delegated by the Minister of Labour will follow up with employers to review CLC requirements related to refusals to work.
- investigate instances of employees with confirmed COVID-19 resulting in exposure to other employees, and for preventing recurrence of exposure, and
- report known cases of employees confirmed to be infected with COVID-19 in the workplace using the Hazardous Occurrence Investigation Report
Employers in the transportation industry also have a mandate with respect to the requirement of face coverings for all employees when physical distancing is not possible. For a breakdown of the requirements by the form of transportation, see here.
Contact an Experienced Employment Lawyer if You Have Concerns About Returning to Work
Employers must balance the protection of their staff with the requirements of their workplaces. Both employees and employers should remain fully up-to-date on their rights and obligations with respect to workplace safety during COVID-19.
For advice on this issue and all employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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