The Workers Compensation Act provides workers with access to benefits for injuries or illnesses that they have suffered in the course of and arising out of their employment. In the right circumstances, a workplace condition can include an infectious disease such as COVID-19. The WorkSafeBC policy requires the individual to have part of their employment be a factor that increases the likelihood that they will become exposed to COVID-19. While this policy was likely drafted with hospital and medical staff in mind, it also likely includes grocery store clerks, pharmacy workers, truck drivers, and other essential workers.
The requirements for compensation under WorkSafeBC for COVID-19 are:
- Evidence that the worker has contracted COVID-19, either through a medical diagnosis in a medical report, or non-medical factual evidence where other evidence establishes the existence of COVID-19.
- The worker’s employment created a risk of contracting the disease significantly greater than the ordinary exposure risk of the public at large.
As the risk to essential workers increases, the burden on employers to ensure that they are keeping a safe work environment also increases. To this effect, WorkSafeBC has developed some guidelines to assist employers and workers navigate this new environment.
If the employer has taken reasonable safety measures that comply with the WorkSafeBC recommendations, then employees must attend work and do as directed. If an employer has not complied however, then the employee must follow section 3.12 of the Occupational Health and Safety Regulation which sets out the procedure and method of evaluating the reasonableness of the refusal.
Refusals to Work Because of COVID-19
As noted by Daniel Standing on Slaw.ca, we are starting to see decisions come out addressing refusals to return to work on account of COVID-19. In the prohibited action decision from March 20, 2020, the Workers Compensation Board was evaluating the claim of a worker who alleged that he refused to return to work on account of the pandemic.
The decision maker summarized the factors required to establish a prohibited action complaint as follows:
 To potentially succeed in a prohibited action complaint, a worker must at a minimum establish a prima facie case of prohibited action. The worker is required to provide evidence which, if believed, is capable of showing all three of the following elements:
- that the employer took action that falls within the meaning of “prohibited action” in section 47 of the Act [e.g. a dismissal, lay off, suspension, or other disciplinary action];
- that the worker did something captured by section 48 of the Act [e.g. refusing unsafe work or reporting unsafe work]; and
- that there is a causal connection between the worker’s conduct under section 48 and the employer’s actions under section 47 of the Act.
In this case, the Board found that the worker did not establish a prima facie case because he failed to follow section 3.12 of the Occupational Health and Safety Regulation. This section states the following:
3.12 (1) A person must not carry out or cause to be carried out any work process or operate or cause to be operated any tool, appliance or equipment if that person has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person.
(2) A worker who refuses to carry out a work process or operate a tool, appliance or equipment pursuant to subsection (1) must immediately report the circumstances of the unsafe condition to his or her supervisor or employer.
(3) A supervisor or employer receiving a report made under subsection (2) must immediately investigate the matter and
- (a) ensure that any unsafe condition is remedied without delay, or
- (b) if in his or her opinion the report is not valid, must so inform the person who made the report.
(4) If the procedure under subsection (3) does not resolve the matter and the worker continues to refuse to carry out the work process or operate the tool, appliance or equipment, the supervisor or employer must investigate the matter in the presence of the worker who made the report and in the presence of
- (a) a worker member of the joint committee,
- (b) a worker who is selected by a trade union representing the worker, or
- (c) if there is no joint committee or the worker is not represented by a trade union, any other reasonably available worker selected by the worker.
(5) If the investigation under subsection (4) does not resolve the matter and the worker continues to refuse to carry out the work process or operate the tool, appliance or equipment, both the supervisor, or the employer, and the worker must immediately notify an officer, who must investigate the matter without undue delay and issue whatever orders are deemed necessary.
That the worker in this decision did not invoke the process under s. 3.12 was sufficient to dismiss his claim. This section has a fair amount of consideration by the Workers Compensation Appeal Tribunal (but none of which pertain to the COVID-19 pandemic), so we have some idea how an appeal of this decision might proceed. For example, in WCAT decision A1700361, Vice Chair Sherelle Goodwin summarized the prevalent considerations as follows:
In WCAT-2004-00641, a noteworthy decision, the panel considered section 3.12 of the Regulation in the context of a worker who refused to work with a co-worker that had previously threatened the worker with physical violence. The panel there applied an objective test in assessing whether there were reasonable grounds for the worker to believe that the co-worker represented an undue hazard to the worker. The panel emphasized that, in applying this test, she did not have to be satisfied that the worker was correct in his assessment about whether or not the environment was a safe place for him to work. Rather, the test in section 3.12 of the Regulation is one of reasonable belief.
In WCAT-2011-00773 the panel considered a worker’s refusal to install a line of pipe as he believed it to be unsafe work. The worker explained that he believed that the pipe needed to be welded, which would fail when the pipe was eventually pressurized, creating an undue hazard. The panel found that, at the time the worker refused the work his belief that the pipe needed to be welded was unreasonable as there was no objective evidence supporting that welding was necessary. Referring to section 31.2 of the Regulation at paragraph 64 the panel stated:
…It is important to emphasize that the Regulation requires that the person have “reasonable cause” that the worker process or equipment is unsafe. Thus, a worker cannot make a frivolous or unreasonable allegation of danger and expect that section 3.12 will support a refusal to work. On the other hand, a worker need not be necessarily correct regarding his or her safety concerns – they only need to have a reasonably held belief.
In WCAT-2009-01246 the panel considered the worker’s refusal to work with a certain co worker, on the basis that he felt unsafe. The panel there also applied an objective test in assessing the worker’s belief. On the evidence before her the panel found that the worker had not sufficiently explained the reason for his belief that the workplace was unsafe. She also found that the worker’s behaviour at work did not support a finding that he feared for his safety.
While prior WCAT decisions are not binding on me they do provide guidance on policy interpretation and promote consistency in decision making. I agree with and adopt the approach taken by the panels in the above noted decisions. I find that the test set out under section 3.12 of the Regulation is an objective one. In order to engage the process for refusing unsafe work under section 3.12 of the Regulation, the worker must have an objectively reasonable belief that the work poses an undue hazard to his health or safety. The worker’s belief need not be correct, but it must be based on reason.
In this WCAT decision the worker alleged that they had a health compromised child at home and susceptible to a lice infestation and as such were reasonable in refusing work. WCAT disagreed, finding that:
The worker argues that, as he had a small child at home who could not be treated with medication for lice, he should be considered a susceptible worker. In other words, as the worker had a small child, he would be more affected by contracting lice than would another worker without a small child.
I am not persuaded by the worker’s argument. The nature of a susceptible worker is that the worker’s underlying condition makes the worker more susceptible to illness or injury. The example provided in the guideline is that of an asthmatic worker who is exposed to a noxious odour. I am not persuaded that having a young child at home is an underlying condition as it is not a medical condition. I do not find that the worker’s role as a father makes him more susceptible to contract lice.
As the worker’s belief that the work was unsafe was not reasonably held, section 3.12 of the Regulation does not apply. The worker’s refusal to participate in the training exercise was not a refusal of unsafe work as set out in the Regulation and, as such, is not a protected activity as described in section 151 of the Act.
I find that the worker was not engaged in a protected activity described in section 151 of the Act. As such, the worker has not met the second criterion.
The worker has failed to meet his burden of establishing a prima facie case of discriminatory action. Thus I find that the employer did not engage in discriminatory action against the worker by terminating his employment on May 7, 2016.
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If you are a worker and have been denied a claim for WorkSafeBC compensation or has been subject to prohibited conduct, then contact us and we can help you evaluate your options.
If you are an employer concerned about your legal requirements to your employees, then feel free to contact us to discuss the legal requirements set out by WorkSafeBC.