Right to refuse work
Employers must always be mindful of OH&S legislation across Canada which allows workers to refuse work if they have reasonable cause to believe the work is unsafe. Work refusals trigger an obligation for the employer to investigate. A work refusal can force a detailed investigation and a disruption of the workplace pending a decision by the employer, or if the matter cannot be resolved, a government official.

For some time, healthy debate has transpired regarding whether work refusal provisions in OH&S legislation too readily permit work refusals. Should the right to refuse be restricted to conditions of imminent danger or to physical hazards only?  Should OH&S work refusal rights be expanded to allow employees to refuse work in situations of threatened violence, bullying or harassment?  

In jurisdictions where violence is clearly defined as including more than risk of a physical hazard (Manitoba, Saskatchewan, the federal CLC), the answer to this question would be yes.

But the answer in many jurisdictions is not as clear. Current Ontario OHSA work refusal provisions do not specifically extend to allowing workers to refuse to work due to a threat of violence in the workplace. However, this might change in the near future.

Bill 29 proposes extending work refusal rights specifically to workers who have reason to believe that the existence of workplace-related harassment or violence is likely to endanger their safety. Furthermore, until the final resolution of the investigation, workers would have the right to remain away from work with pay.

If OHSA statutes such as Ontario’s are amended to permit work refusals where there is a threat of violence, or even where there is non-physical harassment in the workplace, this will mark a significant change for employers. Historically, in jurisdictions where no definition of workplace violence exists, or definitions do not include non-physical violence, tribunals have ruled that OHSA statutes are not sufficiently elastic to encompass non-physical violence or harassment.

Duties to protect workers from violence
Many provinces have moved to introduce specific OH&S obligations for employers to protect workers against violence. Currently, the federal CLC and the OH&S legislation of Alberta, British Columbia, Manitoba, Nova Scotia and Saskatchewan have express detailed OH&S legal obligations respecting workplace violence prevention.

Key obligations include requirements to develop policies on workplace violence; undertake workplace violence risk assessments; investigate events of workplace violence; provide training in policies and procedures as a means to prevent workplace violence. Even in the absence of specific statutory obligations to protect workers from violence or physical force, the provisions of most Canadian OH&S statutes impose a general duty on employers to take reasonable precautions to protect each worker.

 
Next: Emerging initiatives