Many Ontario workers are trying to refuse work due to COVID-19 fears -- but the government isn’t letting them

Thestar.com
April 28, 2020
Sara Mojtehedzadeh

Since the start of the COVID-19 outbreak, workers who fear contracting the virus have filed more than 200 work refusals. But the Ontario Ministry of Labour has not upheld a single one, after quietly establishing an internal committee to oversee inspectors’ enforcement efforts during the pandemic, the Star has learned.

Work refusals in Ontario spiked to a high point in mid-March, when there were 83 in a single week. It’s a significant increase from January and February, when the province averaged less than four work refusals a week according to ministry data.

In total, there have been 213 COVID-19 related work stoppages from workers who believed their jobs presented a danger to their health. None met the ministry’s criteria for a work refusal, spokesperson Janet Deline said.

“For workers to refuse work, the danger must be based on current conditions they’re exposed to. For example, a machine they’re asked to use lacks the proper guarding,” she said.

“If a work refusal does not meet the criteria, then the issue will be dealt with as a complaint. Complaints can still result in orders and requirements being issued. Our ministry has issued 1,386 orders related to COVID-19 which have made workplaces safer.”

Employers have a legal obligation to take every reasonable precaution to protect workers from injury and illness -- including from infectious disease. Typically inspectors will issue orders requiring employers to comply with health and safety laws within a certain time frame, either through proactive inspections or in response to reported issues. Often inspectors will issue multiple orders on a variety of issues at a single workplace.

Work refusals are more serious because they involve a work stoppage and are usually dealt with more quickly. Based on the ministry’s investigation, the worker may not return to the job until the hazard has been resolved.

Ryan White, a labour lawyer and partner at Toronto-based firm Cavalluzzo, said he has spoken to around a dozen workers since the start of the pandemic about unsafe work -- but none felt comfortable filing work refusals. Given fears of reprisal in a highly unstable job market, White described the recorded number of COVID-19 work refusals as “incredibly high.”

“Work refusals are really serious things. When you think about it from the perspective of a worker, it’s a worker essentially going on a ministrike,” he said.

“It’s kind of hard to believe that not a single one out of all of those was upheld.”

Robust and independent enforcement by the Ministry of Labour plays a significant part in containing outbreaks, according to the SARS Commission that investigated the government’s response to the 2003 epidemic.

Looking at health care employers in particular, the commission found numerous failures to comply with legal obligations to protect workers, as well as “widespread, persistent and ingrained failures” by the Ministry of Labour to enforce workplace safety laws.

Now, there are fears that history is repeating itself.

Last week, the Ontario Federation of Labour wrote to the Ministry of Labour raising concerns that “work refusals related to COVID-19 are not being taken seriously” and that inspectors are being “handcuffed by red tape and bureaucracy.”

“We need to ensure that their workplaces are safe,” said OFL president Patty Coates in an interview with the Star.

“Sidelining the ministry just as they were sidelined during the SARS crisis does not support our workers.”

The COVID-19 pandemic prompted the ministry to set up an internal body initially called the Work Refusal Advisory Committee -- now the COVID-19 Advisory Team, the Star has learned. Reports and orders issued by health and safety inspectors must be sent to the “lawyers and managers” who make up the team, leading to concerns about a chilling effect on investigations.

“Inspectors are being told to send their reports and orders to lawyers and managers within the Ministry, said Smokey Thomas, president of the Ontario Public Service Employees’ Union that represents ministry inspectors. “This is not normal.”

“Inspectors are telling us that they can’t do their jobs,” he added.

“They are on the front lines. They hear and see the situation first hand. No one in a downtown office can make the decisions that our members can.”

A ministry statement to the Star did not address questions about whether the advisory committee vets inspectors’ orders and investigations. Spokesperson Janet Deline said the committee was made up of “program experts,” including Infection Control Specialists.

 “These experts help determine how emergency orders, directives from the Chief Medical Officers of Health and other documents apply to our enforcement of the Occupational Health and Safety Act (OHSA),” she said.

Deline said inspectors rely on “ministry of health guidelines to inform their decision on whether employers are adequately protecting workers from contracting the virus.”

Many of those guidelines are “not directly related to worker health and safety,” she noted. “Only those which are also relevant to specific sections of the OHSA, and relate to non-compliance of the OHSA and regulations, can be enforced.”

But a recent report from a Ministry of Labour-funded disease prevention body warns provincial guidelines on COVID-19 protections, especially on wearing masks, do not embody the precautionary principle advised by the SARS commission. The precautionary principle says safety must come first and that “reasonable efforts to reduce risk need not await scientific proof.”

The number of work refusals on the books is particularly alarming, White said, because many essential workers can’t even file work refusals in some cases.

Health-care workers, for example, can only refuse unsafe work if it will not endanger someone in their care. Couriers and truckers delivering essential goods during the province-wide shutdown are often misclassified as independent contractors and may not know what their rights are when it comes to refusing unsafe work.

The data requested by the Star shows that around half of all work refusals filed since mid-March were from employees in industrial environments; only 29 were from health-care workers. In April, 38 TTC bus drivers refused work citing mask scarcity and other safety concerns. The ministry did not uphold the work refusal.

While the Ministry of Labour has issued almost 1,400 COVID-19 related health and safety orders, White said that number appears relatively low.

Last year -- when there was no large-scale outbreak of a highly infectious virus -- the ministry issued an average 10,800 health and safety orders a month to Ontario employers, according to its annual report.

“The number of COVID based orders is smaller than one would expect to see during a ‘once in a hundred years’ pandemic,” said White.

In some key cases, inspectors do not appear to be issuing orders at all. Last week, the Service Employees Union of Canada filed an emergency application to the labour board seeking immediate intervention at three long-term care homes that have seen some of the deadliest outbreaks of the virus. The submissions alleged serious issues with personal protective gear and safety protocols, and said at least two of the homes were the subject of ministry inspections -- one of which took place over the phone. The submissions said the ministry did not issue any health and safety orders.

On Friday, the board ordered mandatory physical ministry of labour inspections at each of the facilities every week.

Research shows that front-line essential workers are more likely to be low-wage and racialized, although the province is not collecting data on race and occupation amongst COVID-19 patients. Some public health units are now collecting this information on their own. So far, the workers’ compensation board has approved 159 claims from workers who contracted the virus on the job; 1,900 further claims are still be adjudicated.

White said it was critical for the government to conduct proactive inspections in essential workplaces, rather than relying on workers coming forward.

“The incredibly high number (of work refusals) suggest people feel very, very unsafe,” he said.

“The Ford government has essentially forced a number of people to go to work without providing the enforcement mechanisms which would ensure that there are adequate protections in place to protect workers and their families.”

Deline said in response to the outbreak, the ministry has conducted proactive inspections in the construction and food processing sectors.

“The ministry conducted proactive inspections in these sectors in response to the growing concerns of Ontarians and the increased risk associated with the difficulty of maintaining physical distancing at these workplaces. The ministry plans to engage with other essential businesses sectors in the future to help ensure workers are protected and help stop the spread of COVID-19,” she said.

Coates said the ministry’s initiatives do not go far enough, especially given the ongoing crisis in the province’s long-term care homes.

“We need to ensure that workers are safe, that workers have personal protective equipment. We see the wildfire that has been set off because we didn’t have that place. Because we didn’t have the proper protocols in place,” she said.

“I hear the government saying, ‘heroes, heroes, heroes. ’And yet they are not doing what they need to be doing.”