Nova Scotia

What N.S. employees can expect if they refuse to go to work due to COVID-19

A lawyer with McInnes Cooper in Halifax says employees who refuse to go into work during COVID-19 because they have legitimate concerns about workplace safety may still be entitled to pay.

Employees have right to refuse work if they believe it’s unsafe, labour lawyer says

Michael Murphy is a partner with McInnes Cooper in Halifax. He says employers have a duty to keep their staff, visitors and suppliers safe during the coronavirus outbreak. (Submitted by Michael Murphy)

Employees who refuse to go into work during COVID-19 because they have a legitimate concern that their workplace is unsafe may still get paid, says a Halifax labour lawyer.

"If you feel that there's a hazard in the workplace, that it's unsafe, employees can stop working and ask their employer to address it," Michael Murphy, a partner with McInnes Cooper, told CBC's Information Morning on Tuesday.

He's written a COVID-19 Q&A for employers.

Under Nova Scotia's Occupational Health and Safety Act, employees can refuse work they reasonably feel is unsafe. A hazard could be if someone in the workplace has COVID-19, if they're reporting flu-like symptoms or if they've travelled to an at-risk country recently, Murphy said.

On Tuesday, Nova Scotia detected two more presumptive cases of the novel coronavirus, bringing the total number of cases to seven.

Employers have a duty to keep their staff, visitors and suppliers safe during the outbreak, Murphy said. But that doesn't mean employees can be off work for an indefinite period of time, he added.

Once a hazard is identified, Murphy said an employee is entitled to pay until the employer investigates and addresses the concern. If the employer looks into it and decides the refusal isn't reasonable, the employee may not be paid, he said.

Murphy pointed to a case where train employees refused to work because passengers had been infected by the Norwalk virus.

"It wasn't held to be reasonable because the employer had done what was necessary to disinfect and make the workplace safe," Murphy said.

What if you're told to self-isolate?

If employees refuse to come into work, Murphy said employers can give them other tasks to do from home while the COVID-19 concern is being investigated.

But he also said an employee can't expect to be paid if they decided to travel to certain countries during the outbreak, especially if the employer advised against it.

"If you've travelled to an at-risk country, then we can't guarantee that you'll be able to return to work or you may be put off on a leave without pay," Murphy said.

When it comes to forced self-isolation, Murphy said it all depends on the workplace and whether it's unionized.

There is no federal legislation providing paid sick days for all Canadian workers.

Murphy advises both employers and employees to look to their collective agreements or employment contracts for guidance.

What about hourly workers?

Dealing with the COVID-19 pandemic is a particular challenge for hourly employees who don't get paid if they don't show up, Murphy said.

Prime Minister Justin Trudeau announced last week that the federal government will waive the one-week waiting period for employment insurance (EI) to assist workers and businesses affected by the novel coronavirus. He said he'll also explore income support for those not eligible for EI sickness benefits.

This undated electron microscope image made available by the U.S. National Institutes of Health in February 2020 shows the Novel Coronavirus SARS-CoV-2, yellow, emerging from the surface of cells, blue/pink, cultured in the lab. Also known as 2019-nCoV, the virus causes COVID-19. (U.S. National Institutes of Health/The Canadian Press)

The Nova Scotia NDP has also called on the provincial government to revisit tabled legislation that would allow all employees up to six days of paid sick leave each year, but some business groups worry about the burden that will put on employers.

Murphy said at the end of the day, employers have an obligation to keep their staff safe and informed. That means providing information about COVID-19, from proper handwashing to understanding the symptoms, and supplying items like hand sanitizer, he said.