UPDATE OHS and the Right to Refuse Unsafe Work: A “Step by Step” Guide for NLTA Members Nov 2020

November 13, 2020

Programs and Services

Occupational Health and Safety and the Right to Refuse Unsafe Work

A “Step by Step” Guide for NLTA Members

Your Association is well aware of the concerns members have regarding school re-entry and the adequacy of Public Health precautions for the K-12 system as compared to those in effect for other workplaces, organizations and events/activities. In particular, the lack of required physical distancing (two metres) and, when that is not possible, mandatory masks and other protections (such as face shields, plexiglass barriers, etc.) are shocking discrepancies compared to what is mandated for other employment contexts. NLTA continues to advocate, consistently and loudly, for equal treatment of and protection for our members, as workers, when it comes to COVID-19 precautions; however, we recognize these and other needed health and safety measures may not be in place when students return on September 9. Your Association is also concerned that other measures, such as enhanced cleaning protocols and cohorting, may present compliance concerns for the school districts due to inadequate resourcing.

All workers in the province have the right to refuse dangerous work. This right is provided by the Occupational Health and Safety Act (the Act). Under the Act, if a worker has a reasonable, subjective opinion that their health and safety or that of another person in the workplace is endangered, they may refuse to do the work in question until corrective action is taken by the employer or until an investigation is completed. The Act sets out a specific procedure to be followed when exercising one’s right to refuse. The refusal must be accompanied by an explanation of why the employee believes the work is unsafe, and must be communicated on an individual basis by each employee who feels they are being exposed to the danger.

The NLTA routinely assists teachers in relation to the right to refuse dangerous work, most often in addressing student violence issues. In light of COVID-19, your Association is anticipating an increase in requests for assistance from members wishing to exercise their rights under the Act. To assist, the following guidance is provided:

1. Immediately report the dangerous situation and that you are exercising your right to refuse unsafe work, including an explanation/rationale, to your immediate supervisor – in schools, this would be the principal. This should be done prior to starting or at the end of a work day in order to avoid issues related to the required supervision of students. Making this report in writing is recommended – the NLESD has developed a work refusal form See here some sample language for describing a concern for unsafe work:

[Date]

This is to advise that I am exercising my right to refuse unsafe work pursuant to section 45 of the Occupational Health and Safety Act. I believe that in the context of the COVID-19 global pandemic and a declared public health emergency in NL, it is dangerous to my and my colleagues’ health and safety to work in circumstances where physical distancing requirements that are standard for other workplaces are neither required nor possible in classrooms, students are not required to wear a NMM while in class, and my employer has not provided me with any PPE.

[Date]

This is to advise that I am exercising my right to refuse unsafe work pursuant to section 45 of the Occupational Health and Safety Act. I believe that in the context of the COVID-19 global pandemic and a declared public health emergency in NL, it is dangerous to my and my colleagues’ health and safety to work in a building in which the daily cleaning and disinfecting requirements set out at page 5 of the NL Public Health Guidance for K-12 Schools document (dated August 14) are not being followed.

[Date]

This is to advise that I am exercising my right to refuse unsafe work pursuant to section 45 of the Occupational Health and Safety Act. I believe that in the context of the COVID-19 global pandemic and a declared public health emergency in NL, it is dangerous to my and my colleagues’ health and safety that the cohorting requirements for student groupings as set out at pages 6-7 of the NL Public Health Guidance for K-12 Schools document (dated August 14) are not being maintained.

Details of individual issues/concerns that are specific to your work situation can be added.

2. Employees who exercise their right to refuse do not lose pay or benefits, but can be reassigned to other work, if possible, while their refusal is being investigated/addressed. Prior to reporting to work, ask how you will be reassigned until the investigation is completed. If you are not reassigned, remain off work. Do not access sick leave.

3. If the situation is resolved to your satisfaction by the principal, return to work. Principals should seek guidance/support in this regard from school district HR staff.

4. If the situation is not resolved to your satisfaction, communicate this to your principal. The school Occupational Health and Safety Committee (or OHS Worker Representative) will then investigate. If the matter is resolved to your satisfaction at this stage, return to work.

5. If the OHS Committee (or OHS Worker Representative) is unable to resolve the issue to your satisfaction, communicate this to the Committee/Representative. A safety officer from the OHS Division of Digital Government and Service NL will then investigate the matter and determine if/when you will be advised to return to work.

6. If you are concerned/disagree with direction from a safety officer to return to work, contact an NLTA Administrative Officer in Programs and Services for Assistance via mail@nlta.nl.ca.

During all stages of the investigation process, a teacher may be reassigned to other duties or would otherwise stay home without loss of pay or benefits. The employer cannot assign another worker to do the work unless they have been informed of the work refusal and the reasons for it.

Members who are considering exercising their right to refuse unsafe work under the Act are encouraged to first reach out for advice and support from NLTA Programs and Services staff via mail@nlta.nl.ca.