COVID-19 and Occupational Health and Safety

We have prepared the following as general legal information based on what we know about the evolving circumstances of COVID-19 as of May 11, 2020. However, each workplace is different and can be impacted differently during this time and we encourage you to obtain legal advice that is tailored to your particular situation. Please contact Patterson Law’s Labour and Employment team if you would like to discuss further.

COVID-19 and Occupational Health and Safety

Safety in Nova Scotia workplaces is governed by the Occupational Health and Safety Act (OHSA). Under OHSA, employers must take every reasonable precaution to ensure the health and safety of all persons at their workplace, including employees, contractors, customers, and visitors, depending on the business. However, in the context of COVID-19, this should include, at a minimum, two things: (1) educating employees on how to reduce the risk of transmission and spread of COVID-19 in the workplace; and (2) putting in place appropriate safeguards. OHSA also imposes duties on employees. While at work, employees must take every reasonable precaution to protect their own health and safety and that of other employees and persons at the workplace, which includes following the policies and procedures their employer has put in place. 

COVID-19 raises concerns for both employers and employees over their shared duty to maintain a safe workplace. To ensure a safe workplace, employers should involve employees in the creation of a workplace safety plan either through a joint occupational health and safety committee, or selected workplace representatives. In addition, employers and employees should remain up to date on public health guidelines and government directives. Current directives mandate that all persons in a workplace maintain social distancing by staying at least 2 metres apart. As a result, steps must be taken to minimize social contact in the workplace. For example, most meetings should be taking place by phone call or videoconferencing. In addition to social distancing, the workplace must be cleaned and disinfected at least twice daily. Employers should ensure that cleaning procedures are clearly documented. Employees must also follow proper hygiene by washing their hands often. Employers should think through each aspect of their business, including the day-to-day interactions and tasks, and consider whether they need to be adapted to keep employees and others safe in their workplace. 

If a safe workplace is not maintained, OHSA permits employees to refuse work if they have “reasonable grounds” to believe the work is likely to endanger their health or safety or the health or safety of any other person. However, this does not mean that an employee has a carte blanche to refuse to perform work they view as unsafe. For example, an employee’s fear of contracting COVID-19 does not mean the “reasonable grounds” test is met. Rather, the employee should be able to describe the specific practice or issue in the workplace that they feel is unsafe. 

Once an employer receives a complaint, they have an obligation to evaluate and investigate the complaint. Using the above example, if an employer is investigating a complaint based on an employee’s fear of contracting COVID-19, the current scientific understanding of the virus and how it spreads should be considered in the context of the workplace under investigation to determine if there are exposure risks. If employers are following government directives and public health guidelines, they should be justified in maintaining they are providing a safe workplace.

This document contains general legal information and was authored by Patterson Law’s Labour and Employment lawyers, Dennis J. James, Q.C., Anna-Marie Manley and Jennifer Singh. Please reach out to us with any questions you may have.  Call 1.888.897.2001