Refusing unsafe work in Ontario

In Ontario, employers have a legal duty to "take every precaution reasonable in the circumstances for the protection of a worker." If an employer has failed in this duty, workers have the right to refuse to work in unsafe conditions. Whether it’s improper procedures, a damaged machine, dangerous working conditions, or a threat of violence, employees generally have the right to refuse work that they believe is unsafe to themselves or another.

Section 43(3) of Ontario's Occupational Health and Safety Act (OHSA) enshrines the right of workers to refuse to do particular work where they believe faulty equipment, unsafe physical conditions in the workplace, or workplace violence endangers themselves or another worker. And, importantly, an employer can't punish an employee who exercises her or his rights under the Act to refuse unsafe work.

But it's not as simple as just saying "no" and going home. To enjoy the protections of the Act, workers need to follow the correct procedure to refuse unsafe work.

How it works

• Step 1: If you identify an unsafe working condition, you can stop carrying out the specific unsafe task immediately.
• Step 2: You must report the situation and your concerns to your supervisor right away.
• Step 3: You must then remain nearby (in a safe place), and remain available while the supervisor looks into the situation.
• Step 4: The supervisor must investigate the circumstances right away, and must do so in your presence, and in the presence of a health & safety rep, and/or employee/union rep if applicable.
• Step 5: Hopefully, your concerns will be addressed at this stage and you can resume your work with the equipment fixed/the dangerous conditions remediated/etc.
• Step 6: But if you don't believe your concerns have been adequately addressed, and the dangerous condition remains, you can refuse to go back to work, and contact the Ministry of Labour. Call the Ministry's Health and Safety Contact Centre at 1 (877) 202-0008.
• Step 7: An inspector for the Ministry will review the situation, speak with you and the employer, and render a decision as to whether or not dangerous circumstances do in fact exist.
• Step 8: If the inspector concludes there is an unsafe condition, the employer must take the appropriate steps to remedy it. If the inspector concludes there is not an unsafe condition, the employee must return to work.

This is a summary of the process for refusing unsafe work, and shouldn't be relied upon as legal advice in and of itself. For the full details, you should refer to the Occupational Health and Safety Act, the Ministry of Labour's online guide, or else speak with a local employment lawyer.

What happens during the investigation?

If you make a complaint, you must remain nearby (to the extent doing so is safe) and assist with the investigation as required - you cannot simply leave. You may also be required to continue performing other work that does not trigger the particular safety concerns in question (for example, using a different piece of equipment, working on another task, altering procedures to temporarily avoid your concern, etc).

While the investigation is ongoing, other workers cannot be forced to work in the same dangerous conditions unless they have been warned of the alleged safety concern, and voluntarily choose to do so.

Can I be fired for refusing unsafe work?

No. As long as you follow the procedures set out in the Act, your employer is prohibited from punishing you because you refused unsafe work or are exercising your rights under the Occupational Health and Safety Act.

If you believe you have faced reprisal from an employer because you've refused unsafe work, you should contact a local wrongful dismissal lawyer right away to discuss your options. Unionized employees should speak with their union representative.

Are there exceptions?

As with most legal issues, the precise rules around workplace safety are not entirely black & white. What constitutes "reasonable precautions" and "unsafe conditions" in one context may not be considered the same way in another. And in some situations, there may be other considerations that apply beyond the simple guidelines set out in this article. For example, in unionized workplaces, collective agreements may impose other obligations on employers or duties on employees. In addition, certain specific industries and situations may have more specific safety rules around them. And in certain inherently risky professions (think police, firefighters, prison guards, hospital workers, etc.) the Act may not apply the same way at all.

When in doubt, speak to your union rep if applicable, or reach out to a local employment law firm to discuss your rights.

Exercising your rights to ensure a safe workplace

Understanding your rights is the first step towards ensuring a safe workplace. If you are faced with unsafe work, if your employer is uncooperative in addressing identified dangers, or if you are punished for voicing legitimate concerns, get in touch to find out how we can help. You don’t have to navigate this alone.