Having a “good faith” belief can be both subjective and objective. This means the employee must personally perceive a serious imminent danger, and have had reasonable grounds to believe that the danger existed at the time of refusal. Reasonableness is measured by what a reasonable person would have perceived given all the facts and circumstances known to the employee at the time. Where an employee does not have a reasonable good faith belief of imminent serious danger or has not sought to have the hazard addressed where there is sufficient time to do so, the employer may lawfully discipline the employee for refusing to work, following normal disciplinary procedures (as impacted by a collective bargaining agreement or local law).
In Canada the situation is somewhat different and is governed by both provincial occupational health and safety legislation and for some employers, the Canada Labour Code. The first question for employers should be to determine the legislation that governs their workforce. The legislation requires the employer to protect the safety of their workers. If an employee claims an unsafe workplace and refuses to work, the employer must follow the legislated work refusal process.
Employees are required to discuss their concerns with their employer (in some cases their supervisors and/or health and safety committees), and the employer must investigate. If a resolution cannot be reached, a government inspector will conduct an investigation of the workplace to determine whether or not the employee can refuse to work. In a SARS related refusal by an airline ticket agent, a Labour Canada Officer determined that an appropriate response by the employer was to provide gloves and masks to be worn by all ticket agents and that the employee could not then refuse to work. Employers cannot generally discipline or threaten to discipline employees for refusing to work on the basis of an allegation of an unsafe workplace.
Employee leave: U.S. and Canada
There is a similar U.S.-Canada dichotomy on the issue of workplace leave. In the U.S., an employee’s absence from work due to the flu or related complications may qualify as job-protected leave under the Family Medical Leave Act (FMLA) or similar state leave laws, provided that the requirements for both the employer (a worksite with 50 or more employees working within a 75-mile radius) and employee (at least 1,250 hours worked in the previous 12 months) are met. For FMLA leave, the flu-related symptoms suffered by the employee or the immediate family member must rise to the level of a “serious health condition,” defined as:
• an overnight stay in the hospital, or
• an incapacity of more than three consecutive days plus subsequent treatment or period of incapacity that involves either (1) treatment two or more times, within a 30-day period, by a healthcare provider, with the first visit occurring within seven days of the condition’s onset, or (2) a continuing regimen of treatment by a health care provider after an initial visit.
It is always the employer’s responsibility to designate a qualifying absence as FMLA leave and the designation may only be made based on information provided by the employee or the employee’s spokesperson, such a spouse or treating physician.
Many provinces and the Canada Labour Code mandate unpaid leave for employees and in respect of certain family members. In Ontario, employment standards legislation provides for ten days of unpaid personal emergency leave due to personal illness, injury or medical emergency or that of certain family members where the employer employs more than 50 employees. Employees also may be entitled to family medical leave to care for a critically ill family member. There are strict criteria that must be met before an employee can take advantage of this leave.
Under the leave provisions, the employer must return the employee to the position that they held immediately prior to the leave and employee continues to participate in benefit plans sponsored by the employer. Also, during the 2003 SARS outbreak, the Ontario government introduced the SARS Assistance and Recovery Strategy Act that granted employees job protect leaves of absences related to SARS (which job protection was not otherwise provided for by employment standards legislation).
Legal guidance
This discussion demonstrates that a severe H1N1 outbreak can create a host of unusual legal problems. All of the issues considered here, as well as many others (such as whether a person who contracted H1N1 flu on the job is eligible for workers’ compensation) are complex. Employers cannot prevent a flu outbreak, but they can minimize flu-related legal problems by consulting proactively with their employment law counsel.
Heather Egan Sussman is a partner with McDermott Will & Emery LLP in Boston. Vanessa Gilbreth is an associate with McDermott Will & Emery LLP in Boston. Lorna Cuthbert is a partner with Stikeman Elliott, LLP in Toronto.
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