“Unsafe Work” and COVID-19

Victoria Merritt

By Victoria Merritt.

As COVID-19-related restrictions ease in British Columbia, employers and employees have begun to navigate the process of returning to work. Anxiety around safety in a non-virtual workspace, ongoing family care obligations, increasing economic pressure, and constantly evolving rules make for stormy seas to sail.

A number of my colleagues have already shared some useful return-to-work tips on our vlog, which you can find here. This blog post is specific to issues around workplace safety, the right to refuse unsafe work and how both employers and employees can work together to reduce on-site safety concerns.

The basics

Employers have an obligation to provide a safe workplace for employees, including specific duties related to mitigating the risk of COVID-19 transmission (for example, developing a COVID-19 safety plan). There are multiple resources available to assist employers in meeting those obligations.

Employees have the right to refuse and report unsafe work to their employer, who must investigate and, if necessary, remedy the situation. If the situation is not resolved, WorkSafe BC will become involved.

But what does “unsafe work” mean in a pandemic?

An employee must have a reasonable basis to believe that returning to the workplace will create an “undue hazard” to themselves or someone else. An undue hazard is an “unwarranted, inappropriate, excessive, or disproportionate” hazard. In the context of COVID-19, this means a situation where an employee’s work puts them at risk of exposure to COVID-19, and there are inadequate controls in place to protect them from that exposure. An employee’s individual circumstances are also relevant; for example, an employee who suffers from severe asthma may have a reasonable basis to believe that returning to a physical workspace is unsafe for them.

While it is normal and understandable to feel anxious about returning to the workplace in these uncertain times, fear alone does not mean the workplace is objectively unsafe or that a worker can refuse to return to their job.

What should you do?

Here are some ways both employers and employees can minimize return-to-work safety concerns:

For Employers

  • Communicate your return-to-work plan to your employees before they return, and then continue to communicate and enforce it.
  • Comply with your privacy obligations, particularly when it comes to your staff’s personal medical information.
  • Be sensitive to individual employee circumstances, including elder or childcare obligations and underlying health conditions (including mental health conditions, such as anxiety).
  • Consider designating a particular individual as the main point of contact for employees with questions on their safe return to work.
  • Make the safety process collaborative – ask employees to provide input and to identify any specific areas of concern.

For Employees

  • Communicate any safety concerns immediately to a person with authority in the workplace (or, if there is one, the person designated to deal with safety issues), and be specific.
  • Let your employer know about any relevant personal circumstances related to COVID-19, such as an elder or childcare obligations or an underlying health condition.
  • Get involved and let your employer know what measures will assure you and your colleagues that the workplace is safe to return to. You may offer a perspective that your manager does not have on potential risks (like a weekly delivery person who has been displaying cold or flu-like symptoms).

While the mantra “we’re all in this together” is a cliché, it still rings true: the more collaborative and communicative employers can be around safety, the more confident employees will be returning to work.

So, how have you been managing your return to work? If you have specific questions or want us to address a particular topic in a blog post or video, contact us!


NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.

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