Important Note on Work Refusals
Invoking the right to refuse unsafe work does not automatically mean that you can move to remote teaching. The legal standard is that the employer must give you a safe space from which to continue your duties. This could be remote teaching, or a different classroom.
We strongly recommend that you contact a member of the CUPE 3903 staff if you are refusing unsafe work, to ensure that the proper steps are followed.
While some departments and faculty councils have passed motions supporting the right to choose remote teaching, you may face discipline if you switch to remote teaching without the employer’s approval, as the administration does not recognize the legitimacy of these motions. If you are eligible for accommodations on the basis of illness or disability, or family status, start the process of requesting accommodations as soon as possible, rather than doing a work refusal.
Every worker in Ontario has the right to refuse unsafe work. Here is more information on who can use that right, as well as the steps and the limitations of the process.
Who can refuse unsafe work?
Any worker who has a genuine belief that their work is unsafe can — and should — exercise their right to refuse unsafe work. While several workers might submit claims at the same time if they share a particular unsafe workplace, these claims are always adjudicated on an individual basis, and each individual needs to believe that their workplace is unsafe.
What happens if I refuse unsafe work?
A refusal of unsafe work follows these steps:
- As soon as you believe that your health and safety is at risk, stop work and move to a safe location. Inform your supervisor and/or Chair of your department. We suggest that you also copy in, or notify in a separate email, a CUPE 3903 staff member, and the 3903 JHSC Coordinator <firstname.lastname@example.org>
- Your supervisor may:
- Agree that the situation is unsafe. They will then remedy the situation. Make sure your colleagues who share the workspace are made aware of the danger if you can.
- Disagree that the situation is unsafe. Inform the union ASAP. An investigation of your workspace involving your supervisor and a representative of the union will take place.
- Following the investigation, there is one of two results:
- The investigation finds your work is unsafe. The employer must remedy the situation immediately. You cannot be asked to return to work until the unsafe conditions are remedied.
- The investigation finds your work is safe. If you disagree, inform your supervisor. They must contact the Ministry of Labour.
- The Ministry of Labour will conduct an investigation. The investigator will either order York to remedy the situation, or find the workplace safe and order you to return to work.
Note that, while refusing unsafe work, the employer can assign you alternate duties or an alternate workplace, for example moving classes to another part of campus or remote delivery.
Can I be disciplined for refusing unsafe work?
No. As long as you have a genuine belief that your work is unsafe, you cannot be disciplined for refusing work, regardless of the final result of the investigation. However, the decision of the Ministry of Labour investigator is final, barring appealing to the Ontario Labour Relations Board; refusing to return to work if ordered to after the Ministry investigation may result in discipline.
Is working on campus during COVID-19 not inherently unsafe?
As long as the COVID-19 pandemic continues, there is no guarantee of safety when interacting with other people, as is unavoidable on campus. However, the Ministry of Labour has been consistent in ruling, in the case of other unsafe work refusals, that the existence of COVID-19 in itself does not constitute an unsafe work environment. You would need to demonstrate that the employer is not complying with the provincial standards around distancing, cleaning, air circulation, masks, etc., whatever those might be at the time.
If a student gets belligerent with me because of the mask mandate, for example, can that count as unsafe work?
If you have a genuine belief that continuing to work in the presence of a belligerent student represents a threat to your health and safety, you have the right to stop work and remove yourself from the situation. Let your supervisor and the union know as soon as possible that you are exercising your right to refuse unsafe work.
What are the limitations of the right to refuse unsafe work?
The two biggest limitations of the right to refuse unsafe work are that it is individual, and that it relies on the standards set by the Ministry of Labour and the province more generally. This means that members cannot legally enact a work refusal in solidarity with other colleagues who are facing unsafe working conditions. It also means that, if the province enacts unreasonable policies (for example lifting all distancing requirements for post-secondary institutions), this is the standard against which a Ministry inspector would judge your claim of unsafe work. Despite these limits, if you believe your work is unsafe, you should exercise your right to refuse unsafe work immediately.