The ongoing flare-up of the ebola virus is currently front page news. Notwithstanding that as of the time of this writing, Canada has yet to see its first confirmed case of the disease, government and health leaders are scrambling to determine what precautions should be taken to protect the public.
In both Ontario and Québec, some paramedics have refused to work until their employers take active steps to protect them from possible ebola exposure. Both groups demanded specialized personal protective equipment (PPE) and training in order to negate the risk of infection.
In Ontario, the paramedics were ordered to return to work.
In Québec, the ambulance service was ordered to provide the measures and precautions demanded by the workers.
What led to the different responses of the two regimes?
In Ontario, the employees faced two major impediments to the refusal to work. For one, the section of the Occupational Health and Safety Act which permits employees to refuse dangerous work specifically excludes persons “employed in the operation of an ambulance service,” as well as other first responders such as police and firefighters, if the danger was inherent in the worker’s work. There is a strong argument to be made that, notwithstanding the lethality of ebola, exposure to dangerous and potentially fatal diseases, such as AIDS, is inherent in the work of a paramedic. Of course, employers must still take precautions in accordance with their general and specific statutory duties.
In addition, the Ministry, in ordering the paramedics back to work, stated that “hypothetical” situations are not legitimate reasons to refuse work. This is a logical position to take, as to suggest otherwise would allow work refusals around any equipment or situation that could be “hypothetically” dangerous, even if such danger might only exist due to a gross malfunction or extreme operator error. Clearly, the Ministry of Labour viewed the danger posed to the workers by ebola as too speculative to warrant the refusal to work.
Under the Québec regime, on the other hand, there is no exclusion from the work refusal provisions for first responders. That being said, the criteria for determining whether a work refusal is reasonable are substantively similar.
It is possible that the Ontario legislation, with its specific exclusion for first responders in some instances, led to the distinct decision of the Ministry of Labour.
It may also simply be that the Québec inspector responsible for the investigation of the work refusal had a different opinion as to the danger that paramedics face from ebola. Certainly, many news outlets are beating the drum as to the dangers of the disease, notwithstanding the assurance of many experts that the risk to the public has been overstated.
What Employers Should Know
The situation highlights the need for employers to be aware of the potential that workplace dangers can shift. A constant re-assessment of potential risks and safety measures is critical to maintain compliance with occupational health and safety laws. Likewise, in evaluating a refusal to work, employers must be aware of contemporary concerns. It seems likely that had this refusal taken place six months ago, the Québec refusal would also have been dismissed. However, it is clear that the landscape has changed since then.
Employers should plan ahead and respond to current events in their health and safety programs, so as to avoid potential slowdowns from such emerging health and safety concerns. In the wake of the SARS crisis many employers prepared Emergency Response Plans and/or Business Continuity Plans. Now may be a good time to dust them off and update them.