Work refusals: What the law says, plus 8 ways to prevent and manage

September 5, 2024

Jessica Bowes

2 workers talking in a robotic arm factory.

A worker’s right to refuse unsafe work is enshrined in Ontario’s Occupational Health and Safety Act (OHSA, Section 43). So is the employer’s duty to investigate the matter and try to resolve it internally. “Resolving a refusal involves controlling the hazardous situation, if present, in a way that removes any dangerous circumstance,” says WSPS Health and Safety Consultant Ted Balazs.

When can a worker refuse to work?

A worker can refuse to work if they have reason to believe that they (or another worker) is likely to be endangered by:

any machine, equipment, device or thing the worker uses or operates
the physical condition of the workplace or workstation
workplace violence
contraventions of OHSA or its regulations by the employer

What happens when a worker refuses unsafe work?

First stage: The worker immediately tells the supervisor or employer that the work is being refused and explains the circumstances for the refusal.

The supervisor or employer investigates the situation immediately, in the presence of the worker and a worker member of the joint health and safety committee, or alternative (specified in Section 43). The worker who refuses unsafe work remains in a safe place near their workstation until the investigation is completed. If the issue is resolved, the worker goes back to work. If not, the refusal moves to the second stage.

Second stage: Following the investigation or any steps taken to deal with the circumstances of the refusal, if the worker still has reason to believe they are endangered, the Ministry of Labour, Immigration, Training and Skills Development (MLITSD) is called in. An MLITSD inspector investigates in the presence of the worker, safety representative and supervisor or management representative. The inspector renders a decision.

How can a work refusal be resolved internally?

Ted offers this example:

A worker is running parts through a washer. The washing fluid contains a chemical, and the worker is concerned that airborne concentrations of the chemical are unsafe. The worker reports the unsafe condition to their supervisor but no action is taken. The worker then initiates a work refusal with their supervisor.

The employer investigates, calling in an occupational hygienist to test the level of the chemical in the air. The hygienist finds the occupational exposure limits (OELs) for the chemical have been exceeded. Working with the hygienist, the employer examines ways to reduce exposure, such as switching to a less hazardous product, improving ventilation, etc.

The employer chooses the best controls and puts them in place, informing the worker. The hygienist retests the level in the air, finds it to be safe, and the matter is resolved. The hygienist provides a written report to the employer.

“Ideally, this is how a work refusal should play out,” says Ted. Too often, though, it doesn’t go this smoothly and an inspector from the MLITSD is called in to resolve the matter.

Ted says that when workplaces are unable to resolve work refusals internally, it’s usually because:

there is a poor safety culture and Internal Responsibility System (IRS) in the workplace.
the employer and supervisor don’t know about the worker’s right to refuse as per legislation.
workers and supervisors have no training on the rights of workers including the right to refuse, or the employer’s responsibility to investigate and resolve concerns.
communication between the workplace parties is poor (workers, supervisors, employer and joint health and safety committee members).
investigations are not carried out thoroughly and/or effective controls are not put in place.

Reprisals are prohibited

Section 50 of the OHSA establishes that no reprisals can be taken against workers who exercise their health and safety rights. Employers are prohibited from penalizing, dismissing, disciplining, suspending or threatening a worker who has obeyed or sought enforcement of the OHSA. Ignorance of the law around the right to refuse can sometimes lead employers to take reprisals against the worker for exercising their right, such as reprimands, discipline, or even dismissal. “This is strictly forbidden by law. It will have negative impacts on the workplace culture, and can lead to very hefty fines for the employer,” warns Ted.

8 ways to prevent and manage work refusals

Invest in your IRS and safety culture. “Develop a comprehensive health and safety policy, train employees and supervisors about their roles and responsibilities, encourage workers to report hazards and concerns without fear, and identify areas for improvement through regular audits,” says Ted. “Work refusals are much less likely to occur when everyone is working together to prevent injuries and illnesses, when there are open lines of communication, and when worker input is encouraged.”
Take action on a reported hazard before it turns into a work refusal. “If the Ministry comes in to resolve a work refusal, they don’t want to hear from the worker that the hazard was reported five times before the work refusal was initiated,” warns Ted. “Supervisors need to thank the worker who reports a hazard, investigate, put controls in place, if needed, and inform the worker of their actions.”
Provide workers with training on hazards and controls. “You want your workers to be empowered with knowledge so they can identify and report hazards and fulfill their role in the IRS,” says Ted.
Ensure supervisors have good interpersonal skills. “If a worker is afraid to report a hazard to a supervisor because they will be met with disapproval or anger, or know the concern will be dismissed, your IRS cannot function properly,” says Ted.
Train workers on the work refusal process. “Education is the key to preventing work refusals,” says Ted. Workers need to understand when they can refuse work, and when they can’t; what constitutes “being endangered” or “dangerous circumstances” as described in Section 44 of the OHSA; and when making a refusal how to articulate why they believe the work is unsafe. “I always recommend that supervisors include work refusal discussions during monthly safety talks.”
Train supervisors on the work refusal process. Supervisors need to know how to respond to a worker who is refusing unsafe work, how to elicit information, and how to investigate the work refusal. “The supervisor can’t just say, ‘No, there’s no hazard; go back to work,’” says Ted. “It’s not an arbitrary decision by the supervisor; supervisors must go through the proper procedures and investigate.” When training supervisors, add a practical element, suggests Ted. “Draw up a work refusal scenario and role play.”
Get help during the investigation of a work refusal. “The supervisor needs to determine if a dangerous circumstance,” says Ted. “This might require the skills and knowledge of an internal expert – maintenance, health and safety person, or member of the joint health and safety committee – or an outside expert, such as a hygienist.”
Document everything. “Documentation is key to ensuring you have a health and safety management program in place and are able to provide evidence that it is functioning,” advises Ted.