‘Tis the Sneezin’ – Does the Seasonal Flu Give Rise to the Right to Refuse Work?

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Article2020 | 02 | 13

‘Tis the Sneezin' – Does the Seasonal Flu Give Rise to the Right to Refuse Work?

As the cold weather arrives, so does the flu. The flu poses many challenges for employers, most significantly in regard to worker absences. There’s little doubt that an employer might be motivated by a business interest to encourage workers who are sick with the flu to stay home and rest so they can nip the symptoms in the bud, return to work sooner and avoid passing the flu on to co-workers and causing even more absences. But we all know that many workers will come to work with flu-like symptoms and tough it out for a day or two, feeling they’re still well enough to work (a phenomenon called “presenteeism”). Also, many workplaces involve working with clients or customers, who may come in to your workplace with flu-like symptoms.

With the recent news about the novel corona virus, many employers and workers have begun thinking more and more about this issue. How should an employer manage a healthy worker who, upon spotting a sneezing and coughing co-worker, customer, or client, packs up and refuses to work on the basis that his or her health is at risk because he or she might catch the flu or some other illness from these apparently sick individuals? Does a worker have a right under the occupational health and safety (OHS) laws to refuse work in those circumstances?

In this article, we’ll look at some of the work refusal laws and how they might apply to situations where workers might try to exercise their right to refuse work in a non-healthcare setting due to fears of getting sick.

Some Context from Health Canada
Health Canada states that the flu is a “common respiratory illness that affects millions of Canadians every year.” The agency states that the most effective way to minimize the risk of getting the flu is by getting vaccinated, followed by regular hand washing. Beyond immunization and hand washing, Health Canada’s recommendations that relate to controlling the spread of the flu are aimed at those who are actually sick, rather than those who are healthy. For example, it suggests certain coughing, sanitizing and hand-washing techniques. Significantly, Health Canada does recommend that people stay home if they are sick. But it’s important to note that Health Canada doesn’t specifically encourage people who are healthy to stay at home or avoid work to minimize the risk of getting the flu.

Here are some other flu facts from Health Canada that are important when considering work refusals:

  •  The influenza virus spreads through droplets from someone with the flu, who coughs or sneezes into the air;
  •  You can become infected if you shake hands with infected persons or touch contaminated surfaces, which can transfer the virus to your own eyes, nose or mouth;
  • People can spread influenza up to 24 hours before symptoms appear and until approximately 5 days after days after they do;
  • Not everyone who gets the flu develops symptoms, but they may still be able to spread it to others.

Thus, during the flu season, workers who refuse to attend the workplace because they see someone with symptoms of illness at work still risk catching the flu, whether from a co-worker who isn’t showing symptoms yet; from someone entirely unrelated to the workplace, such as at the mall or bank, or on the bus; or even in their own home, from a child or spouse who have been exposed to it from their daily interactions.

Application of the Right to Refuse
Work refusal laws differ from jurisdiction to jurisdiction and how a work refusal in the context of a the flu might be considered will differ from place to place, too. Generally speaking, work refusals require a danger to exist that poses a threat to a worker’s safety or health in the workplace. Further, an aspect of “reasonableness” often forms part of the assessment as to whether a work refusal is valid. That is, the worker’s refusal must typically be based on “reasonable cause” or “reasonable grounds.” In addition, work refusal laws often speak to whether the risk is “normal” in the course of the work.

A potential hurdle for a worker who argues that working with a sick co-worker or customer constitutes a “danger” is the reality that, even if a danger exists, the risk of catching the flu isn’t exclusive to the workplace. It may be something that becomes “normal,” making the refusal “unreasonable.” For example, in Manitoba, under Sec. 43 of the Workplace Safety and Health Act, a worker has a right to refuse work where he or she reasonably believes is a danger to his or her safety or health or safety, or the safety and health of others. “Dangerous” work generally means: work involving safety and health risks that are not normal for the job.
SAFE Work Manitoba published an information bulletin relating to the flu during the H1N1 pandemic that attempted to provide some guidance to employers on precautions to protect workers, but also to address the issue of work refusals.

The bulletin says that employees who work directly with members of the public aren’t generally considered to be at any higher risk of being infected with the flu, suggesting that it may not be reasonable for a worker to exercise his right to refuse. But the bulletin goes on to address the right to refuse, simply stating, “Workplace Safety and Health legislation gives all workers the right to refuse hazardous work and have an issue investigated by the employer. Workers concerned about contracting the disease at work should: Ask their employer for information on the policies in place at their workplace; and Access the information on H1N1 from the Manitoba Health and Safe Manitoba websites.”

Although the bulletin still left open the possibility of a work refusal based on the flu, it’s worth noting that the focus appeared to be on ensuring employers had appropriate policies in place to help their workers avoid getting the flu while at work. The bulletin set out a number of things employers would be expected to do to protect their workers, including: developing and implementing policies and procedures to reduce the spread of the virus that are consistent with guidelines outlined by public health, including hand washing, proper cough etiquette and staying at home if sick. Further, as the bulletin speaks to only pandemic H1N1 flu—and not the common flu—it’s likely that the risk of seasonal flu would be viewed as normal in the workplace and therefore, it may be unreasonable for a person to exercise a work refusal on that basis. So it may be difficult to exercise a work refusal based on the seasonal flu as long as there are measures in place by the employer to help protect workers from catching the virus while at work. Indeed, even in the context of something more serious, such as pandemic H1N1, it wasn’t clear that a work refusal would necessarily be considered reasonable.

Bottom Line
Each and every work refusal has to be considered individually and in consideration of the laws in each jurisdiction. Health Canada estimates that 4,000 to 8,000 Canadians, most of whom are seniors, die every year from flu-related pneumonia. Clearly, there are circumstances in which the flu might pose a danger to one’s health, making a work refusal more reasonable for one while otherwise unreasonable for another. In the face of other illnesses, such as a pandemic flu or something like the novel corona virus, the “reasonableness” factor will always have to be something that is considered, which may involve consideration of the current medical information and a person’s individual health circumstances. However, it appears safe to argue that, in most circumstances, a work refusal on the basis of being exposed to a co-worker, customer or client suffering from the seasonal flu wouldn’t be upheld under the OHS laws.

DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.

If you would like legal advice, kindly contact the author(s) directly or the firm's Chief Operating Officer at pknapp@tmlawyers.com, or 204.988.0356.

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About the Author
Jamie Jurczak
Jamie Alyce Jurczak