If an employee has reasonable grounds to believe that their work is unhealthy or dangerous to themselves or anyone else at their workplace they may exercise their right to refuse work.
What does “reasonable grounds to believe” mean?
Reasonable grounds to believe in this context means that an employee has an honest belief that their work will cause them or someone else harm. If this is the case, the employee has the right to refuse work. The right to refuse may be used only where the employee has such reasonable grounds to believe that their work is unhealthy or dangerous to themselves or someone else. The right to refuse is only to resolve concerns and issues related to health and safety.
How does an employee refuse to do work that they believe to be unsafe or unhealthy?
These are the steps an employee must follow to refuse such work:
1. Immediately report their concern to a supervisor.
2. Remain at work, but go to a safe place, away from the hazard. [The employee should not leave the workplace altogether without your permission. However, there may be conditions such as bad air quality, or high noise levels, throughout the workplace for example, that requires the employee to leave the workplace.]
What happens next?
You as an employer have a duty to ensure a safe and healthy workplace. When an employee refuses work:
1. If you agree, you must take action to remedy the situation and eliminate the subject hazards.
2. If you do not agree, you need to explain to the employee why the condition is not unsafe or unhealthy.
3. You can reassign the employee to other work.
4. If the matter is not rectified to the employee’s satisfaction, the employee must report it to the Joint Occupational Health and Safety Committee (JOHSC) / representative, or the OH&S Division of Nova Scotia Labour and Advanced Education. Note: If a construction project JOHSC exists, the refusing employee should follow the normal procedure for work refusals established for the company JOHSC. It is not normally the role of the project committee to investigate work refusals; however, since work refusals at a project have the potential to impact health and safety at the entire project, you should notify the project committee. For more information about the role of construction project JOHSC’s during work refusals, see pp.9 and 10 of the Department’s publication
Construction Project Joint Occupational Health and Safety Committees: A Practical Guide (PDF: ! File not found).
As an employer, what rights and responsibilities do I have during a work refusal?
If a work refusal is based on a reasonable belief, the following rights and responsibilities on your part are triggered:
1. You must pay the employee their regular wages or salary and grant the same benefits during the work refusal. Taking any action that adversely affects an employee’s terms or conditions of employment as a result of their exercising their right to refuse constitutes “discriminatory action”. If a dispute arises, the employee can claim lost pay through a complaint of discriminatory action. See Info Sheet A-4 “Discriminatory Action”.
2. You may offer the refused work to another employee – where you believe the work can be done without hazard to health and safety – provided that employee is made aware of the work refusal, the reason for the work refusal, and that they also have the right to refuse the work if they have reasonable grounds to believe that the work is unsafe or unhealthy.
3. You may re-assign the employee to other work.
4. You must permit the employee to accompany an Officer of the OH&S Division, and/or a JOHSC representative, in a physical inspection of the workplace in relation to the work refusal.
5. If you have taken remedial action to the satisfaction of the employee, or if the JOHSC unanimously advises the employee to return to work, or if an OH&S Officer advises them to do so, pay protection for the employee ends.
For how long can a work refusal continue?
The Occupational Health and Safety Act does not specify a time frame for a refusal to end. However, an employee may continue their work refusal until
- you have taken remedial action to the satisfaction of the employee;
- the JOHSC has investigated the matter and has unanimously (see explanation below) advised the employee to return to work; or
- an OH&S Officer has investigated and has advised the employee to return to work.
What does “unanimously” mean?
If all JOHSC members find that the subject work is not unsafe or unhealthy, the JOHSC will advise the employee to return to work. The unanimous decision to advise the employee to return to work must be made by all the members investigating the work refusal, and who must all agree that the employee should return to work. The JOHSC, as a whole, or a quorum of the committee can investigate the refusal. However, whatever the composition of the investigating group, the group must be unanimous in its decision if the JOHSC is to advise the employee to return to work.
Note: Work refusals are considered a high priority when reported to the OH&S Division. An investigation into the work refusal may take place on the same day it is reported.
How can I learn more?
To find out more about the right to refuse work, see Sections 43 and 44 of the Occupational Health and Safety Act, or contact:
Nova Scotia Labour and Advanced Education
Occupational Health and Safety Division
5151 Terminal Road, 5th Floor
Halifax, Nova Scotia B3J 2T8
Phone: (902) 424-5400 or 1-800-9LABOUR (in N.S.)
Fax: (902) 424-5640
Single copies of related publications are available from the Occupational Health and Safety Division of Nova Scotia Labour and Advanced Education at no charge.