Disclaimer: This resource has been prepared to help the workplace parties understand some of their obligations under the Occupational Health and Safety Act (OHSA) and regulations. It is not legal advice. It is not intended to replace the OHSA or the regulations. For further information please see full disclaimer.
The Occupational Health and Safety Act (OHSA) gives a worker the right to refuse work that he or she believes is unsafe to himself/ herself or another worker. A worker who believes that he or she is endangered by workplace violence may also refuse work.
The Act sets out a specific procedure that must be followed in any work refusal. It is important that workers, employers, supervisors, members of joint health and safety committees (JHSCs and health and safety representatives understand the procedure for a lawful work refusal.
The right to refuse unsafe work applies to all workers other than specified types of workers in specified circumstances. For further information, please refer to subsections 43(1) and (2) of the Act.
In specified circumstances, the right to refuse unsafe work is limited for:
A worker can refuse to work if he or she has reason to believe that:
The worker must immediately tell the supervisor or employer that the work is being refused and explain the circumstances for the refusal [subsection 43(4)].
The supervisor or employer must investigate the situation immediately, in the presence of the worker and one of the following:
The refusing worker must remain in a safe place that is as near as reasonably possible to his or her workstation, and remain available to the employer or supervisor for the purposes of the investigation, until the investigation is completed [subsection 43(5)]. Although not stated as such in the Act, this interval is informally known as the “first stage” of a work refusal. If the situation is resolved at this point, the worker will return to work.
The worker can continue to refuse the work if he or she has reasonable grounds for believing that the circumstances that caused the worker to initially refuse work continue [subsection 43(6)]. At this point, the “second stage” of a work refusal begins.
If the worker continues to refuse to work after the completion of the employer’s investigation, the worker, the employer or someone acting on behalf of either the worker or employer must notify a Ministry of Labour inspector. The inspector will come to the workplace to investigate the refusal in consultation with the worker and the employer (or a representative of the employer). If there is a joint health and safety committee member, a worker health and safety representative or a worker selected by the worker’s trade union or, if there is no trade union, by the workers to represent the worker, they will also be consulted as part of the inspector’s investigation [subsection 43(7)].
While waiting for the inspector’s investigation to be completed, the worker must remain in a safe place that is as near as reasonably possible to his or her workstation and available to the inspector for the purposes of the investigation, unless the employer assigns some other reasonable alternative work during normal working hours or gives other directions to the worker where an assignment of reasonable alternative work is not practicable [subsections 43(10) and (10.1)].
The inspector must decide whether the circumstance(s) that led to the work refusal is likely to endanger the worker (or another person). The inspector's decision must be given, in writing, to the worker, the employer, and the worker representative, if there is one. If the inspector finds that the circumstance is not likely to endanger anyone, the refusing worker is expected to return to work. If the inspector finds that the circumstance(s) is likely to endanger the worker or another person, the inspector will typically order the employer to remedy the hazard.
Yes. While waiting for the inspector to investigate and give a decision on the refusal, the employer or supervisor can ask another worker to do the work that was refused. The second worker must be told that the work was refused and why. This must be done in the presence of a committee member who represents workers, or a health and safety representative, or a worker representative chosen because of knowledge, experience and training [subsections 43(11) and (12)].
The second worker has the same right to refuse the work as the first worker.
The Ministry is of the view that the worker is at work during the first stage of a work refusal and is entitled to be paid at his or her appropriate rate.
A person acting as a worker representative during a work refusal is paid at either the regular or the premium rate, whichever is applicable [subsection 43(13)].
No. The employer is expressly prohibited from penalizing, dismissing, disciplining, suspending or threatening to do any of these things to a worker who has obeyed or sought enforcement of the OHSA [subsection 50(1)]. Please see Part VI of this Guide – Reprisals by the Employer Prohibited, for more information.
Worker considers work unsafe.
Worker reports refusal to his/her supervisor or employer.
Worker may also wish to advise the worker safety rep. and/or management rep.
Stays in safe place.
Employer or supervisor investigates in the presence of the worker and the worker safety representative.
Worker goes back to work.
Issue Not Resolved
[proceed to the second stage]
With reasonable grounds to believe work is still unsafe, worker continues to refuse and remains in safe place.
Worker or employer or someone representing worker or employer calls MOL
MOL Inspector investigates in company of worker, safety rep and supervisor or management rep.*
Inspector gives decision to worker, management rep./supervisor and safety rep. in writing.
Changes are made if required or ordered.
Worker returns to work.
* Pending the MOL investigation:
NOTE: This chart is available in a print-friendly version.
The Occupational Health and Safety Act permits specified persons to stop work in “dangerous circumstances”.
In most cases, it takes both worker and management certified joint health and safety committee members to direct an employer to stop dangerous work (joint stoppage). One must be a certified member representing workers; the other, a certified member representing the employer. In some special cases, a single certified member may have this right. This chapter explains how and when work can be stopped.
Work can be stopped only in “dangerous circumstances” [subsection 44(1)].
This means a situation in which all of the following apply:
The right to stop work in dangerous circumstances does not apply to workplaces in which police and, firefighters are employed or to correctional institutions [clause 44(2)(a)] or to workplaces in which specified types of health workers are employed and where the work stoppage would directly endanger the life, health or safety of another person [clause 44(2)(b)].
If a certified member of the joint health and safety committee has reason to believe that “dangerous circumstances” exist, he or she may ask a supervisor to investigate. The supervisor must do so promptly and in the presence of the certified member who made the request. This certified member may be one representing either the workers or the employer [subsection 45(1)].
If the certified member believes that dangerous circumstances still exist after the conclusion of the supervisor's investigation and any remedial action taken, he or she may ask another certified member (who represents the other workplace party) to investigate [subsection 45(2)]. The second certified member must do so promptly and in the presence of the first certified member [subsection 45(3)].
The second certified member must represent the other workplace party. For example, if the first certified member represents workers, the second must represent the employer.
In prescribed instances, a certified member who represents the constructor or employer but who is not available at the workplace, may designate another person to act for him or her in a work stoppage under section 45 [subsection 45(9)].
The certified members can direct the employer to stop the work or to stop using any part of the workplace or any equipment, machinery, tools, etc. [subsection 45(4)].
The employer must comply with this direction immediately and must ensure that compliance is achieved in a way that does not endanger anyone [subsection 45(5)].
After taking steps to remedy the dangerous circumstances, the employer may request the certified members of the joint health and safety committee who issued the stop work direction, or a Ministry of Labour inspector, to cancel it [subsection 45(7)]. Only the certified members who issued the direction or a Ministry of Labour inspector may cancel it [subsection 45(8)].
If the certified members disagree, either member may ask a ministry inspector to investigate. The Act requires the inspector to investigate and provide both certified members with his or her written decision [subsection 45(6)].
If any certified member in the workplace, or a Ministry of Labour inspector has reason to believe that the procedure for joint stoppage of work will not be sufficient to protect the workers from serious risk to their health or safety, he or she may apply to the Ontario Labour Relations Board (OLRB) for a specified declaration or recommendation against the employer [subsection 46(1)], which are described in greater detail below.
In this type of application, the OLRB, using prescribed criteria, must determine if the employer has failed to protect the health and safety of workers. The criteria to be used by the OLRB are prescribed in the Criteria To Be Used And Other Matters To Be Considered By The Board Under Subsection 46 (6) of Act, O. Reg. 243/95 [subsection 46(6)].
If the OLRB finds that the procedure for joint stoppage of work is not sufficient to protect the workers, it may do one or both of the following:
The decision of the OLRB on an application is final [subsection 46(7)].
This procedure applies to a constructor or employer against whom the OLRB has issued a declaration under section 46 of the Act. It also applies to an employer who has advised the joint health and safety committee, in writing, that he or she voluntarily adopts the following procedure [subsection 47(1)].
If a certified member finds that dangerous circumstances exist, he or she can direct the employer to stop work or to stop using any part of the workplace or any equipment, machinery, tools, etc. [subsection 47(2)].
The employer must comply immediately and must achieve compliance in a way that does not endanger anyone [subsection 47(3)].
After stopping the work, the constructor or employer must promptly investigate in the presence of the certified member [subsection 47(4)].
After taking steps to remedy the dangerous circumstances, the employer can ask the certified member, or an inspector, to cancel the direction [subsection 47(6)]. The certified member, who made the direction or an inspector may cancel it [subsection 47(7)].
A certified member who receives a complaint that dangerous circumstances exist is entitled to investigate the complaint and to be paid for the time spent in exercising powers and performing duties during work stoppages.
Where a constructor, employer, worker in the workplace or representative of a trade union in the workplace has reasonable grounds to believe that the certified member recklessly or in bad faith exercised, or failed to exercise powers under section 45 or section 47 to stop work in dangerous circumstances , he or she may file a complaint with the OLRB The complaint must be filed within 30 days of the event to which the complaint relates. The Minister may be a party to these proceedings before the OLRB.
The Board is required to make a decision in respect of the complaint and may make any order that it considers appropriate (including the decertification of a certified member.)
The decision of the OLRB is final.
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Disclaimer: This web resource has been prepared to assist the workplace parties in understanding some of their obligations under the Occupational Health and Safety Act (OHSA) and the regulations. It is not intended to replace the OHSA or the regulations and reference should always be made to the official version of the legislation.
It is the responsibility of the workplace parties to ensure compliance with the legislation. This web resource does not constitute legal advice. If you require assistance with respect to the interpretation of the legislation and its potential application in specific circumstances, please contact your legal counsel.
While this web resource will also be available to Ministry of Labour inspectors, they will apply and enforce the OHSA and its regulations based on the facts as they may find them in the workplace. This web resource does not affect their enforcement discretion in any way.