Legal News

Employers’ New OH&S Obligations When Reassigning Refused Work

WorkSafeBC’s Board of Directors recently approved amendments to BC’s Occupational Health and Safety Regulation (“OHSR”) regarding an employer’s obligations when reassigning refused work. These amendments will take effect on August 22, 2022, and most notably introduce new requirements that must be met before an employer will be able to reassign work to other workers following an unsafe work refusal.

BC employers and workers will likely already have some familiarity with section 3.12 of the OHSR, which addresses a worker’s right to refuse unsafe work, the procedures for reporting an unsafe work refusal, as well as the processes for workers, employers, supervisors, worker safety representatives and WorkSafeBC to follow in resolving these matters. Generally, for the purposes of what constitutes unsafe work, per section 3.12(1), “a person must not carry out or cause to be carried out any work process or operate or cause to be operated any tool, appliance or equipment if that person has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person.” In accordance with section 3.12(2), a worker who refuses work must immediately report the circumstances of the unsafe condition to the worker’s supervisor or employer, following which, under section 3.12(3), the employer or supervisor receiving the report must immediately investigate the matter and ensure that any unsafe condition is remedied without delay, or if the report is not valid in their opinion, must so inform the person who made the report. If this does not resolve the matter, sections 3.12(4) and (5) outline the required procedures for further investigation in the presence of the reporting worker and their safety representative, and potentially involving a WorkSafeBC Officer as a final step to resolve the matter.

The approved amendments will add a supplemental section 3.12.1 to the OHSR, which mandates that if a worker refuses work under section 3.12, the employer must not require or permit another worker to do the refused work unless:

a) the matter has been resolved under section 3.12(3), (4), or (5); or

b) the employer has, in writing, advised the worker and a person referred to in section 3.12(4)(a)(b) or (c) [i.e. a worker member of the joint committee, a worker selected by a trade union representing the worker, or any other reasonably available worker selected by the worker, as applicable] of all of the following:

i. the refusal;

ii. the unsafe condition reported;

iii. the reasons why the task would not create an undue hazard to the health and safety of the other worker or any other person; and

iv. the right of the other worker to refuse unsafe work.

Even prior to these amendments, it was prudent for employers to communicate information regarding a work refusal before requiring or permitting another worker to perform the refused work. Employers should be aware that if they have not already adopted these practices in the course of reassigning unsafe work, section 3.12.1 of the OHSR will require that they do so, in writing, as of August 22, 2022.

If you have any questions regarding an employer’s obligations with respect to unsafe work refusals or the reassignment of refused work, please contact Andrew Wood or Amanda Alberti for further information.