A new definition of danger under federal health and safety law is supposed to bring clarity to work refusal situations. It has instead created significant questions and concerns.
Any employee subject to Part 2 of the Canada Labour Code (the Code)
still has the right to refuse work as long as they have reasonable cause to believe that it presents a danger. Danger, however, is now defined as:
“any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.” [s. 122(1)]
Essentially the term has moved from one that includes a potential hazard to a narrower view of an imminent or serious threat. There are concerns this will limit an employee’s right to refuse work and place safety and health at risk.
Of specific concern is the removal of references to illness, chronic illness, disease and damage to the reproductive system in this new definition. In light of the thousands of Canadians who die annually as a result of work-related illness and disease and a growing recognition of hazard exposure implications on reproductive health, this concern is significant.
Though, updated support documents on the Labour Canada web site (see below for details) offer that the reference to “life or health of a person” in the new definition includes both injury and illness. The government has also defined “serious threat" to mean a substantial threat to health or life and includes “potential” substantial threat. One could argue exposure to carcinogens, endocrine disruptors and a host of other toxic substances pose this “potential” substantial threat.
As such, it remains unclear how the new definition of danger and other changes (see below) to the right to refuse will be interpreted and enforced.
Examples of these additional changes to the Code
that some believe might negatively impact work place safety and health include:
changes to the work refusal process and the investigation (or lack thereof) of continuing work refusals; and
the transfer of investigation powers, duties and function from specifically-trained health and safety officers to the Minister of Labour (who may or may not delegate this power back to these officers or another designate).
For our part, the WHSC has updated training programs for workplaces governed by federal health and safety law. These include workplaces in sectors with national scope—generally those crossing provincial and/or national boundaries. Examples of these sectors include: air, water, road and rail transport, banking, broadcasting, energy and mining, grain elevators and federal public service.
The WHSC has also developed additional resources designed to give all workplace parties in federally-regulated workplaces a better understanding of the amended right to refuse provisions in the Code
Want to access related resources from the WHSC?
Right to refuse dangerous work—fact sheet
Right to refuse dangerous work—keys steps chart
Want additional information from Labour Canada?
Canada Labour Code (Part 2)
A summary of these changes to the Canada Labour Code (Part 2)
Want to access related internal policy guidelines (IPGs)?
Definition of Danger
Participation of the Work Place Health and Safety Committee or Representative
Danger as a Normal Condition of Employment
Complaint is Trivial, Frivolous, Vexatious or Made in Bad Faith
Want to know about WHSC health and safety training for workplaces governed by federal health and safety law?