The Question
I am a server and the restaurant I used to work at has asked me to return to work but I don’t feel safe interacting so closely with customers. What rights do I have to still collect CERB in this situation? What responsibilities must be met by the restaurant? I want to work but I’m afraid to do so. The servers are also being asked to clean the bathrooms since the restaurant can’t afford to pay cleaners any more. Is this allowed?
The First Answer
Lindsay A. Mullen, Partner, Norton Rose Fulbright, Calgary, A.B.
The main consideration in this server’s question is related to workplace safety in light of COVID-19. As businesses gradually welcome returning employees back to the physical workplace across Canada, the provinces have published guidelines and recommendations on sector-specific reopening plans. Generally, guidance provided on such plans sets out what measures and precautions employers and service-providers must or should adopt to protect the health and safety of their employees and customers in light of COVID-19; this includes health screening, enhanced hygiene, face masks, physical distancing and workplace sanitation.
In all provinces, employees have the right to refuse work if they have reasonable grounds to believe their workplace is not safe. Accordingly, the server should compare his or her restaurant’s protocols to the published guidelines. Any concerns should be specifically addressed with management. If the restaurant is not meeting the guidelines, the server may be able to refuse work.
With the enhanced workplace sanitation, employees may be asked to sanitize all commonly-touched surfaces or areas such as entrances, counters, chairs, tables, washrooms, shared equipment and kitchens. As such, the request for servers to assist in cleaning, including washrooms, is not unreasonable in the circumstances. Finally, the server may be eligible for CERB if he or she has stopped working because of reasons related to COVID-19; it is important to contact either Service Canada or Canada Revenue Agency to determine eligibility for CERB in light of the individual’s circumstances.
The Second Answer
Randy Ai, Principal Lawyer, Randy Ai Law Office, Toronto, Ont.
All employers are obligated to provide a safe environment for their employees under the Ontario Occupational Health and Safety Act. As a restaurant worker, your employer is responsible for providing you with personal protective equipment (masks, gloves etc.) to reduce the risk of COVID-19 transmission. Your employer should also enact policies to ensure that you are working in a clean environment (for example, supplying hand sanitizer). When you are interacting with customers, I recommend that you protect yourself with personal protective equipment. Your employer is also responsible for reminding customers of their legal and health responsibilities when they are dining at the restaurant. The law allows you to refuse unsafe work if the employer is forcing you to conduct work that would endanger your health.
If you are immunocompromised or have a pre-existing disability, then you should remind your employer of their obligations under the Ontario Human Rights Code to accommodate you. Some employees cannot return to work because of their health or disability status. If this is the case, you should clearly communicate your request for accommodation to the employer, and make them aware of the reason as to why you cannot return to work.
If your tasks and responsibilities have been unilaterally changed without your consent, then I recommend that you speak with a lawyer about your legal rights, and specifically about your rights to claim constructive dismissal. It is illegal for the employer to make significant and fundamental changes to your job description without your consent. Depending on how often you are required to clean the washroom, and whether this now overshadows your regular duties, you may have the right to claim constructive dismissal.
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