Occupational Health and Safety
Government and school district re-entry plans identified the health and safety of students and staff as a priority and guiding principle. Further, under the provincial Occupational Health and Safety Act (the Act), employers must ensure workers’ health and safety to the extent that is “reasonably practicable”. Employees also have the right to refuse unsafe work, and this right applies to schools and teachers in the context of COVID-19 and pandemic response measures. However, there can be disputes as to whether the bar of “unsafe work” is met in certain circumstances – conditions must rise to the level of imminent risk of dangerous work for a refusal to be upheld. The OHS standard is not one of perfection or elimination of all risk in the workplace.
In the current context, NLTA staff are in communication with NLESD officials regarding what precautions and protections will be in place to ensure teacher safety, particularly in the context of confirmed and extensive community spread of COVID-19. For example, some students with complex needs require close contact with the adults who work with them and may be unable to wear a mask. Teachers who work with students who will be availing of in-school learning should, first and foremost, ask their employer to clearly identify what safety measures will be in place to ensure that their work can be done in a manner and environment that is as safe as is reasonably practicable (this is the standard under the Occupational Health and Safety Act). This could include the provision of Personal Protective Equipment (PPE), continued pre-attendance COVID-19 screening, availability of student assistant supports, adequate space and cleaning protocols, etc.. NLTA staff are seeking information from the NLESD on what the specific Public Health guidance is with respect to the safety of teachers working in person with students with particular needs in the current pandemic and public health emergency context. Individual teachers should also seek clarity from their administration regarding what advice has been given by Public Health regarding the level of precautions required in the current COVID context, and which precautions will be provided in their specific situation.
Under the Occupational Health and Safety Act, any member who has a reasonable, subjective opinion that their health and safety or that of another person in the workplace is endangered, may refuse to do the work in question until corrective action is taken by the employer or until an investigation is completed. Further information on the right to refuse unsafe work is available here: http://www.nlta.nl.ca/school-re-entry-occupational-health-safety/
Under the Act, if a worker has a reasonable, subjective opinion that their health and safety or that of another person in the workplace is endangered, they may refuse to do the work in question until corrective action is taken by the employer or until an investigation is completed. The procedure to be followed when exercising one’s right to refuse is very specific and must be communicated clearly to the employer. The refusal must be accompanied by an explanation of why the employee believes the work is unsafe, and must be communicated on an individual basis by each employee who feels they are being exposed to the danger (for instance, refusals by a group of employees in solidarity with one individual who believes they are endangered is not permitted). Employees who exercise their right to refuse do not lose pay or benefits, but can be reassigned to other work, if possible, while their refusal is being investigated/addressed. A “step by step” guidance document on the right to refuse can be accessed here.
With respect to teachers, it must also be remembered that they have a statutory duty under the Schools Act, 1997 to supervise students at school. This duty may mean that a member planning to exercise their right to refuse unsafe work will need to do so prior to the start or at the end of a school day, as a teacher cannot simply leave the workplace if that would result in students being unsupervised.
The procedure for teachers to refuse unsafe work is as follows:
- Immediately report the dangerous situation, including an explanation/rationale, to your principal. This should be done prior to starting or at the end of a work day in order to avoid issues related to the required supervision of students. Making this report in writing, with NLTA assistance, while not required by the Act, is recommended – the NLESD has developed a work refusal form. Prior to reporting to work, ask how you will be reassigned until the investigation is completed. If you are not reassigned, remain off work. Do not access sick leave.
- If the situation is resolved to your satisfaction by the principal, return to work. Principals should seek guidance/support in this regard from school district HR staff.
- If the situation is not resolved to your satisfaction, the matter will be referred to the school Occupational Health and Safety Committee (or OHS Worker Representative) for investigation.
- If the OHS Committee (or OHS Worker Representative) is unable to resolve the issue to your satisfaction, you have the right to refer the matter to the OHS Division of Service NL. An Officer will be assigned to investigate the matter and determine if/when you will be advised to return to work.
During all stages of the investigation process, a teacher may be reassigned to other duties or would otherwise stay home without loss of pay or benefits. The employer cannot assign another worker to do the work unless they have been informed of the work refusal and the reasons for it.
The existence of COVID-19 in the province or a community, in and of itself, may not be sufficient to establish that work is dangerous. Any employee refusing unsafe work should be able to demonstrate that the employer is not appropriately managing the risk of exposure – for example, that safety protocols under re-entry plans or as directed by the school districts are inadequate or are not being followed, or that required resources to implement Public Health safety guidelines are not being provided.
The Association has filed a policy grievance with the Department of Education regarding lack of consultation with NLTA in developing government’s K-12 Education Re-Entry Plan and the failure of the Plan to meet the standards expected by provincial OHS legislation. The Association contends that the Plan is characterized by a systemic disregard for accepted, sound and oft repeated Public Health advice, and therefore fails to meet these legislative standards. While the Act sets out the school districts’ occupational health and safety obligations, as employers, government’s Plan directs and limits the districts’ actions and options in a manner that has effectively ensured non-compliance with the Act. The grievance letter can be viewed here. The grievance meeting took place on August 26 and the Department has denied any violation of the collective agreement or OHS legislation. NLTA has filed an arbitration notice in this matter and hearing dates have been scheduled for May/June 2021.
NLTA members seeking advice/assistance on specific matters related to their individual circumstances should contact the Association via firstname.lastname@example.org.