Ontario’s labour ministry has rejected all teachers’ COVID-19 work refusals — and almost everyone else’s. Internal memos hint at why

Four days after the World Health Organization declared COVID-19 a global pandemic, Ontario's team of health and safety inspectors received a lengthy document outlining how to enforce workplace laws in a once-in-a-generation crisis.

Marked confidential, the March 15, 2020, document provided guidance to health and safety inspectors on a range of issues: masking requirements, occupational illness reporting, and whether pregnant employees should continue working.

It also addressed an issue that was top of mind for many educators, who would soon be returning from spring break: Could teachers refuse work they considered unsafe?

After 18 months, thousands of school-related COVID cases, and the longest school closures in the country, the answer has been no. Of the 44 work refusals filed in the education sector to date, none have been accepted, according to ministry data.

The education sector is not unique: over the past year and a half, just eight of 482 work refusals across the province have been accepted.

Under provincial labour laws, work refusals needed to meet certain criteria to be upheld. Most relevant, in the context of COVID-19, was whether a workplace's physical condition presented a clear safety risk.

But the ministry's March 2020 guidance document obtained by the Star through a freedom-of-information request said general concerns related to COVID-19 would not meet the requirements" set out in law. The labour ministry also did not have the power to recommend a school closure to protect workers, the document noted - that power lay with health officials.

Experts say work refusals exist to raise the alarm about serious safety risks. Unlike a complaint to the labour ministry, work refusals allow employees to demand immediate corrective action: they can't be forced back on the job until the issue is resolved or their workplace is deemed safe.

It provides the backstop when everything else has failed," said Eric Tucker, a law professor with York University, who has done extensive research on Ontario's occupational health and safety system.

But during the pandemic, that backstop has been ineffective for nearly every worker who has tried to use it. And now, with a fourth wave looming, many Ontario workers are again returning to workplaces that could put them at risk - especially teachers, who will be working with a largely unvaccinated population.

There are just so many concerns right now," said Karen Littlewood, president of the Ontario Secondary School Teachers' Federation.

Even if rejected, all work refusals during the pandemic have been investigated as complaints, said Ministry of Labour spokesperson Kalem McSween. In some cases, the health and safety concerns were resolved internally by the workplace parties," he added, noting that some work refusals may also have failed because an inspector determined there was no immediate danger." Some sectors also have a limited right to refuse unsafe work. Health-care workers, for example, can only do so when it wouldn't jeopardize another person's life and when the risk is not considered inherent" to the job.

Beyond health care, the August guidance obtained by the Star elaborated on what circumstances were considered unsafe enough to refuse work. A workplace needed to have a confirmed or suspected case of the virus, and the worker filing the refusal had to be exposed in their present circumstances." But even if the worker was on the job with an infected colleague deemed essential by the employer," a work refusal would still be denied if the COVID-positive individual was entering the workplace by a different entrance" and was working alone."

The guidance is still current and based on the Ministry of Health's advice on COVID-19 testing and clearance, said McSween.

These health guidelines say public health units may permit workers to self-isolate on the job in exceptional circumstances" where they serve a critical" function.

Overall, the approach seems to reflect a failure to apply the so-called precautionary principle - the idea that maximum precautions should be followed in the absence of scientific certainty about a hazard, said Tucker.

I think the precautionary principle in so many areas just got subordinated to other concerns."

Workers are usually reluctant to file work refusals even when they're genuinely concerned," he added. Low acceptance rates, he said, send the message that exercising this right won't be effective.

Ideally employers shouldn't have hazardous conditions," he said. Obviously that sometimes doesn't happen. So the bottom line is that when a worker has reasonable grounds to believe that working conditions are endangering them, then they should be able to refuse that work."

As of September, all kindergarten classes and all learning spaces without mechanical ventilation will be required to have at least one air purifying (HEPA) filter. Schools with mechanical ventilation, per recent provincial guidance, are expected to increase outdoor air exchanges and improve the grade of filter used.

The debate over school safety amid COVID - and how best to balance infection risks with the social impact of school closures - is a difficult one. The province's COVID-19 Science Advisory Table warned this summer that school closures are particularly hard on low-income and racialized families. Ontario students have spent 26 weeks outside the classroom since the pandemic began, a significant challenge both for children's development and for working parents.

But the Delta variant is far more infectious and emerging data suggests that fully vaccinated people with breakthrough infections may transmit the virus just as easily. Children can also spread the virus at school, though the extent to which this occurs depends on a variety of factors, including the school's community infection rates and public health measures.

That means safety precautions in schools are now more critical than ever. But these have been cause for concern for some teachers over the past year and a half.

Of the 44 work refusals filed in the education sector, 38 were in schools - with the remainder related to school buses, universities or adult education. The Star obtained one work refusal filed at a downtown Toronto school April 6, detailing numerous safety concerns including about the quality of masks being used, poor ventilation and an absence of information about air exchange in classrooms.

Within hours of the refusal, Toronto Public Health ordered the closure of in-person learning. Two days later, the labour ministry visited the downtown school where the work refusal occurred, noting that the teacher was no longer in the workplace." The ministry investigated the work stoppage as a complaint instead - and found that ventilation systems were still operating at their pre-pandemic settings, rather than with increased fresh air exchanges.

At the time of the visit, the health and safety representative with the school board agreed to coordinate with (the) facility department to increase (the) setting of the fresh air circulation," the ministry report says.

Health authorities advise that the transmission of COVID-19 occurs through droplet contact," the report added. No safety orders were issued to the school.

A longstanding concern is provincial bodies' delay in embracing the science around aerosol transmission, said Tucker.

That kind of left workers without the support that you know they might hope for."

Employees filing work refusals must go through several steps. First, they must report the hazard to their supervisor. (In the case of teachers, there is an extra step: their supervisor must determine if the work stoppage would put a pupil's life at risk. For example, if kids need help being evacuated because of a gas leak, a teacher cannot refuse unsafe work until students are safe.)

In all other cases, a teacher refusing work leaves their work station and waits for their employer and joint health and safety rep to investigate the hazard. If this doesn't yield satisfactory resolution, the Ministry of Labour investigates.

In the early days of the pandemic, the province saw a significant increase of work refusals" across the province, prompting the labour ministry to set up a committee specifically to deal with the influx, according to internal memos obtained by the Star which span from March 11 to the end of December 2020.

The purpose of the committee was to ensure consistency in decision making province-wide," with a particular focus on the health-care sector and any workplace with two or more work refusals. Any COVID-related refusals deemed as contentious" could also be referred to the committee, composed of managers, safety experts, lawyers and infection control specialists.

While the committee later pivoted to deal more broadly with the high volume of complaints, reprisals and notifications" about COVID cases that began overtaking work refusals, the overall guidance - including that issued in August of 2020 - continued to note that most work stoppages wouldn't meet the required threshold.

As well as the right to refuse unsafe work, workers have the right to know about workplace hazards and participate in creating a safe workplace. Those principles are key not just to ensuring workplace safety - but to ensuring workers feel safe, said Rafael Gomez, a university of Toronto professor and director of the Centre for Industrial Relations and Human Resources.

This is particularly true in education, where risk might vary not just by school - but sometimes by classroom: do the windows open? Is the mechanical ventilation working properly?

I think those things can legitimately scare people," said Gomez.

In that context, it's more important than ever to communicate clearly about working conditions, including possible risks and the precautions in place, he said. By September, all Ontario schools will be required to publicly post what they are doing on ventilation online, and will be provided a template to do so.

But some want the province to go further. The New Democrats, for example, have called for air quality tests to be conducted in every classroom, similar to New York City, which created school ventilation action teams" to assess air quality in all schools ahead of September.

Until you actually measure the air in there and what (air) exchange is happening, it's just a bit of ventilation theatre," said Seth Bernstein, a secondary school teacher and parent to an elementary school-aged kid.

The education ministry says 70 per cent of Ontario schools have mechanical ventilation systems, which have updated to operate at a higher capacity through provincial and federal funding.

But as previously reported by the Star, many schools without any mechanical ventilation at all will not have upgrades completed by September; federal funds for the projects were only released this spring. Experts have already warned that non-mechanically ventilated classrooms may need more than one HEPA filter, and that usage of these filters requires careful monitoring to be effective.

Our government takes the importance of air ventilation improvements seriously, which is why over 1,600 schools are benefiting from 2,000 new projects that will improve air quality and school safely over the summer," said a spokesperson for Education Minister Stephen Lecce. We will continue to invest and continue to keep schools safe, following the advice of Ontario's Chief Medical Officer of Health."

In a statement to the Star, labour ministry spokesperson McSween said 1,633 visits have taken place in the education sector, including schools, post-secondary institutions and daycares - based in part by assessing the local risk of COVID transmission, as well as size and age of the school, according to the guidance documents obtained by the Star. Inspectors have issued 553 orders to fix safety violations to date.

This year, the ministry will once again be conducting proactive inspections in schools," McSween said. Like last year, inspectors will meet all 72 school boards before school starts, he added.

We will continue to ensure schools are taking all appropriate steps to stop the spread of COVID-19."

In a statement, the Elementary Teachers' Federation of Ontario said the safety orders issued to date represented just a small fraction of the health and safety violations in schools that were reported," and described the data on work refusals as frustrating and demoralizing," for teachers and a concern for kids' safety, too.

Filing a work refusal is a last resort, said Bernstein: I would rather be in the classroom. I want to be in the classroom."

But the risk calculus this fall has changed, he said, particularly because nearly 400,000 kids between 12 and 17 are still not fully vaccinated and another 1.7 million are under 12 and still ineligible. Valuable precautions, like air quality testing in classrooms, could have been addressed from the day we were sent home," he added.

To Littlewood, the province's schools are not where they need to be for maximum safety. Raising concerns about that, she said, is for the greater good."

Everything that we're doing right now, I believe, is for the protection of the community in the province, too."

Sara Mojtehedzadeh is a Toronto-based reporter covering work and wealth for the Star. Follow her on Twitter: @saramojtehedz