Working people across Canada are facing an assault on their right to work safely and to receive fair pay, income recovery, and job security as a result of the COVID-19 pandemic.
Measures promulgated by almost all provincial governments to date to alleviate the impact of the outbreak on workers’ safety and incomes have been inadequate on numerous levels, often lacking the scope and sense of immediacy commensurate to the seriousness of the problem. What’s more, many agencies are already late in delivery and adding to the stress felt by working people by needlessly erecting excessive bureaucratic and administrative hurdles.
Workers ought to be made whole in every conceivable way to mitigate their losses stemming from the current economic crisis, one that has been aggravated by stalling on the part of public officials and institutions. Systemic delays, inadequate resources, unpreparedness, crippled medical resources and, in some cases, outright indifference to the fate of hundreds of thousands of working people has compelled many to work in close proximity without adequate protection.
Most, if not all, provincial health and safety laws bar an employer—subject to compensatory orders and aggravated damages—from imposing any penalty on a worker, including lost wages, for seeking to protect his or her health. This applies in cases such as being obliged to work in close proximity to others during the current pandemic crisis.
If exposure to the COVID-19 virus were to be defined as a “workplace hazard” under these safety legislations, the broad investigative and enforcement mechanisms of the provincial labour ministries would become engaged. Enforcement of such a ruling would include fast-tracking safety complaints, and placing a heavy statutory duty on the employer to take immediate remedial action.
Current labour law allows a worker to pursue and enforce their rights personally under health and safety acts, or through a union, including for full pay and re-employment without loss of pay.
Including COVID-19 exposure at the workplace within the scope of provincial workers’ compensation acts and other provincial legislation would have significant effects: workers would be provided higher income replacement benefits, and workers’ compensation boards would be obliged to intervene in the workplace, thus eliminating the need for workers to establish the occurrence of a accident to establish entitlement.
These measures would allow workers to attain fast, efficient remedies and protections under existing laws and procedures as a matter of legally enforceable rights to full indemnification for all losses without any deduction. They would also compel employers to take all reasonable steps to safeguard workers.
There is no reason why many workers—often mistakenly designated as dependent and independent contractors by employers who use these designations to limit their obligations to them under provincial employment standards acts—should be denied the rights other workers have.
Governments and unions can send a clear message to employers that workers’ rights to safety and fairness should be strengthened rather than eroded in these critical times. This can be done by mobilizing the resources of trade unions, the NDP, the Green Party and activist groups to demand emergency provincial legislation to pursue the following goals:
- Employees need the legal right to refuse to work if they feel vulnerable to the COVID-19 virus, and not to have to pay for it with their jobs today or their livelihoods tomorrow. The provisions of occupational health and safety relating to the right to refuse unsafe work, must be specifically declared applicable in situations of actual or potential COVID-19 exposure.
- If work environments cannot be made safe, operations must close down. Any risk of COVID-19 exposure at the workplace must be declared a “workplace hazard” as defined by safety acts—and employees must be entitled to hazard pay, protective gear, and mass testing. Workers’ lives are worth more than their bosses’ profits.
- Deal justly with worst-case scenarios. Employees who do get sick must have immediate rights to maintain their incomes at livable standards. We all need to buy groceries and pay rent. Call it sick days, income replacement subsidies, or grants in the public interest to limit the spread of the pandemic. It is a necessity for those unable to work.
- No games with loopholes and definitions. COVID-19 exposure at the workplace must be designated an occupational disease rather than an illness under the workers’ compensation acts and other legislation. Additionally, dependent contractors must be entitled to the same parallel protection set out above—as well as to earnings and the security of returning to their position after any period when they were unable to perform their jobs in the precarious economy.
- Workers, active and not. Protecting our communities also means giving stability to all workers blindsided by sudden job loss—whether they fall under paid leave, qualify for EI, or neither. Livable income supports must be brought in, and arbitrary rules and exclusions must be waived. This must also extend to migrant and undocumented workers. More strings attached or hurdles created will not protect them (nor keep our communities safe) from the dangers and risks of the COVID-19 crisis.
These measures, if adopted, would give unionized and non-unionized workers, presently healthy or otherwise, the fundamental right to choose whether they will work or have a reasonable, even if mistaken, fear of danger at the workplace and to choose to exercise the right to stay at home (“shelter in place”). Instead of being passive recipients of the largesse of their employers or government, such legislative changes would give workers the agency to make their own decisions and oblige ministers of labour and workers’ compensation boards to enforce them.
There is another issue that confronts workers in these perilous times: which jobs should be deemed essential? Ultimately, this is a political decision. Some provinces, such as Quebec, have shut down the construction industry and others, like Ontario, have given it a green light. Labour advocates, as well as all who believe in democracy, should insist the decision should be subject to public debate and then voted on in the various provincial legislatures.
There are differences within the left as to whether basic manufacturing and energy resource industries can be operated safely without spreading the virus. It is generally agreed that it is illusory, even cynical, to enforce physical distancing in any plant where people work on production lines. In the logic of capitalism, however, anything that impedes profitability constitutes a danger to what employers consider to be essential. A wave of spontaneous strikes in Italy shut down production lines in various industries. In France, workers walked out of a commercial call center that was bizarrely declared essential. Of course, many if not most workers must use public transport where physical distancing is an impossibility, especially at peak travel times.
The labour movement and its political allies should fight for the cessation of all unnecessary production and transport to ensure that the maximum health and safety conditions are respected in essential workplaces, and that workers’ incomes and contracts be fully maintained in the event of total or partial unemployment. As of this writing, lost work has already hit half of Canadian households.
Workers everywhere should be given accurate information regarding the safety of their workplaces and all protective measures, including gloves, masks and access to mass testing. Provincial safety legislation protects workers from being penalized for good-faith work refusals because of workplace hazards. This means that they are entitled by law to full pay while the danger is present or perceived to be present. This principle of full income replacement should inform all public schemes to compensate workers for lost income. Workers at Amazon’s Chicago warehouse have shown this battle for paid time off can be won.
According to Bob Barnetson, a labour relations professor at Athabasca University, workers who have a legitimate fear that their work is dangerous to themselves, or to others, always have the right to refuse unsafe work. Particularly hard hit by the coronavirus pandemic over the last several weeks have been workers in the service, entertainment and recreational industries, although unsafe work may be a risk people are willing to take. Yet, public health officials have been out almost every day warning that strict self-isolation and spatial distancing measures must be adhered to, and they have put in place stringent guidelines for employers across the country. Their rationale is that failure to do so will spread the virus more quickly and result in severe damage to society.
In March, unsafe work refusals have more than doubled in Ontario as the pandemic has spread. Reports of businesses deciding to stay open, some bucking advice from public health officials, have been surfacing since the beginning of the outbreak.
What exactly counts as ‘unsafe’, however, is not always clear. How much risk exactly is involved and what specific measures one should take to mitigate it are still somewhat up for debate.
Imagine the stress of going to work knowing the conditions could expose you and ultimately your family to the virus, and yet feeling like you have no other choice because you cannot afford to walk away. Likewise, how distressing it would be if workers felt compelled to ignore their symptoms and apply for work at delivery companies like Amazon or Walmart, both of which are hiring 10,000 new employees because their incomes from previous jobs have disappeared.
There are also numerous reports of unsanitary, crowded conditions at construction sites with overflowing outhouses and no access to hand sanitizers. The Laborers International Union of North America (LUNA) has documented widespread abuse of protocols. We need government to step in so people can put their health over their wages—something that requires a sea change only a mass alliance of labour and its allies can achieve.
Job security is also key. In Canada alone, job losses could exceed three million. Thousands of workers are being laid off temporarily and are not told that such layoffs are illegal unless set out in employment or collective bargaining agreements. Many workers such as cleaners are mischaracterized as independent contractors and receive no job security, sick pay or any other statutory benefits. The measly $2 hourly wage increase that companies like Loblaw and Cargill have given their workforces shows how little corporate Canada values the lives of those from whose labour they extract their obscene profits in the middle of a global health emergency. Though politicians declared a war on COVID-19, it seems that they are not prepared to legislate meaningful battle pay for their foot soldiers.
Naomi Klein has shown in The Shock Doctrine how capitalist elites exploit natural disasters and economic crises to force workers and the vulnerable to pay while they further their own profits and class interests. Workers, who already live precarious lives under neoliberalism, are slow to respond. Let us recall that it took four years for sit-in strikes to shatter the demoralization caused by the Great Depression in the United States. But resistance to make workers pay for the current crisis is already on the horizon.
The tools to fight back are there. Together, a resilient union movement, political parties (especially the NDP, which bills itself as a worker-oriented party) that abandon seeking handouts and accept the challenge to think big, and activists who see the current social devastation as an episode in a historic class struggle, can empower workers to achieve system change and truly make a difference.
Harry Kopyto is a retired legal advocate who lives in Toronto. He is a member of Courage and New Democrats for Leap. The Ontario branch of Courage is campaigning to have the ONDP promote the labour reforms outlined above in the Legislature. Harry can be reached at [email protected].