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I am a Loss Prevention worker for a supply chain in Ontario. We have recently been tasked to take on what is called wellness checks for every person that enters the facility. They are requiring us to fill out. A questionnaire and take physical temperatures of every person that would require me to break the 2 metre social distancing rule and hold a device approximately .5” to 1” from their forehead. They have said they will provide a face shield and non-medical mask and gloves to use for this process. I don’t really deal comfortable being that close in proximity to someone that may be sick and risk spreading that to my family that is at home. What can I legally do or refuse. This new task is suppose to be effective for my next shift back to work on April 30, 2020.

The requirement to take temperatures is a new and unusual requirement in most workplaces up until now. In the circumstances of a state of declared emergency and pandemic, it is difficult for us to predict precisely how rights and requirements designed for less unusual times will apply in this unprecedented health crisis situation.

First and foremost, we would advise working cooperatively with your employer rather than taking any other steps. We suggest speaking with your employer, or writing to them if you prefer, in order to express your concerns rationally and respectfully, and consider their reasoning and any potential solutions they might offer in order to make you feel safer in performing this duty. The best result would of course be reaching an agreement about ways in which the process could be made safer/that might address your concerns. Perhaps the individual takes his or her own temperature using a thermometer sterilized after each use, and your role is more so the collection and evaluation of the data, for which you would not have to be as close to the other employees. It may also make sense to seek agreement from your employer that you ought not to be taking the temperature of anyone who is clearly symptomatic, i.e., coughing or wheezing or flushed with fever or sweating, etc. A solution like that may address some of your concerns if it is workable.

If you and your employer are unable to come to a solution wherein you feel safe performing this function, you may have the right of refusal pursuant to the Occupational Health and Safety Act ("OHSA"). Based on what you have written, you may fall within a category of employee that has the right to refuse unsafe work under OHSA. While this is not entirely clear – for example, “a supply chain” in Ontario could include a federally-regulated business to which different laws apply - our response is based on the assumption that your employer is your employment is subject to the OHSA.

If you cannot reach an agreement and feel that a refusal is necessary, you may find the following information useful:

• An employee has the right to refuse to work or do particular work if he or she has reason to believe that its performance is likely to endanger him- or herself or another employee or if the work contravenes the OHSA and such contravention is likely to endanger him- or herself or another employee. This right is usually intended to be exercised when a piece of equipment, machine, device or other “thing” you’re using or operating is the source of the danger or the source of the danger is the physical condition of all or part of the workplace itself.

• In this instance, it is not the thermometer or whatever device is being used that is the source of the danger, and we presume that the physical condition of the workplace itself is otherwise safe, so you will have to demonstrate that your right to refuse comes as a result of how you’re being required to use the thermometer, i.e., the lack of physical distancing, which gives rise to a possible danger, i.e., the risk of contracting COVID-19.

• When legitimately exercising the right to refuse unsafe work, you are protected against suffering a “reprisal” from your employer, i.e., you are protected against being disciplined or termination, for example, because of insubordination.

Your work refusal will prompt the employer to investigate your concerns. Should they find that the workplace is safe, and you continue to refuse, they are required to contact the Ministry of Labour ("MOL") who will conduct its own assessment.

We note that based on decisions made during the SARS outbreak in 2013 and the early COVID-19 it appears that in the context of an emergency, such as this one, the MOL inspectors tend to side with the employer, not the employee. While we learn more about the COVID virus and the importance of physical distancing, as well as indicators of infection, this may not be the case, but in our view has been the trend thus far. It may well be that in these unusual times, as long as the employer is providing you with much the same PPE that might be provided to a healthcare worker (which based on your question, it appears they have) a work refusal on these grounds may not be upheld.

In conclusion, it appears possible that the measures being taken by your employer, if they include a face shield, mask and gloves, may be seen as reasonable by an independent decision-maker from the MOL if you refuse and the refusal gets that far. We therefore recommend that you approach this issue in a conciliatory, not combative, manner, to explain your concerns and to listen to your employer’s justifications, and that you try first to work together to come to a solution where you feel safe performing the tasks you are asked and the employer is able to take the steps it deems necessary to ensure the safety of the workplace and all employees.
The Lawyers at Samfiru Tumarkin LLP
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