As a construction worker in Toronto, James has been deemed an essential employee by the Ontario government during the COVID-19 pandemic. And although he wasn’t bothered at first by the designation - which means he still receives his bi-weekly paycheque - that feeling has turned to nervousness and frustration as the virus becomes more widely spread.

James – who did not want his last name used out of respect for his employer - is currently working on a home renovation project he was hired for before the lockdown was instituted, but he has become less convinced he should be considered “essential” because the family wouldn’t be homeless if construction on the home stopped. Not to mention, his girlfriend who he lives with is immunocompromised because she suffers from asthma.

“I only have two other co-workers but they have a similar feeling,” he said in a phone interview with BNN Bloomberg. “It seems like it’s putting us both at risk – because there’s the family there as well as us.”

The biggest question essential workers need to ask themselves, according to Levitt LLP employment lawyer Sunira Chaudhri, is whether they can refuse work on safety grounds since many collective agreements and all Canadian jurisdictions have provisions and laws requiring employers to provide a healthy and safe workplace.

“This would include, in my view, refusing work because of a hazard related to COVID-19 if the worker believes there’s a real risk. But they would be required to communicate that risk to their manager or employer and they should facilitate a discussion of the seriousness of that perceived danger and whether or not coming to work justifies the risk,” she said. “There’s a lot of anxiety around [the pandemic] but fear alone is not going to be justifiable to refuse work so some of that might depend on measures taken by the employer to protect or eliminate the risk in the workplace.”

Employers are also urged to facilitate working from home when possible.

For essential workers who do contract COVID-19, she says there’s not much recourse available from their employers because it’s nearly impossible to establish whether or not they got sick on the job.

Rather, an employee’s position would remain open until they are well enough to return. Whether an employee gets paid while off work is another issue, and would depend on if the company can foot the bill or if the employee has sick days; otherwise, employment insurance sick benefits would be the route for employees to pursue.

Chaudhri also advises essential workers who are afraid to go to work not quit their jobs, but instead request to be laid off so they can still access EI.

The nature of COVID-19 has made the issue of employee privacy particularly tricky to navigate.

“Generally, employers don’t have the right to know the nature of the sickness or the diagnosis. That’s gospel in employment law,” she said. “The way this has shifted with COVID-19 is that with this national effort to flatten the curve, employers are requiring employees to self-disclose. It puts employers in a weird position because employers don’t know if they’re allowed to ask but they also need to think about the health and safety for all of their employees.”

So far, construction worker James feels his boss is taking reasonable measures to mitigate virus-related risks in the workplace, such as letting him borrow a company van so he doesn’t have to take public transit, and advising the homeowners to avoid the work site as much as possible.

“[My boss] said from the beginning if we don’t want to work, he’ll do whatever he can to make that happen and make sure we’re not tight for money. So it hasn’t been horrible for us but I’ve had a few friends that have threatened to quit or considered it.”