Employer Liability: Going Back to Work after COVID-19

By Troy Harwood-Jones and Allison Fehr

May 2020

A Google search could well cause employers to be worried about being sued. Here are just a few US headlines:

“U.S. nursing home where dozens died hit with wrongful death lawsuit”
“Royal Caribbean sued over coronavirus-related death of crew member”
“Walmart sued by family of worker who died of COVID-19 complications”

Even in Canada, the lawsuits are starting to emerge. In April, 2020, a $50M class-action lawsuit was launched against nursing homes in Ontario.

So, what is the law? What are an employer’s duties to their employees regarding safety and working conditions? Can an employer be found liable if an employee contracts coronavirus at work? As provinces begin to loosen restrictions, employees return to work, what do employers need to know?

The answer is that employers have legal obligations to their employees by legislation and by Common Law. The bottom line is that employers must take reasonable steps (and be able to demonstrate that they have taken such steps), to meet all regulatory, governmental, and legal requirements, and to protect their workers from risks to their safety, health and welfare arising out of Covid-19 and their return to work.

First, an employer must determine whether they can legally reopen their physical workplaces, based on current government orders and restrictions.

Once employers can legally reopen their business, they need to ensure that their workplaces can be opened safely. Employers must conduct a hazard assessment for COVID-19 transmission in the workplace, and implement controls to address the hazard of COVID-19. As employers invite, or require, employees to physically return to the workplace, they must address identified hazards relating to COVID-19, and implement:

1. engineering controls (i.e., physical distancing and physical barriers);
2. administrative controls (i.e., adjusting policies and procedures to reduce risk); and
3. the use of personal protective equipment (PPE), if necessary.

Consequences for failing to ensure a safe workplace can be significant. If a Workplace Health and Safety officer is of the opinion that workplace activities involve or are likely to involve an “imminent risk of serious physical or health injury”, then the employer can be subject to a stop-work order, or be fined up to $500,000, plus $50,000 for each day during which the offence continues. Furthermore, under The Workplace Health and Safety Act workers have the right to refuse work that they reasonably believe constitutes a danger to their safety or health (or the safety or health of another worker or person). If an employee makes a formal work refusal, employers cannot require the employee work, and cannot take, or threaten to take, disciplinary action against the employee.

While unlikely, employers could potentially find themselves sued for negligence. The Workers Compensation Act generally provides employers immunity from civil suits, and employees involved in an accident in the course of employment can only bring a claim the Workers Compensation Board. However, it currently unclear if the Workers Compensation Board would consider that contracting Covid-19 is a workplace “accident” as defined by this legislation. Under this Act, an ordinary disease of life, such as a cold or flu, is not an accident. If the Workers Compensation Board concluded that getting COVID-19 is like getting influenza, then employers would lose their immunity and could be sued for negligence.

Human rights legislation can also be triggered. An employer cannot discriminate between employees (for example, by unfairly choosing to subject certain employees to risk of harm, while protecting others). In addition, if an employer knows, or should know, that an employee is at particular risk, then they the employer can acquire a duty to accommodate a vulnerable employee.

Privacy rights must also be respected. Employees have a right to privacy with respect to their personal and medical information. Because employers are not legally required to report if an employee contracts Covid-19, employers must be careful when collecting or disclosing any personal health information. Reporting must either be done anonymously, or better yet, with the employee’s consent.

Finally, employers have broad common law duty to take reasonable care for their workers’ safety. As far as is reasonably practicable, employers must ensure the safety, health, and welfare of all their employees while at work and in the course of their duties. Employers have a duty to provide and maintain necessary equipment, systems, and tools that are safe and to provide workers with information on workplace hazards and risks. This would include providing information about COVID-19, including the risks, symptoms, and tips to avoid contracting and spreading it. To demonstrate that they are responsive to their duty to provide a safe workplace, employers should update and implement new health and safety policies and practices in their workplaces to specifically address what they have done to minimize the risks associated with the COVID-19 pandemic.

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Troy Harwood-Jones is a commercial lawyer and corporate litigator at PKF Lawyers, in Winnipeg, Manitoba. Troy has significant experience and expertise in practice area relating to civil litigation, employment law, business law, and intellectual property. Allison Fehr is an articling student with PKF Lawyers.