What are some of the employer liabilities we need to be mindful of as we work on creating pandemic preparedness policies? In all cases, let’s assume the employer took all the common workplace prevention precautions recommended by health agencies at the time.
- If an employee says they got sick with the virus from suspected exposure/contact at work with other employees, can the employer be held liable? By which authority? Should the employer send a Form 7 report of injury/illness to WSIB?
- If a customer gets sick with the virus supposedly from exposure/contact to an employee or other customer, can the employer be held liable?
- If an employee gets sick with the virus supposedly from exposure/contact to members of the public, could the employer be held liable because the workplace (a non-essential service and co-working space) remained open to customers instead of shutting down? This is assuming the health agencies have not asked issued an advisory for workplaces to shut down. Would we report it to WSIB?
- Finally, if the workplace has to shut down for several ongoing weeks due to a public health agency recommendation or workplace outbreak and there is no work to do because of the shut down. Is there a rule of thumb for how long the employer would need to continue paying employees? Some would be sick and may apply or qualify for STD or LTD with the benefits carrier but several other employees might not be sick. We are thinking of paying for about 2-4 weeks to give people time to get ready and then putting everyone on unpaid leave and asking them to apply for EI through Service Canada. Do you see any issues with this approach?
First, check out this HRI piece about the general employer liability risks of coronavirus. https://hrinsider.ca/compliance-briefing-the-4-kinds-of-coronavirus-control-measures-required-by-law/
1. Probably not because of workers’ comp ban on injured/ill workers’ suing employers for negligence. Yes, Form 7 required if worker contracts CV at work and:
- is absent from regular work and/or
- earns less than regular pay for regular work (e.g., part-time hours) and/or
- requires modified work at less than regular pay and/or
- requires modified work at regular pay for more than seven calendar days following the date of accident
2. Yes. Workers’ comp bar on negligence lawsuits doesn’t apply to third parties, including customers, visitors, etc.
3. No because of workers’ comp bar on negligence suits by workers against employers. But you would still face potential liability under OHS, public health and other laws–just not a negligence lawsuit by a worker for money damages in civil court
4. This Q is the hardest one. Clearly, you not only can but must shut down if you’re ordered to do so. The approach you outline sounds reasonable but the rules are highly fact-specific and I can’t really assess whether your solution works without knowing much more about the situation, including whether there are any applicable collective agreements, your HR policies, the number of employees affected, etc.
Hope this helps and feel free to follow up. Glenn