Coronavirus Employer Liabilities and paying emmployees during pandemics

[vickyp]

#80629

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.
For example)

1. 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?
2. If a customer gets sick with the virus supposedly from exposure/contact to an employee or other customer, can the employer be held liable?
3. 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?
4. 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?

[vickyp]

#80628

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

[Anonymous]

#80655

Sheryl: Just found this analysis which relates to the Q you asked me a few weeks ago. Glenn
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When it comes to suspicions of misconduct, we often recommend that the employee be removed from the workplace during the investigation. We would typically advise characterizing this as an administrative leave rather than a suspension, since a suspension, particularly without pay, can be perceived as disciplinary in nature. That is generally frowned upon since it presumes guilt.
The purpose of the investigation is to determine whether or not the employee engaged in misconduct, so disciplining them first is inconsistent with any notion of procedural fairness and can expose the employer to liability.
Ontario court looks at constructive dismissal
This issue arose in Hookimawillile v. Payukotayno James and Hudson Bay Family Services. Ultimately, the Ontario Superior Court of Justice held that the employee in question had been constructively dismissed when she was suspended without pay.
Cheryl Hookimawillile worked for Payukotayno James and Hudson Bay Family Services as a services supervisor, a managerial position. On April 26, 2017, she was suspended without pay pending the outcome of an investigation into a child’s death.
On May 12, 2017, Hookimawillile’s lawyer wrote to Payukotayno alleging that her suspension without pay was a constructive dismissal. Two weeks later, Hookimawillile received a termination letter dated May 17, 2017. The letter stated that she had been on an administrative suspension and was being terminated for cause. It also stated that Payukotayno was relying on Hookimawillile’s past job performance and conduct as grounds for termination.
As a result, Hookimawillile brought an action against Payukotayno for wrongful dismissal, claiming that she had been wrongfully (constructively) dismissed and was entitled to the entire unexpired term of the employment contract. Notably, management employees were employed pursuant to a series of short-term contracts. Hookimawillile‘s most recent contract began on April 1, 2016, and was to be terminated on March 31, 2018.
Supreme Court of Canada test
In deciding whether Hookimawillile was constructively dismissed, the judge relied on the test set out in Potter v. New Brunswick Legal Aid Services Commission. In that case, the Supreme Court of Canada held that an employee has been constructively dismissed “when the conduct of an employer evinces an intention no longer to be bound by the employment contract.”
There are two branches of the test that have emerged to determine whether the employer’s conduct evinces an intention not to be bound by the contract. The first branch requires the court to identify whether an express or implied term of the contract has been breached, and then determine whether the breach was “sufficiently serious” to constitute constructive dismissal.
Under the second branch, an employer’s conduct will “constitute constructive dismissal if the employer’s conduct when viewed in light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract.”
The judge found that Hookimawillile’s suspension without pay was unauthorized and in breach of the employment contract, which did not contain any provisions for administrative suspensions. The judge further found that the indefinite suspension without pay was a fundamental and substantial change to Hookimawillile’s employment contract.
It prevented her from fulfilling her responsibilities, as well as depriving her of an income, two elements that are the very core of an employment contract. The judge held that a reasonable person in the same position as Hookimawillile would have also concluded that their employment had been terminated.
Although Payukotayno attempted to assert that it had just cause for dismissal and dismissed Hookimawillile for cause on or about May 17, 2017, the judge held that Payukotayno could not retrospectively dismiss Hookimawillile for cause. Payukotayno may have been justified in dismissing Hookimawillile for cause if the misconduct was discovered after the constructive dismissal. However, Payukotayno was aware of the issues with Hookimawillile’s job performance prior to April 26, 2017. That cannot constitute after-acquired cause.
As this was a fundamental breach of the employment contract, the judge held that Payukotayno could not rely upon the termination clause of the employment contract it repudiated. Hookimawillile was, therefore, awarded damages in the amount of $108,973.15, representing the full value of the time remaining on her contract.

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