Focus On

Why COVID-19 is occupational hazard in its own right

Monday, September 28, 2020 @ 11:07 AM | By Oksana Romanov

Oksana Romanov %>
Oksana Romanov
During uncertain times, people gravitate even more to receiving succinct and helpful information. There is a plethora of information and misinformation about COVID-19 and its place in the hierarchy of occupational hazards in the workplace. To avoid being misled, go right to the primary sources — the acts or statutes — and trusted secondary sources — interpretation guidelines by the regulatory bodies.

In addition to receiving information and its delivery channels, we need to keep the focus on relationships in the workplace. Relational aspects, rights and responsibilities of the parties in the workplace, as determined by the definitions of the professions and relevant employment law, are important as well. For example, how do employers and employees understand and communicate inherent and emerging occupational hazards to each other? Are there any other parties involved in this dynamic relationship and communication during the pandemic? For these answers to these and other questions let’s turn to the situation in Ontario.

Below are my three reasons why COVID-19 is an occupational hazard in its own right and my quick analysis of the relationship between the people and the law and among the people in the workplace in my home province.

Reason number one

According to the Occupational Health and Safety Act (OHSA, 1990), there are certain requirements for all workplaces. Specifically, the Ontario workplace prevention website cites the following:

  • “ensuring workers know about hazards by providing information, instruction and supervision on how to work safely
  • ensuring supervisors know what is required to protect workers’ health and safety on the job
  • creating workplace health and safety policies and procedures
  • ensuring workplace parties follow the law and the workplace health and safety policies and procedures
  • ensuring workers wear the right protective equipment and are trained on how to use it
  • taking all precautions reasonable in the circumstances to protect workers from being hurt or getting a work-related illness.”

It is the duty of the employer is “to keep workers and workplaces safe and free of hazards.” This duty is described in s.  25(2)(h) of the Act.

According to the provincial Ministry of Labour website, the regulator increased workplace safety inspections in Ontario due to COVID-19, “including adding close to 60 new frontline officials to support employers and workers in the field.” Further, the regulator provided its interpretation of how COVID-19 affects the workplace. The employer also must “inform, instruct and supervise.”

In addition to the requirement to follow the standard procedures for cleaning and disinfection, there are implicit and explicit indications that the employer could provide additional instructions for cleaning high-touch services, tools and high traffic areas.

Reason number two

There are emerging signs of the disease as an occupational hazard everywhere: transit, offices, stores, restaurants and offices. The provincial regulator states the following: “[w]here possible, workers should work from home.” However, there is a critical distinction in the Act between a risk and a hazard. Ministry of Labour, Training and Skills Development (MOL) explains that “[t]he hazard posed by some material or situation is its potential to cause harm.” Whereas, “[r]isk is the probability, or chance, that it actually will harm someone.” As a result, some emerging signs should be treated as a risk, while others should be treated as a hazard.

Ask yourself a series of questions: Is COVID-19 a normal condition of your employment? And, are you in harm’s way despite all reasonable precautions taken by you and your employer?

There are risky and dangerous workplaces by definition, where getting in harm’s way is a daily reality. Regardless of the precautions the employer and the employees take at work, the job itself inherently consists of addressing or being in dangerous or hazardous situations, including COVID-19 (e.g., certain health-care workers, first responders and correctional facilities workers).

Ask yourself a question of whether the right to refuse or to stop work applies to these occupations. Does COVID-19 pose an additional health and safety danger?

Reason number three

Since March 6, 2020, novel coronavirus is on the list of occupational health hazards and Illnesses along with other biological agents such as viruses and bacteria, including C. difficile, anthrax, Ebola virus disease, MERS-CoV, flu, mould, dust and Legionella (the MOL’s website).

Furthermore, initially designed to last until Sept. 4, 2020, the infectious disease emergency leave has been extended until Jan. 2, 2021, to protect both the employer and employees from financial losses associated with the adverse impact of COVID-19.

To conclude, COVID-19 is here to stay. It is on the list of occupational health hazards and illnesses in Ontario. The virus could be found indoors and outside, wherever people are who might potentially carry the disease. It is up to us to stay informed and protected. If in doubt, seek qualified legal advice.

Oksana Romanov is a member of the in augural class of Ryerson University, Faculty of Law. She is passionate about fostering inclusive communities, effecting social change and advocating for human rights of persons with disabilities in order to remove attitudinal and environmental barriers to their full participation is society.To learn more about the author, you can visit her LinkedIn profile.

Photo credit / Nuthawut Somsuk ISTOCKPHOTO.COM

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