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Is an employer responsible if an employee contracts COVID-19?

Thursday, October 15, 2020 @ 3:01 PM | By Ashu Ismail


Ashu Ismail %>
Ashu Ismail
The second wave of COVID-19 infections threatens to undermine the significant progress we have made in establishing a balance that takes account of the need to jump-start the economy and the legitimate safety concerns of workers returning to their jobs. The government and regulatory bodies in Ontario and Canada have established protocols and standards aimed at reducing the risk of spreading the virus. 

It is up to each employer to ensure that appropriate measures are implemented and maintained. There are no systems in place to ensure compliance, but the Ministry has taken measures to increase inspections and has added 60 officials to support employers and employees in the field.

Employees are justifiably concerned that adequate measures are put in place at their workplace, and that their health and safety, and that of their families, are being protected. Often, these employees simply must trust that their employers are holding up their end of the bargain. Employees have the right to file a complaint with the Ministry of Labour, but often the fear of retribution becomes an issue.

In Ontario, there is a general legal duty of care on employers to provide a safe workplace for workers and third parties. This general duty applies to the current COVID-19 crisis. If the duty is not met (for example, an employer refuses to ensure that physical distancing is maintained), an employee might be able to start a lawsuit seeking damages.

However, in practice, many injured workers cannot exercise this right. The Workplace Safety and Insurance Act (WSIA), which governs Workplace Safety and Insurance Board (WSIB) claims, establishes a “no-fault” system that provides benefits to eligible employees who have suffered a workplace injury in exchange for removing the employee’s right to sue. 

Below are six steps an employee who has contracted COVID-19 can take when considering whether to start a lawsuit against their employer.

Step 1: Determine whether employment is included under the WSIA

The general regulation under the WSIA provides two schedules of industries in Ontario that are covered by the WSIA. Schedule 1 is divided into classes spanning most types of industry (including manufacturing, retail and service jobs). Schedule 2 lists industries for which the employer is individually liable to pay benefits under the plan, including certain types of construction, international airlines and employment with the Crown in right of Ontario.

There are noteworthy exclusions including: banks, insurance companies, trade unions, travel agencies, hair salons, private health care providers and private daycares. Employees working within excluded industries can sue their employers directly. Additionally, employers who should carry WSIB coverage but choose not to do so can be sued. 

Note: An employee can review the schedules and exclusions (Ontario Regulation 175/98 – General); they can ask their employer directly or contact the WSIB.

Step 2: Determine whether the virus was contracted in the course of employment

If the employee’s industry is covered under one of the schedules, they might be eligible for WSIB. Under s. 13(1) of the WSIA: “A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.”

A worker who develops COVID-19 “in the course of his or her employment” will need to determine whether the WSIA applies, and if so, whether it is mandatory or not. This determination will establish the options the worker has going forward.

Whether the virus was contracted in the course of employment is determined on a case-by-case analysis of the facts. Generally, it means that the exposure likely occurred:

  • On the premises of the workplace or where the worker might reasonably have been expected to be while involved in work-related activities;
  • During work hours or a reasonable period prior to or after work hours; and
  • While the worker was completing work-related duties.

Step 3: Determine which schedule applies to the employer’s industry

If an employee feels that they contracted the virus in the course of their employment, their options will be governed by which schedule applies. Under s. 28 of the WSIA, the no-fault WSIB regime is mandatory for Schedule 2 employees. They are not permitted to sue their Schedule 2 employer or its employees. 

For Schedule 1 employees, it will be mandatory if the work-related accident injury occurred while both parties were in the course of employment. If an employee is under Schedule 1, they might have the option of suing their employer rather than taking WSIB. 

Step 4: Determine whether both parties were operating in the course of their employment

If the employee falls under Schedule 1, they must determine whether the responsible parties were also operating in the course of their employment. As described in step 2, “in the course of employment” is determined on an analysis of the facts. For example:

Mandatory

An infected worker and a healthy worker are both working their regular shifts, and the healthy worker contracts the virus.

Not mandatory

An infected employee visits the site while under quarantine and not scheduled to work, and a healthy worker contracts the virus while working his or her regular shift.

Step 5: Assess options

When workers find themselves in situations in which WSIB is not mandatory, they can still opt for coverage under WSIB. In many cases, this will be the most convenient and useful option. WSIB provides quick access to benefits, including income supplementation and medical and rehabilitative treatment.  

These employees are also entitled to commence a lawsuit against the responsible parties. In that case, an Election Form should be completed and submitted to the WSIB within three months after the work-related accident occurs, opting out of coverage. This step must be completed, otherwise the lawsuit might fail at the outset. 

Step 6: To sue or not to sue?

The primary reason to opt out is that a lawsuit might provide better compensation. In a complex case like COVID-19 infection, which might lead to extended hospitalization and recuperation time, permanent partial or full disability, and the spread of the virus to other family members and associates, the WSIB regime is unlikely to provide adequate compensation. 

As mentioned above, employees who work in excluded industries or who work for a schedule employer that does not provide WSIB coverage are always at liberty to sue.

Again, there is a general duty on employers to provide a safe workplace. This will include taking appropriate measures to contain the spread of COVID-19 and protecting workers from contracting it.

To succeed in a lawsuit, an employee will have to show that the employer failed to meet the standard expected in implementing and maintaining these measures, that it was reasonably foreseeable that the employee could be exposed as a result, that the employee did in fact contract the virus as a result of the employer’s failure, and that the employee suffered damages as a result.

Ashu Ismail, of Campisi LLP, solely acts on behalf of the injured and the wronged. She has successfully appeared before the Divisional Court (appeals), the Superior Court of Justice and the Financial Services Commission of Ontario.

Photo credit / koksikoks ISTOCKPHOTO.COM

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