Your employer insists that you come back to the workplace, and then you test positive for COVID-19. Can you sue the company?
What assurances do employers have that they won’t be sued by an employee that becomes infected with the COVID-19 virus at work?
Late last month, the Ontario government introduced legislation that should be welcome news to many, as it limits the circumstances in which people can sue where the employer acted reasonably and in good faith.
Scope of Protections
On November 20, 2020, the Government of Ontario passed Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020. The Bill provides liability protection for any person who makes a “good faith effort” to follow public health guidance and laws relating to COVID-19. The Bill defines a person as “any individual, corporation or other entity, and includes the Crown in right of Ontario.”
The Bill ensures that a claim cannot be brought against a person “as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus… as a direct or indirect result of an act or omission of the person…”
To benefit from the protections of the Bill, it must be shown 1) that the person “acted or made a good faith effort” to follow public guidance, as well as any federal, provincial or municipal laws relating to COVID-19; and 2) that the act or omission does not amount to gross negligence.
The Bill also provides retrospective protection to March 17, 2020, that is, the day Ontario first declared a state of emergency. Therefore, any proceeding commenced after that date, but before the Bill came into force, will be deemed to have been dismissed without costs.
It is worth noting that the Act does not apply to:
- acts or omissions that occurred while a law required the individual or business’ operation to be closed, in whole or in part or
- workers or their survivors who wish to file a workers’ compensation claim under the Workplace Safety and Insurance Act.
A good faith effort is defined by the Bill as including “an honest effort, whether or not that effort is reasonable.”
The Bill does not define gross negligence which normally requires a higher level of misconduct than ordinary negligence. However, what constitutes gross negligence will likely be a fact-specific determination and it remains to be seen what factors the courts will deem as important considerations.
Public health guidance is defined as “advice, recommendations, directives, guidance or instructions given or made in respect of public health, regardless of the form or manner of their communication, by any of the following”:
- The Chief Medical Officer of Health or an Associate Chief Medical Officer of Health.
- A person appointed as a medical officer of health or associate medical officer of health of a board of health, or an employee of a board of health.
iii. A public health official of the Government of Canada.
- A minister or ministry of the Government of Ontario or Canada, or an officer or employee in such a ministry.
- An agency of the Government of Ontario or Canada or an officer or employee in such an agency.
- A municipality or an officer or employee of a municipality.
vii. A regulatory body having jurisdiction over a person, or an officer or employee of such a regulatory body.
In order to qualify for the protections under Bill 218, it is imperative that individuals and businesses stay up-to-date with the evolving recommendations of public health officials as well as any laws and by-laws relating to COVID-19.
Our team is here to help, whether you are an employer or an employee with questions relating to Bill 218 or any other issues related to COVID-19. You can also stay up-to-date by following our COVID-19 and the Workplace blog.