Can Employees Be Liable For Bringing COVID-19
Employees may be liable for bringing COVID-19 into the workplace in specific situations. On November 20, 2020, Ontario enacted Supporting Ontario’s Recovery Act, 2020 (the “Act”). The Act provides protection for individuals and businesses who make an honest effort to comply with public health guidelines and laws aimed at preventing the spread of COVID-19. Below, we will discuss the Act as it applies to employees.
Who Can Be Sued For Bringing COVID-19 Into the Workplace?
Section 2(1) of the Act guarantees that individuals and businesses who directly or indirectly expose or potentially expose a person to COVID-19 cannot be sued if:
- The individual or business acted in accordance with, or made a good faith effort to act in accordance with, any and all applicable laws or public health guidance relating to COVID-19; and
- The individual or business’s act or omission does not constitute gross negligence.
This provision applies in spite of any conflict or inconsistency in the applicable laws or public health guidance. If the application of the Act conflicts in any way with the Workplace Safety and Insurance Act, 1997, then the Workplace Safety and Insurance Act, 1997 will prevail. The Act also applies to anyone who is vicariously liable for the acts or omissions of another person, if that person would not be found liable themselves.
The Act defines ‘good faith effort’ as “an honest effort, whether or not that effort is reasonable.” However, the Act does not define ‘gross negligence.
Section 2(1) of the Act does not apply to any employee who agrees to work for their employer when their employer was required by law to be shut down. In other words, if an employer’s business should be closed due to a lockdown, but the employer refuses to close and the employee agrees to work, they lose their right to legal protection under the Act, and can be liable for bringing COVID-19 into the workplace.
Retroactive Application
Although the Act came into force on November 20, 2020, it applies retroactively to any cause of action relating to the infection of, or exposure to, COVID-19 on or after March 17, 2020. If an employee sued or held liable for bringing COVID-19 into the workplace prior to the passage of the Act in relation to their actual or potential exposure of another person to COVID-19, whether directly or indirectly, and the employee qualifies for protection under the Act, then the lawsuit must be dismissed without costs.
Limits to Protection
The Act does not protect employees who willfully, or with gross negligence, arrive bringing COVID-19 into the workplace exposing other individuals. To date, there has been no case law decided under the Act. However, the following scenarios may leave employees open to liability:
- Attending the workplace while actively infected with COVID-19
- Refusing to wear a mask in the workplace or get tested when exhibiting COVID-19 symptoms
- Refusing to comply with social distancing guidelines
- Agreeing to work for your employer when your employer’s business should be closed due to a lockdown
- Inciting others to participate in willful or grossly negligent behaviour that could lead to the spread of COVID-19
It is important for employees to understand how they can be held legally liable for the spread of COVID-19 in the workplace. In order to avoid potential liability, employees should endeavour to comply with the applicable laws and public health guidance.
Contact Us
Whether you are an employer or an employee looking for assistance with wrongful termination, human rights violations, workplace issues or employment relationships, our skilled, knowledgeable, and experienced wrongful dismissal lawyers can advocate on behalf of businesses and employees at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.
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