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On Friday, November 20, 2020, the Ontario government enacted the Supporting Ontario’s Recovery Act, 2020 (the “Act”). As discussed by my colleague Anna Stoll in COVID-19 and limiting liability, the Act retroactively limits civil liability for the transmission and/or contraction of COVID-19 if the organization has acted in an honest, good faith manner in following public health guidelines and applicable laws regarding COVID-19, as long as no act or omission by the organization constitutes gross negligence.

The question on many employers’ minds is: does this mean that if an employee contracts COVID-19 while at work they are prevented from suing me?

The simple answer is no. The Act carves out an exception where an employee, dependant or independent contractor (a “worker”) is exposed to, potentially exposed to, or becomes infected with COVID-19 during the course of their work. 

Where does this leave employers? 

For employers covered by the Workplace Safety and Insurance Act (the “WSIA”), a worker may be entitled to WSIB benefits if they contract COVID-19 in the course of their employment. As set out in the WSIB’s Adjudicative approach document, in assessing a claim the WSIB will focus on whether the worker’s employment duties and responsibilities were a significant contributing factor in the worker contracting COVID-19. Such claims are adjudicated on a case-by-case basis. 

For employers not covered by the WSIA, a worker who contracts COVID-19 can sue in negligence, arguing that but for the employer’s negligence the employee would not have contracted COVID-19. Whether the employer failed to exercise the degree of care that a reasonably prudent employer would have used under the circumstances will depend on the particular facts of each case. In terms of damages, generally courts will only put the employee back in the position they would have been in but for the negligence. In other words, what damage (i.e. lost wages, medical expenses, etc.) did the employee suffer due to the employer’s negligence?

In any event, employers should remain vigilant in ensuring that they keep abreast of and follow the ever-changing public health guidelines and laws related to COVID-19 applicable to their workplace, as responsibilities under the Ontario Occupational Health and Safety Act to maintain a safe workplace will always apply, whether or not there is any risk of civil liability. 

If you are an employer and have questions regarding COVID-19 and workplace safety, please contact any member of Siskinds’ Labour and Employment Group.

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