Many Canadian employees have expressed considerable concern at the prospect of being recalled to work. That’s not surprising, given that Prime Minister Justin Trudeau and his deputy Chrystia Freeland have long been trumpeting the need to stay home and cautioning Canadians on the dangers of the pandemic.
But return to work they must unless, of course, the workplace can be demonstrated to be unsafe.
Employees have not been coming out on top in these debates. Out of 278 work-refusal claims in Ontario, only one has been upheld, with only one out of 24 in Quebec. That does not necessarily mean that all Canadian workplaces are safe.
More likely, once an employee complains and asks that an inspector attend from the Ministry of Labour, Training and Skills Development, most employers have backed down and simply let that employee remain home, unless they are absolutely certain there is no safety risk that an inspector could spot.
I have always reassured employees that their company has, at least as great an incentive as they do, to maintain a safe workplace.
So what risks do employers actually face if they do not adequately protect their employees, including older and immunocompromised ones, from the dangers of COVID-19?
In the most extreme cases, there are risks under the criminal code for not maintaining a safe workplace. There are also charges under Ontario’s Occupational Health and Safety Act (OHSA) and Public Health Act which are different between provinces.
The greatest penalties are in Ontario where OHSA legislation permits $1,500,000 as a maximum fine per charge against the corporation, and $100,000 per charge against a non-compliant individual with the possibility of a one-year jail term.
Jail terms in Ontario are still very rare and have historically been invoked when workers have been left without adequate safety equipment in a dangerous situation, and had been generally charged more than once.
The Ontario Emergency Management legislation creates a duty to comply with public health advice and an even greater risk to employers. It has a maximum fine of $10 million against a corporation and $500,000 against directors and officers, plus a potential year in jail, and a $100,000 fine against other individuals such as workers or supervisors who violate the rules apart from a theoretical possibility of one year in jail, which would have to be in an unusually extreme case.
There is a defence to this legislation if the action of the company or individual was performed in good faith. That act has arisen primarily, to date, in response to worker complaints that they are being required to work in non-essential businesses which had been ordered closed during the pandemic. Despite the few number of actual rulings respecting work refusals, inspectors have been quite active, performing close to 9,000 inspections in Ontario, about half in person and the rest remotely.
Finally, there is the potential of lawsuits for negligence by employees, their families and members of the public who contract COVID-19 as result of unsafe working conditions in a workplace. It may not merely be the worker or customer who is infected who sues, but anyone who contracts COVID-19 from them in turn.
Workers covered by the Workplace Safety and Insurance Board legislation would be unable generally to sue their employer but would have to utilize that mechanism, although Workers’ Compensation branches in different provinces have issued bulletins and have different policies respecting who might be covered.
Given the two-year limitation period, we may not see these lawsuits for some time, but a harbinger may be a case involving Walmart Inc. in the U.S. Management at that store had been told by several workers that there were safety issues, but it did little to address them.
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A Walmart employee in Illinois contracted COVID-19 and died. As result, his estate is suing the retail giant for several million dollars. There’s no reason why this same lawsuit could not occur and be ultimately successful in Canada, subject to workers’ compensation legislation.
There are many industry dependent guidelines which may apply to particular operations, with different standards between provinces on requirements. The underlying issue is hazard assessment, elimination and control, in line with OHSA legislation across the country.
Employers may have to look at engineering measures, too, including designing new work spaces, personal protective equipment and different regulations in each jurisdiction, as well as involving each company’s health and safety committee, and potentially retaining experts such as an industrial hygienist or engineer to eliminate safety risks.
And now on to the questions I received recently.
Q: I am a retail store owner, opening slowly after COVD-19. I’m not taking a salary — can I collect CERB?
A: The issue is not whether you choose to take a wage but whether your net profits, based upon your historic method of accounting, amount to less than $1,000 in the applicable four-week period.
Q: If an employee uses a business computer to access their personal email (and actually saved their password on them) and has since left the company (termination with cause), are any of their personal emails allowed to be referenced when they show either new-found employment and their conversations with their lawyer?
A: You cannot access or utilize emails to and from their lawyer because of solicitor-client privilege. The only exception is to prevent fraud or criminal activity.
Q: How do you have an older employee who is past their prime to retire on their own, so you don’t have to pay a large termination payment?
A: You don’t. And any inference that you are doing so would be viewed as both a constructive dismissal and a violation of the human rights code based on age discrimination. You have to wait until they choose to resign or legitimately build up a case for incompetence.
However, even then, you will have to accommodate for age-related disabilities. You can terminate any employee in most jurisdictions by providing reasonable advance notice but again, if there is evidence you are doing this because of their age, they can be reinstated as part of a human rights application.
Got a question about employment law during COVID-19? Write to me at firstname.lastname@example.org.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.