Employers are bound by a general duty to take reasonable steps to protect the health and safety of their staff from workplace hazards. As you will see, the COVID-19 pandemic has made it difficult for employers to fulfill that general duty. Presently, the legislative framework and case law do not provide employers with a clear and universal basis for satisfying the general duty. As such, employers who fail to take active steps—or who take overly active steps—to address pandemic hazards run the risk of endangering their workforce and may be subject to liability and operational closures.
While there may not be a standard answer to address the general duty for all employers, we recommend employers consult with experienced employment law lawyers. This way, the nature of the workplace and their business activities can be assessed on a case-by-case basis, and occupational health and safety (OHS) best practices can be observed.
Despite employers’ general duty, a good starting point is to remember that instituting OHS is not exactly like a one-sided tap-dance performance by the employer. Nor is it necessarily a two-sided dance, like the tango. Instead, and at the risk of belabouring the dance analogy, instituting OHS is most like a “flashmob” performance which should not conclude. A primary purpose of Ontario’s Occupational Health and Safety Act, RSO 1990, c 0.1, is to facilitate a strong “internal responsibility system” (IRS). IRS means that everyone in the workplace has to play a role in keeping the workplace safe and healthy. For instance, under the Act, employees are required to report hazards or Act contraventions they observe to the employer. Once reported, employers are required to address those situations and also to familiarize their staff with any hazards present in the work they perform.
Employers can begin to address pandemic-related hazards by integrating regional and municipal public health authority guidelines within their IRS. This may take shape through:
- posting the requisite guidelines in the workplace and through broadcast email notifications to the workforce;
- enhancing on-site custodial services through more frequent cleaning and disinfection;
- instituting workplace screening questionnaires; and
- distributing personal protective equipment and hand sanitizer amongst staff.
As we eagerly await a return to a pre-pandemic life, the gradual distribution of Pandemic vaccines will impose a further complicating factor to employers interested in discharging their general duty. While we suspect most of the general population is interested in getting inoculated when the vaccine is available and accessible, some people may reject the scientific consensus supporting COVID-19 vaccination. Therefore, can an employer require its workforce to get vaccinated, for instance, once Ontario is in “Phase III” distribution where vaccines will be made available to the general population? This question triggers various competing interests beyond OHS and the employer’s general duty, namely, privacy interests, human rights, and constitutional rights.
At present, the legislature and the courts have not answered the above question. And while an argument could be made that an employer may be permitted to require its workforce to get vaccinated in very certain situations, applying that argument as a general standard could very well lead to inadvertent liability because of the competing employee rights and interests at stake.
Nevertheless, and as previously stated, we recommend employers consult with experienced employment law counsel to ensure that they are taking active steps to discharge the general duty and avoid any other risks of liability caused by the pandemic. An experienced employment lawyer would also take into account the risks of an overly aggressive OHS response initiative.
Junaid is an associate in Lawrences’ Litigation Group. Junaid’s practice is focused on civil litigation, including corporate/commercial, employment, labour, and human rights disputes. He advises and represents management as well as employees before various levels of court and administrative tribunals.