CHAUDHRI: Why Donald Trump’s positive coronavirus test should be a lesson to employers everywhere
Good institutions are led by good CEOs. CEOs act as walking, talking billboards personifying what it is their companies believe in. The same applies to U.S. President Donald Trump, leader of the biggest institution in the world.
In a sense, Trump leads everyone. How he responds to unemployment, health care and the coronavirus pandemic has largely shaped how American companies respond and interact with their own employees on the same issues.
It is no secret that Trump has downplayed aspects of the coronavirus, most recently at a debate versus Democratic nominee Joe Biden. When grilled on his views of wearing masks, Trump said, “I wear a mask when I think I need it,” and teased Biden for always being seen in a mask, even at a 200-foot distance, quipping, “He shows up with the biggest mask I’ve ever seen.”
On his campaign style and the size of his rallies on the campaign trail, Trump gloated about the size of his rallies (in the thousands) while ignoring the obvious issues of gathering attendees in close proximity, not social distancing and, in various cases, not wearing masks. To that, Trump seemed to defend the lack of precautions taken by insisting that by having the rallies outdoors, the same risks just weren’t, well, as risky.
Trump’s casual relationship with pandemic protocol is particularly alarming now that he tested positive for the virus. Have other White House staffers been exposed due to his laissez-faire approach? If the leader admonished the use of masks at staff meetings, and mocked social distancing so as to pressure staffers to increase their risk of contracting the virus, legal liability is the obvious consequence. To be clear, Trump’s actions with staffers aren’t (yet) in the cross-hairs but his public response to the pandemic portends what may unfold in weeks to come.
There is a general duty of care that organizations (including directors and officers) owe employees and third parties a safe working environment.
If an employee is infected with the virus, he or she may allege a director or officer and their employer breached their collective duty of care. Not only can employees then sue the organization and the director and officers civilly for negligence, in Ontario the Occupational Health and Safety Act is explicit in requiring all directors and officers to take reasonable care to ensure that its corporation comply with the provisions in the Act. If this doesn’t happen, directors and officers can be personally liable for the lack of response or prevention in the workplace.
This can result in financial and other penalties. In rare cases, criminal negligence may be considered like the current criminal investigations taking place at some Quebec long-term care facilities.
If your workplace isn’t taking the pandemic seriously or employs members of management who roll their eyes at safety and prevention, act now and clean up what may be a legal nightmare if left unattended. Regardless of personal views, workplace safety during the pandemic is a statutory and occupational requirement. Casual attitudes toward coronavirus could be your organization’s downfall.
On to your questions this week:
Q. I saw a news article about directors being liable over $100,000 if reopening rules are ignored. What reopening rules is the province talking about?
A. A good summary of what the province of Ontario expects employers to follow can be found at Ontario.ca.
Specifically, employers must consider:
— Assessing the workplace for risks.
— Providing adequate training to staff.
— Creating policies and procedures around prevention.
— Considering when a refusal to attend work must be considered.
— Availability of PPE.
Q. It’s been over six months and I still haven’t been recalled to work. CERB has run out. My employer now says they will get back to me in January about my recall. Do I have to just wait?
A. If you haven’t already told your employer you are ready and eager to return to full-time work, do that now, and in writing. Letting your employer know helps get you to the front of the line and strengthens your legal case if you’re not called back. If you don’t get a response, consider using a lawyer to help get you recalled quickly or to secure a severance package if you going back to work is not in the cards.
Q. At work, we sometimes have group meetings. There is enough room to physically distance, but I notice no one wears a mask. I have kids at home and an elderly in-law. I would feel weird wearing a mask when others don’t, but I want to be safe. What should I do?
A. Wear the mask.
— Send your workplace questions to schaudhri@levittllp.com and your question may be featured in a future article. Till then, stay safe my friends!