Howard Levitt: Why the new Supporting Ontario’s Recovery Act leaves employers exposed to COVID-19 lawsuits

Keep your guard up and watch your back, employers. Your provincial government was, unhappily, only watching its own.

Ontario’s employers should know that a new act leaves them exposed — like a raw nerve.

The rest of Ontario — including the provincial government itself — is now protected against lawsuits from people who have contracted COVID-19, under the Supporting Ontario’s Recovery Act (formerly Bill 218), that was enacted on Nov. 20.

Retroactive to March 17, nobody can sue anyone else as a result of exposure to, and infection from, the novel coronavirus. Everyone is protected as long as they have made a “good faith effort” to comply with COVID-19 laws, public health guidance, and have not been grossly negligent. Unless they are an employer.

The act permits two types of potential claims against employers.

First, those covered by workers’ compensation legislation if they contract COVID-19 at, or because of their, work. This makes reasonably good sense — the only irksome consequence for employers is higher Workplace Safety and Insurance Board (WSIB) premiums. Employees can recover 85 per cent of their pay and all their medical expenses while they battle the illness, keeping them solvent and not dependent on other forms of social assistance.

But the Act permits a second type of claim. Workers not covered by WSIB — about 25 per cent of employees in the province — can sue their employers in court if they contract COVID-19 at work. “Workers” in this context includes, not only traditional employees, but a much broader group encompassing contractors and even others performing limited-scope services. The “employers” of all these workers are now the only group in Ontario unfortunate enough to be exposed to a full spectrum of COVID-19 related damages.

So much for the provincial government’s claim of being pro-employer.

Compounding their misfortune, many of these employers not covered by the WSIB are the ones facing heightened risks of COVID-19. Among these are private care homes, private health-care practices, private schools and daycares, funeral directing and embalming, and social assistance services, all of which deal with the public and have the greatest risk of infection. And now they are at risk of being sued.

Many employers in these industries have taken the risk of opting out of workers’ compensation insurance in order to save money. That risk may turn out to have been sorely miscalculated in the event of a civil claim from even one or two workers suffering from worst-case-scenario COVID-19 prognosis, which could give rise to liability in millions of dollars.

Surely, this group should have been top of mind for those providing legal protection. Why would an act, purportedly designed to dam an economically disastrous flood of COVID-19 lawsuit, intentionally exclude the group of people most exposed? And it’s not just these employers. Their vulnerable employees will be without redress if the employers are rendered insolvent by these massive lawsuits.

So much for the provincial government’s claim of being pro-employer

What’s clear is that Ontario employers should immediately redouble their COVID-19 prevention efforts. Well-worn precautions currently include wearing masks and other applicable personal protective equipment, social distancing, regularly sanitizing shared surfaces, and screening employees for symptoms before allowing them to enter the workplace. To go even further, employers can also consider rotating shift schedules and revamping ventilation systems to reduce aerosols in the air.

Strictly adhering to public health guidelines not only reduces the risk of workers contracting the virus in the first place, it has the bonus of pre-emptively frustrating any lawsuits (and claims for WSIB benefits) that arise.

In both cases, in order to succeed in a claim, workers must be able to prove that they contracted the coronavirus in the workplace. In other words, workers will fail if the workplace is so safe that there is a substantial likelihood that they picked up the virus elsewhere.

From the employees’ perspective, this also means that those who take significant risks outside of the workplace (i.e. going to bars or hosting the whole extended family for Thanksgiving) will find it much more difficult to prove they contracted COVID-19 at work and thereby defeat their own claims.

Employers faced with massive potential claims will prudently hire private investigators and otherwise attempt to establish that the employee had engaged in risky behaviour in order to argue that their suing employees likely did not contract COVID-19 in their workplace. Workers, for their part, should reduce their risks outside the workplace, including limiting contact with others outside their immediate households. This will serve as a prophylaxis to not only their health, but also protect their legal rights in the event that they contract the virus.

Employees should also know that claiming WSIB benefits is not their only option. Others include employer-provided benefits such as sick leave or short-term or long-term disability insurance, and government-provided benefits such as Employment Insurance, EI Sickness, Canada Pension Plan Disability, Ontario Works and Ontario Disability Support Program. These have the advantage of not requiring claimants to prove they contracted COVID-19 in the course of their employment.

My ultimate message to employers is this: keep your guard up and watch your back. Your provincial government was, unhappily, only watching its own.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

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.