On October 20, 2020, the Ontario provincial government announced new legislation entitled “Supporting Ontario’s Recovery and Municipal Elections Act 2020”, also known as Bill 218. Many employers concerned about the risks of operating in the midst of the COVID-19 pandemic will be relieved that Bill 218, currently with the Standing Committee on Public Policy for consideration, is expected to be passed.  One of the purposes of Bill 218 is to protect employers from civil claims related to COVID-19 exposure liability, as a direct or indirect result of an individual being potentially infected or exposed to COVID-19 in their workplace, Bill 218 states that if there has been a “good faith effort” to comply with “public health guidance”, then employers are not liable if an individual has been infected with COVID-19.

This legislation is definitely good news for many employers especially now that Ontario has hit the second pandemic wave. Employers that were permitted to reopen were forced to operate in a risky environment, uncertain if they have done enough to comply with employer obligations arising from COVID-19.  Bill 218, if passed, will provide employers with more clarity as to what they need to do in order to protect themselves from liability against civil claims related to COVID-19 exposure in the workplace.

Actions determine outcomes

Under the legislation, the term “good faith” is defined as “an honest effort”.  Legally speaking, a “good faith effort” means what a reasonable person would consider an honest and diligent effort to follow the prescribed guidelines with respect to COVID-19.

Bill 218 does not afford protection to employers from claims where gross negligence or intentional misconduct is involved. This means that the legislation would not protect anyone who consciously or voluntarily disregarded the need to use reasonable care when they ought to have known that it could cause harm. What constitutes “gross negligence” in the context of COVID-19 will be a very fact specific determination.

Practical tips on what employers should do to comply with “public health guidance”

Once Bill 218 becomes law, employers need to ensure they are doing everything possible to comply with public health guidance in order to benefit from its protection. Here are five practical tips for employers to follow:

 

Tip #1: Monitor changing guidelines

In order ensure they benefit from Bill 218’s protections, employers should continue to monitor and implement COVID-19 guidance from all three levels of government (federal, provincial, and municipal), including all applicable laws. To ensure that information is up to date regarding changing public health recommendations and laws, it is best to have a designated person – such as a member of the health and safety committee – to monitor developments in relation to COVID-19 to update policies and communicate them to staff.

There are a number of places that serve as credible sources of information such as:

• Government of Canada: https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html
• Government of Ontario: https://covid-19.ontario.ca/
• City of Toronto: https://www.toronto.ca/home/covid-19/
• World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Tip #2: Document everything

The best way for employers to protect themselves from liability is to document the efforts that they make to comply with the prescribed COVID-19 protocols and other measures implemented with a view of limiting individuals’ risk of COVID-19 exposure.

It all starts with the COVID-19 Safety Plan which should document all of the policies and procedures that employers have implemented to reduce the risk of COVID-19 exposure in the workplace.  Employers should take care to provide information and education to employees as they roll out the COVID-19 Safety Plan so that employees are aware of their obligations in the workplace. A template for this document can be found at https://www.ontario.ca/page/develop-your-covid-19-workplace-safety-plan.

Tip #3: Ensure everything is clearly communicated and posted

Signage and communication will be key in establishing employers’ “best efforts”.

This includes highly visible signage for things like:

• Protocols in relation to workstations
• Directional signage in narrow hallways and communal areas to maintain physical distancing rules
• Restrictions with respect to the usage of communal areas such as kitchens, elevators, and meeting rooms
• Schedules for the cleaning and disinfection of frequently touched surfaces and high traffic areas such as elevators, meeting rooms, and washrooms
• Clear communication at all entry points that it is not permitted for anyone to enter the business if they have symptoms of COVID-19

Tip #4: Set clear and formal processes

During times of crisis and uncertainty, it is imperative for employers to have clear and formal processes to maintain calm and eliminate confusion.

Regarding the pandemic, employers should ensure that there is a formal mechanism in place if someone is sick or tests positive for Covid-19, including a visitor log for contact tracing purposes.  This process should be outlined in the COVID-19 Safety Plan referenced above.

Regular operational processes should also be revisited. For example, consider holding client meetings remotely, via teleconference, or outdoors. Businesses should also consider adopting a contact-less business model and implement drive-through delivery and curbside pick-up with clear signage for customer pick-up and delivery.

Tip #5: Provide information and training

Provide clear information and instruction for workers.  Employers should conduct training for workers on possible COVID-19 transmission points in the workplace and ensure that the training efforts are documented including recording employee attendance. Information relating to COVID-19 should be presented in a way that is easy to understand. It could include graphics, pictures and sector specific resources provided by the Ontario Government. If the workplace happens to be multi-lingual, COVID-19 safety protocols should be translated into the languages spoken by employees at the workplace.  Public Health Ontario has also provided printable posters in commonly spoken languages.   

Bill 218 will help employers to mitigate operational risks There is no doubt that COVID-19 has created a period of unprecedented risk and instability for employers. Employers face many operational risks including employees who are reluctant to comply with COVID-19 safety protocols in the workplace. Employees are more like to comply with COVID-19 safety protocols when there is legislation that sets out guidelines’ employers need to follow. Bill 218 represents a step in the right direction and will likely help to ease the burden of employers as they continue to navigate the challenging times ahead.

One notable exception to Bill 218 is that it does not provide much protection to employees. The legislation will not permit an employee to initiate a lawsuit against an employer if they are infected with COVID-19 in the course of their employment. Employees who contract COVID-19 may however, have legal recourse against their employer under the Ontario Workplace Insurance and Safety Act.

The Hum Law Firm will continue to monitor legal developments in relation to COVID-19 liability protection. We encourage you contact us immediately for legal assistance.  Call us at 4162142329 or

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