Can an employer be held responsible for the death of an employee, or anyone who they owe a duty of care to, in the event that the person under their employ succumbs from contracting COVID-19 in the workplace? This is a complex but important question to consider due to the potential punitive consequences that could arise from such a scenario.
Ontario Labour Laws
Ontario’s Ministry of Labor has already released specific sets of guidelines for every essential business, in addition to those that will be returning to their workplaces after working remotely. These guidelines, if not adopted correctly, can result in enforcement actions such as stop work orders issued by the Ministry of Labor inspectors, in addition to fines and other punitive measures. As of May 21, 2020, the Ministry of Labor has already conducted 7,542 workplace inspections, issued 3,547 orders to workplaces, and issued 20 work stop orders. Ontario’s Ministry of Labor has already released specific sets of guidelines for every essential business, in addition to those that will be returning to their workplaces after working remotely. These guidelines, if not adopted correctly, can result in enforcement actions such as stop work orders issued by the Ministry of Labor inspectors, in addition to fines and other punitive measures. As of May 21, 2020, the Ministry of Labor has already conducted 7,542 workplace inspections, issued 3,547 orders to workplaces, and issued 20 work stop orders.
S. 219 states that anyone who by doing something, or failing to do something that it is their duty to do, shows wanton or reckless disregard for the safety or lives of other persons is criminally negligent. S.220 states that anyone who by being criminally negligent causes the death of another person is guilty of an indictable offence.
As a consequence of the Westray Law enacted in 2004, the Criminal Code was revised to specifically include the responsibility of employers to prevent bodily harm of people under their employ, or individuals who may be harmed as a result of the work.
Let us now turn our attention to s. 25 of the Occupational Health and Safety Act of Ontario that directs the employer to ensure that the safety and wellbeing of the people under their care and influence are protected through many different provisions such as ensuring that the employees are provided protective equipment and devices, that the prescribed measures and procedures are carried out in the workplace, and that they take every precaution reasonable in the circumstances for the protection of the worker.
If an employer or a person knowingly and willfully fails to act, or acts with a wanton or reckless disregard for the safety of the person under their care, and thus fails to take every precaution necessary for the protection of the worker, and the worker thus dies as a result of the work that they were undertaking, the employer can definitely be prosecuted for criminal negligence. The most important factor for a successful prosecution under this charge is if the Crown can prove without a reasonable doubt both the Actus Reus (the act/omission itself) and Mens Rea (the criminal intent). Thus if a worker dies as a result of contracting COVID-19, and there is sufficient proof to show that the death was a result of the employer acting intentionally and recklessly and failing to ensure their wellbeing in the circumstances, the worker can be charged with criminal negligence.
What do employers need to do when ensuring that they take every precaution necessary to ensure that their workers are safe in the post-global outbreak of COVID-19?
It largely depends on the complexity of the workplace and work processes themselves. Ensuring that the workstations are sanitized, that all workers returning to work are screened, sanitary measures and procedures are adopted and enforced as per government guidelines, and that adequate PPE is provided and that the workers are utilizing those as prescribed are just a few of the very basic necessities for a workplace already in operation, or a workplace that is returning from working remotely.
Regular workplace inspections, risk assessments, and increasing managerial leadership to spearhead these necessary initiatives and changes to the work system will also play a pivotal role in ensuring that the workplace complies with existing and emerging legislation, and that they also work towards exceeding these minimum standards to set a high benchmark for all businesses.