By
Pace Law

Laid off and ill: Is your employer liable?

May 10, 2020

Covid-19 has placed a fresh onus on employers to keep their employees safe. Especially for front line workers, employers must take decisive steps to protect their health and safety and prevent workplace injury. These obligations look set to continue beyond the end of the Covid-19 lockdown, and once enhanced social distancing measures are put in place.

The best way for employers and employees to maintain a safe working environment is by following public health guidance on staying safe.

In a post-Covid world, employers and employees must be mindful of:

  • Reporting to work if they are experiencing symptoms
  • Who should be practising self-isolation
  • If employee travel is essential
  • Are Covid-tracking measures infringing on employees’ right to privacy

In this article we answer a simple question: if an employee has been laid off from work and are now Covid-19 positive, is your employer liable for this occupational illness?

Laying off an employee due to Covid-19

Employers are obligated to take reasonable steps to protect staff from workplace injury. If someone has travelled to a high risk area then it would be reasonable to ask this person to quarantine at home, until they are given the all-clear by public health to return to work.

However, this does not mean employers can order staff members to isolate or treat employees discriminatorily just because they live in a high risk area or have ancestry to areas that have seen a high risk of coronavirus transmission.

Covid-19 insight

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Employee contracts Covid-19

If an employee is confirmed to have contracted Covid-19, an employer must accommodate them to ensure they are able to stay at home and not risk further transmitting the occupational illness at the workplace. If the person is showing symptoms and is unable to perform their role, they may be eligible to receive:

  • Sick leave (paid or unpaid, depending on the employment contract)
  • Short term disability benefits
  • Employment Insurance
  • Accommodations to help them work from home

Employee laid off and now Covid-19 positive

What are the duties of an employer who has laid off an employee after it is discovered he or she has Covid-19? Can an employee sue their employer? The short answer is “Yes”, an employer can be sued for a workplace injury even if the employee has been laid off.

The most important question that will have to be answered is whether the employee was infected in the course of work. Certain occupations (‘front line’ workers) have a greater risk of infection and there may be greater legal impetus on employers to take care of their employees.

  • Did the employer have a duty to take reasonable steps to protect the health and safety of their employees?
  • Was that duty breached? (For instance, lack of PPE, negligent work protocol)
  • Did the employee contract Covid-19 due to the employer’s lack of care?
  • What adverse health effects has the employee suffered?

Defence for employers

An employer is required to take reasonable precautions to protect the health and safety of their employees. Therefore, the defence of a Covid-19 employment lawsuit will begin by understanding if it discharged its responsibility to keep employees safe. This can mean looking at: if work oriented travel was minimized, whether any potential for Covid-19 infection was reduced, accommodations for working remotely were made.

Whether the employee was transmitted coronavirus at the workplace or in the course of work

Establishing employer liability also requires proving that its failure was what led to infection. That would be difficult to prove, unless the employee was in a front line role, such as healthcare. There are many other sources of infection and there will be a very significant burden of proving that it occurred in the course of employment.

Keeping safe in the “new normal’

The Covid-19 lockdown may wind down soon but public health concerns and social distancing measures are set to run and run. Employers must continue to observe public health recommendations to ensure their workforce is defended against Covid-19.

Talk to Pace Law Firm’s personal injury and insurance claim lawyers about the insurance your business must have to protect your employees’ health.

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Toronto, ON M9C 5K8
Phone: 1-877-236-3060
Fax: 416-236-1809

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