As Ontario moves from strict social distancing measures to the more ‘normal’ Phase 2 (and Phase 3) economy, businesses are faced with concerns about their employees and staff contracting the coronavirus. Employers are concerned, understandably, that an employee may become infected on the job and, consequently, will sue for a workplace injury: something that will remain a real danger for many more months to come.

Should employers be considering Covid-19 waivers when reopening?

Waivers are essential for ensuring a safe culture at a workplace during and after reopening. An employer is obligated to “take every precaution reasonable in the circumstances for the protection of a worker” according to the Ontario Occupational Health and Safety Act, but that should not mean an employer is liable for its employees’ potentially reckless or negligent actions. A waiver can codify that distinction and, by doing so, stipulate that employees have a responsibility to take all reasonable measures to protect their health.

Note that an employer and employee cannot contract through a waiver to disregard or break the law. That means an all-encompassing waiver that purports to release the employer from all liability for Covid-19 infections is unenforceable. Employees’ rights to refuse work that is dangerous or unsafe (for instance if they are asked to perform regular work without PPE) also cannot be waived, nor can they be prohibited from exercising their right to contact the Ministry of Labour regarding workplace infringements.

 What is the effect of waivers?

While a waiver cannot negate legal liability, it can reduce a business’s exposure to lawsuits resulting from a workplace injury. A waiver does not protect an employer from its negligence. For a waiver to be effective, it must specify the circumstances and situations in which the employer is not liable for risk and injury.

Waivers must be able to withstand courts’ blue pencil test: that which involves a choice between invalidating an agreement in its entirety or just the offensive language regarding specific issues. Such a challenge can arise from expanding waivers to cover non-Covid related situations, or if they are perceived as trying to exclude the safeguards that the Employment Standards Act and OHSA have put in place. Talk to a Pace Law Toronto personal injury lawyer about drafting waivers for your business.

Managing the perception of a Covid-19 waiver

When drafting a waiver, it can easily swell to cover seemingly every eventuality, which may have the unintended effect of offending employees and generating ill-will. Employees may feel pressured or obligated to sign an onerous waiver in order to protect their continuing employment. One way to assuage concerns could be to add a clause to the waive that stipulates the business will not pursue employees for any Covid-related exposure that they might create.

What are the limitations of waivers?

Can an employer ask an employee to sign a waiver saying that, if they contract Covid-19 in the workplace, they will be precluded from pursuing any legal action against the employer? No, an outright exclusion of liability is not permitted. Employers are responsible for taking ‘reasonable’ precautionary steps to keep their employees safe from exposure. Of course, defining what is ‘reasonable’ will depend upon the nature of the business, the costs associated with protective measures, and general industry standards and trends. A Toronto workplace injury lawyer will be able to guide and assist you in implementing the appropriate protocols you should adopt to reasonably ensure that your employees are safe in the workplace.

What should an employer do to keep employees safe?

Workplace safety compliance in a post-Covid world will look something like this:

  • Training and supervision of employees
  • Reasonable steps to ensure a safe working environment (sanitizing and hand washing, physical distancing, transparent shields)

Legal immunity legislation

Since the Covid-19 threat is community-wide and, therefore, may be unconnected to work or the workplace, there is a possibility that a business may be granted legal immunity. That exemption could define reckless conduct and negligence, which could reduce (or increase) legal liability.

At Pace Law, we are advising clients to help make their workplaces safer, while protecting their legal and financial interests. Speak to a personal injury lawyer in Toronto about drafting a suitable waiver for your business.

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