The second wave of COVID-19 infections threatens to undermine the significant progress we have made in establishing a balance that takes account of the need to jump-start the economy and the legitimate safety concerns of workers returning to their jobs. The government and regulatory bodies in Ontario and Canada have established protocols and standards aimed at reducing the risk of spreading the virus.
It is up to each employer to ensure that appropriate measures are implemented and maintained. There are no systems in place to ensure compliance, but the Ministry has taken measures to increase inspections and has added 60 officials to support employers and employees in the field.
Employees are justifiably concerned that adequate measures are put in place at their workplace, and that their health and safety, and that of their families, are being protected. Often, these employees simply must trust that their employers are holding up their end of the bargain. Employees have the right to file a complaint with the Ministry of Labour, but often the fear of retribution becomes an issue.
In Ontario, there is a general legal duty of care on employers to provide a safe workplace for workers and third parties. This general duty applies to the current COVID-19 crisis. If the duty is not met (for example, an employer refuses to ensure that physical distancing is maintained), an employee might be able to start a lawsuit seeking damages.
However, in practice, many injured workers cannot exercise this right. The Workplace Safety and Insurance Act (WSIA), which governs Workplace Safety and Insurance Board (WSIB) claims, establishes a “no-fault” system that provides benefits to eligible employees who have suffered a workplace injury in exchange for removing the employee’s right to sue.
Click here to read six steps an employee who has contracted COVID-19 can take when considering whether to start a lawsuit against their employer.