COVID-19: Can an employee sue for catching the virus at work?

HRD debunks common HR myths around COVID-19 and employment law

COVID-19: Can an employee sue for catching the virus at work?

2020 has been a year of confusion, uncertainty, and panic – and we’re only halfway through.

However, an end is in sight. Canadian businesses are going back to work, as infection rates decrease, and employers set their sights on the “new normal.”

As such, HR leaders are voicing concerns around what their legal responsibilities are concerning their employees and the workplace.

HRD spoke to Stuart Rudner, founder of employment law firm Rudner Law. Rudner recently co-authored a report with Ultimate Software, COVID Q&A for Canadian Employers, which serves as an essential guide during these uncertain times.

Rudner helped us debunk some common misconceptions around COVID-19 and employer obligations.

“There are a lot of myths out there regarding employer obligations and COVID-19,” explained Rudner. “Organizations are working off of assumptions rather than taking the time to ask important questions. By doing this, many employers are simultaneously exposing themselves to liability and underestimating their rights. For example, some employers believe they must bring back employees based on seniority or tenure with the company, and they are bringing back employees they believe they’re obliged to, rather than those they need.

“If you’re unionized, your company will have a collective agreement, which details the entire layoff procedure. However, if you’re not unionized, which is the case for most workplaces in Canada, you can decide to bring back workers based on your own selected criteria. Of course, that criteria must respect human rights laws, including not making decisions based on gender, race, sexuality, religion, etc.

“The reality is that most businesses aren’t ready to rehire all of their workforce. So, for instance, if you have a group of 10 employees, but you require only 5 right now, simply select the ones you believe are best suited and bring them back.”

Another primary concern brought up by employers and employees alike is the legal ramification of catching COVID-19 in the workplace. Can a worker sue their employer for contracting the virus while at work?

Well, according to Rudner, it’s not quite that simple.

“An employee can’t sue based upon exposure,” prefaced Rudner. “But they can raise a claim based upon actual damage. If the employee becomes sick and suffers any kind of damage or loss, then they could look at raising a legitimate claim. In most cases, however, businesses are covered by Workplace Safety Insurance or Workers’ Compensation, depending on which province you operate in.”

Finally, the issue of temperature-taking has reared its head – and it’s causing the same level of confusion as drug testing did in the early days of marijuana legalization.

“There are no hard and fast rules to temperature-taking,” explained Rudner. “However, when it comes to issues such as medical testing and documentation, it’s imperative that employers balance the duty to ensure a safe workplace with an employee’s right to privacy.

“Generally speaking, you start from the assumption that you’re not entitled to infringe upon an employee’s right to privacy. As such, any intrusive means of testing, like temperature-taking, needs to be assessed against the overall organizational benefit.”

Rudner told HRD that employers need to look at certain factors. Is this specific test required in that type of workplace? Are there other ways of achieving the same or a similar result? Is there another way you can assess the risk without infringing on the employee’s rights?

“I think, in many workplaces, it’s going to be difficult to justify temperature-taking,” added Rudner. “Essentially, if there’s a less intrusive way to achieve the same results, then you’re going to have to use the least invasive way possible.”

To uncover the answers to even more COVID-19 related-HR issues, download Ultimate Software’s  essential COVID Q&A guide here.

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