Employers are bound by a general duty to take reasonable steps to protect the health and safety of their staff from workplace hazards. The Covid-19 pandemic has made this difficult to fulfill. Presently, the legislative framework and case law do not provide employers with a clear and universal basis for satisfying the general duty. As such, employers that fail to take active steps — or that take overly active steps — to address pandemic hazards run the risk of endangering their workforce and may be subject to liability and operational closures.
Instituting occupational health and safety (OHS) best practices is not a one-sided tap dance by the employer. Nor is it necessarily a two-sided dance like the tango. Instead, and at the risk of belabouring the dance analogy, instituting OHS is most like a flash mob, which should not conclude.
A primary purpose of Ontario’s Occupational Health and Safety Act is to facilitate a strong internal responsibility system. This means that everyone in the workplace plays a role in keeping it safe and healthy. For instance, employees are required to report hazards or act contraventions to their employer. Employers then must address those situations and familiarize staff with any hazards present in the work they perform.
Employers can begin to address pandemic-related hazards by integrating regional and municipal public health guidelines within their internal responsibility system. This may take shape through posting the requisite guidelines in the workplace and sending e-mail notifications to the workforce; enhancing on-site custodial services with more frequent cleaning and disinfection; instituting workplace screening questionnaires; and distributing personal protective equipment and hand sanitizer amongst staff.
The gradual distribution of pandemic vaccines is a further complicating factor to employers interested in discharging their general duty. While the majority of Canadians are open to getting inoculated, there is vaccine hesitancy amongst some within the populace.
Given this, can an employer require its workforce to get vaccinated, for instance, once vaccines are available and accessible to all?
This question triggers various competing interests beyond OHS and the employer’s general duty, namely privacy concerns, human rights and constitutional rights.
At present, the legislature and courts have not unequivocally addressed these tensions. Although an argument could be made that an employer may be permitted to require its workforce to get vaccinated in very certain situations, applying that argument as a general standard could lead to inadvertent liability because of the competing employee rights and interests at stake.
It is recommended employers consult with an employment lawyer to ensure they are taking active steps to discharge the general duty and avoiding any other risks of liability caused by the pandemic. An experienced lawyer would also take into account the risks of an overly aggressive OHS response initiative.