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Employers Not Protected From COVID-19 Lawsuits Under New Legislation!

By January 12, 2021October 21st, 2021Employment Law

Recently enacted legislation protects individuals, companies and the government from liability towards anyone who was exposed to and contracted COVID-19. This protection is afforded to virtually all Ontarians EXCEPT employers!

The Rule and the Exception

In an effort to curtail lawsuits from people who have been exposed to and contracted Covid-19, Ontario enacted the Supporting Ontario’s Recovery Act. The legislation is retroactive to March 17, 2020. It states that no one will have civil liability towards a person who was exposed to and contracted COVID-19 provided there was a “good faith effort” to follow all COVID-19 laws and public health guidelines, and there was no gross negligence on the part of the person or entity being sued.

The Act applies to individuals, corporations, and the government itself. But there is an important exception. A class of individuals and corporations who are not protected and are expressly excluded from protection under this legislation are Employers. The Act specifically carves out an exception for any “worker” (which may mean employee or contractor) who is exposed to or becomes infected with COVID-19 on the job or in carrying out their duties.

What Does This Mean for Employers?

If you are an employer covered by WSIB, and you have an employee who contracts COVID-19 while on duty, then that employee may be able to submit a claim through WSIB according to the Workplace Safety and Insurance Act (WSIA). Beware, when a WSIB claim is submitted, an employer’s premiums usually go up as well.

But what if you are an employer who is not covered by WSIB? In that case, unfortunately, you and/or your corporation are exposed to liability towards your employees when it comes to COVID-19 exposure and infection on the job.

This is especially important for dentists because dentist employers are not required, by law, to obtain WSIB for their employees. And the liability insurance offered through the RCDSO does not cover employee liability. As per the Professional Liability Program:

The errors and omissions policy provided by the RCDSO to its members and administered by PLP protects Ontario dentists against liability arising out of the performance of or failure to perform “professional services”, defined as the practice of dentistry and “those services … reasonably considered by the [RCDSO] to be part of, related to, or ancillary to” the practice of dentistry in Ontario.

In other words, PLP assistance is limited to patient claims of malpractice or negligence in providing dental treatment, e.g. performing endodontic therapy on the wrong tooth or failing to diagnose osteomyelitis.

What Can You Do to Protect Yourself?

The legislation requires employees to prove that the infection occurred in the course, or as a result, of employment. So it is more important than ever that employers ensure that they follow all laws relating to COVID-19, including public health guidelines, and doing their best to protect their employees while on the job.

Dentists have always had strict infection prevention and control guidelines (as set out by their College and the Provincial Infectious Diseases Advisory Committee). But now, in light of employers’ exclusion from this new legislation, dentists need to redouble their efforts to safeguard their employees from COVID-19 and protect themselves from added liability. One way to do this is to ensure all workers are on board with new policies and procedures by

  • continuously holding team huddles,
  • informing workers of the latest COVID-19 news and
  • updating policies as new rules and guidelines are put in place by the government, the College and public health.

Bottom Line

Prior to COVID-19, we recommended reviewing and updating office policies (especially infection prevention and control) at least once per year. However, that has changed since COVID-19 and the rapid speed with which new laws and policies are being made. We now recommend reviewing your office policies every month, or every time there is new information from the government, the RCDSO or public health Ontario. Reminding staff about the contents of these policies and checking in as to whether they understand and have been following the policies is also extremely important.

Here are the policies we recommend reviewing frequently:

  • Infection Prevention and Control
  • Health and Safety
  • Personal Protective Equipment
  • Specific Practices For Aerosol Producing Procedures
  • Cleaning and Disinfecting Surfaces
  • COVID-Specific Policies (such as what to do in case of an exposure)

For more information on an employer’s responsibilities during the pandemic, please refer to our Employment Law Changes & Updates section for the latest announcements in provincial and federal policies.

If you need help updating your Office Policy Manual or have questions about your employee liability, we can help. We are happy to help and offer more information on these and any other employment issues. DMC is dedicated to helping dentists understand and minimize the risks associated with being an employer. Send DMC an email or give our Employment Law Team a call directly at 416-443-9280 extension 206.

The Content of this post is provided for informational purposes only. It is not intended to be legal, financial, tax, or other professional advice of any kind. You are advised to contact DMC (or other counsel) to seek specific legal advice concerning your individual situation.