You may have heard the phrase “duty of care” from your employer in your initial orientation, as the company voiced their dedication to you, as their employee. But what does this phrase really mean and how does it apply to you? In the case of your employer, duty of care is defined as the legal obligation to protect you from harm while you are in their care. This applies to any time you are providing services to your employer, being engaged in their activities, or both. While it’s comforting to know that your company is legally obligated to have your back, what does duty of care really mean to you as an employee, and how might it affect you during and post COVID-19? In this article, we’re going to take a look at the test for duty of care, how your employer’s poor duty of care might put you at risk, and what claims of negligence might be covered under the Workplace Safety and Insurance Board.

What is Your Employer’s Duty of Care?

Your employer has the legal obligation to take all steps that are reasonably possible in order to ensure your health, safety, and wellbeing. This applies to not only your physical safety but to your mental health as well. While this may seem broad, your employer has agreed to take on responsibility for your safety from the minute you walk in the door for your shift, to the moment you clock out for the day. Not only that, but they have an obligation to ensure the safety of their employees outside the premises when they are completing work for their company, such as in the case of international business travelers.

An employer’s duty of care also expands beyond what you might consider “ordinary” circumstances and prepares for the worst-case scenarios – including safeguarding their employee’s health during a pandemic such as COVID-19.

Who is Responsible for Duty of Care?

So, who is responsible for fulfilling the duty of care obligations within your organization? While you would assume that some of the higher-ups, such as the business owner or company managers, would be solely responsible for fulfilling these obligations, it is not as straightforward as this. The answer to this question will largely depend on both the size and the organizational structure of your company. 

If your company is a larger organization, then it is more likely that it will have dedicated employee safety roles. These may include positions in EHS (employee health and safety), BC/DR (business continuity and disaster recovery), Risk Management, Emergency Preparedness, as well as HR. These positions are created in order to handle duty of care obligations, and are responsible for making sure that no leaf is left unturned when it comes to ensuring the health and safety of employees. 

Regardless of whether there are specific positions set in place that focus on this matter, duty of care still needs to be at the forefront of every manager’s mind within the organization. It is part of their job to check in with their employees, ensure that they are following instructions, and to prepare them for a wide array of emergencies that may arise in their department.

What is the Test For Duty of Care?

No matter how well prepared an organization is, incidents can happen. If an incident (even if considered common) is caused by a breach in duty of care from your employer, this can turn into a cause for a negligence lawsuit. 

In order to determine whether or not your employer has breached their duty of care, there is a legal test that must be answered, as set out by the Supreme Court of Canada. This legal test applies in the case of all negligence lawsuits. 

For determining a breach in the duty of care by your employer, this two-question test is set out by the following:

1. Was the harm that occurred to the employee reasonably foreseeable and a consequence of using the employer’s services, being exposed to their activities, or both?
2. Was the employee under an obligation to be mindful of the circumstances in which the employer placed them while conducting their affairs?

Making sure you are being provided with a safe working environment is one example of how your employer must exercise a duty of care. While there is no set formula for what constitutes a safe working environment, there are many factors that could apply here. 

An example of the above may be if an employee suffered a trip and fall due to a poorly lit common area. Tripping and falling would be a reasonably foreseeable consequence of inadequate lighting, which should have been corrected or replaced by the employer. Unless these circumstances were a contractual part of the employee’s agreement, they should not be under an obligation to perform their job in unsafe conditions. Therefore, this employee may have cause for a negligence lawsuit against their employer.

How Does Duty of Care Apply To COVID-19?

An employer’s duty of care stretches well beyond shutting down their physical premises if they are a non-essential business, in the case of a pandemic such as COVID-19. If an organization is found to not be taking sensible steps to protect the health of its employees, whether working from home or on its physical premises, it could mean a hefty lawsuit for their business.

It can be difficult to prove that an employee contracted an illness as a result of the employer’s breach in duty of care. Having said this, if the employer is not able to prove that they considered the risks carefully, and took sensible steps to minimize the damage of said risks as much as possible, it can certainly add to the case against the organization.

There have already been several lawsuits in regards to employees suffering serious physical illness or even death from COVID-19, as a result of their employer not taking serious precautions against it. This includes a wrongful death lawsuit filed against retail giant Walmart in the United States, claiming that the store did not do enough to protect its employees from the coronavirus.

Further claims that may result from COVID-19 include the issue of overworking. With a growing number of the workforce being unable to fulfill its duties, there has been an increase in the workload of those who are able to remain working. As a result, both physical and psychological damages may be claimed as a result of overworking. There are also work from home risks as the result of the numerous employees that have now taken on their working responsibilities from home. Employers still have a duty of care to ensure that their employees are being provided with the proper equipment and that their physical and mental wellbeing are still being looked after as it pertains to their job.

Are Negligence Claims Covered Under the WSIB?

It is important to keep in mind that most negligence claims are covered on a “no-fault” basis under the WSIB (Workplace Safety and Insurance Board). This means that no matter who is at fault, whether the employee, the employer, or someone else, a portion of your salary will still be paid.

With the employee automatically being compensated, the employer is then shielded from any other liability – this means that the employee can’t go on to sue the employer for negligence, regardless of the work-related injury or disease suffered.

While most WSIB insurance claims are straightforward, with the employee receiving their benefits while they are recovering, and then returning to their regular work, some are more complicated. Some injured workers are denied WSIB benefits or have their benefits suddenly halted, whereas some industries are not eligible for WSIB at all. 

The following industries do not receive mandatory coverage from the WSIB:

• Banks, insurance companies, trust companies, credit card companies, and other financial institutions;
• Law firms;
• Real estate agencies;
• Business associations;
• Recreational and social clubs;
• Live-performance theatres;
• Trade unions;
• Private schools;
• Recreational and vacation camps for children;
• Travel agencies; and,
• Health clubs.

It should be noted that some of these industries may still have coverage under the WSIB if they applied for WSIB coverage by way of application. 

What Do I Do If My Employer Has Breached Their Duty of Care?

If you feel that your employer has breached their duty of care towards you which has directly resulted in an injury to your mental or physical wellbeing, we’re here to help. As we’ve stated, not all negligence claims are covered under the Workplace Safety and Insurance Board. If this is the case, you may find yourself in a situation where you’re not being adequately compensated for your injury and/or your time off. This can lead to significant financial strain on you and your family, leaving you wondering what you’re going to do next.

We at Gosai Law are here to help you navigate potential courses of action and to help you understand your rights and responsibilities as an employee. While our physical office location is currently closed, we continue to be an advocate for your case remotely. Please feel free to contact us at (905) 595-2225  or info@gosailaw.com in order to receive more information.