Restrictions have eased and many mask and vaccine mandates have been lifted, but the impacts of COVID-19 in the workplace are still here, as one employer recently found out. The Ministry of Labour released the details in a Court Bulletin outlining the conviction of a farming operation for failing to isolate employees after a COVID-19 outbreak on its premises.
On May 28, 2020, the first positive case of COVID-19 was discovered on the employer's premises. Two more cases were discovered the next day and an outbreak was declared by the Haldimand Norfolk Health Unit. Between May 29 and 30, 2020, the District Health Unit conducted additional testing, which revealed a total of 196 positive COVID-19 cases out of 216 workers on the farm. Three of those workers had to be hospitalized with one eventually succumbing to the virus. An investigation revealed that the employer had failed to take any steps to isolate those infected with the virus allowing them to live in the bunkhouses on the premises in close proximity to other workers.
The employer eventually plead guilty for failing to take every precaution reasonable in the circumstances to protect workers under section 25(2)(h) of the Occupational Health and Safety Act (“OHSA”) and was fined $125,000 along with a 25% victim fine surcharge.
While this is an unfortunate and extreme case from a time prior to easy access to vaccines, it does emphasize the importance of context when it comes to OHSA obligations in the workplace. Arguably, the employer in this case had an increased duty to protect its workers given the fact that they also lived in close quarters at the worksite, and at a minimum would have been required to isolate those with confirmed COVID-19 infections. While we do not know for sure, this likely was a significant factor in determining the penalty imposed.
With access to vaccines and other PPE, it is clear that COVID-19 does not currently pose the same threat to employees as it once did. However, the mere fact that mask and vaccine mandates have been lifted in some contexts does not absolve an employer of its responsibilities under section 25(2)(h) of the OHSA. Employers should continue to assess the situation in their workplace, having regard to the type of work, interaction with clients, case counts in the community and any other relevant factors to guide decision making when it comes to health and safety in the workplace. Not only will this ensure the most appropriate measures are taken to mitigate risk to employees generally, it may also prevent transmission of illness in the workplace and keep employees on the job. It is particularly important to monitor these factors as we enter the fall, where some experts predict a possible increase in the number of COVID-19 cases generally.
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