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Suing an employer for getting COVID in the workplace

Can a worker sue their employer for contracting the virus while at work?

Ever since the beginning of the pandemic, many workers were sent home to comply with social distancing rules and to help stop the spread of COVID-19 virus. 

Many of those employees have since then returned to their workplace. And while sanitizing hands and wearing a mask should in theory safeguard against the spread, many workers have wondered if the employer would be liable for putting employees’ lives at risk.

That liability carries many names. An employee can, in theory “file a lawsuit”, “pursue legal action”, or simply “sue their employer”. 

But is it possible to sue an employer, and claim damages, in the case of contracting a virus at work?

The short answer is: not really. At least not in the way we see it in movies.

How to get compensation from an employer for getting COVID?

It’s very unlikely that an employee would be able to hire a charismatic attorney to take matters to court and force their company into a million-dollar settlement, for one specific reason. That reason is called “Workplace Safety and Insurance Act, 1997

In Ontario, most businesses are covered by the Workplace Safety and Insurance Board (“WSIB”). In a case where an employee gets hurt, ill, or falls sick with COVID-19, said employee can file a claim to get compensation for workdays missed due to illness. 

WSIB covers 85% of the regular salary that the worker is entitled to. The compensation period starts the day after the sickness or injury occurred, and ends when an employee is fully recovered and can safely return to work.

In return for providing compensation, WSIB prevents workers from filing a lawsuit against an employer, as a part of collective liability insurance they offer to said workplaces. 

Legal actions are expensive, and taking an employer to court may take thousands of dollars in legal fees and months, even years, to see through. The benefit of WSIB insurance is to provide an expedited payment to those affected, instead. However, if the claim is refused, the employer is still protected by the insurance against any future lawsuit.

When can a victim of COVID take an employer to court?

The Workplace Safety and Insurance Board only applies to companies to have enrolled with WSIB’s liability program. 

Certain businesses, such as construction companies are obligated to have such insurance.

But not all businesses are obligated to enroll. In a situation where a company is too small, or doesn’t require coverage by law, a business owner may choose to enlist with the program voluntarily, to obtain the same no-fault benefits.

In a case where the workplace doesn’t have coverage, an employee might elect to pursue legal action in court. 

An example would be a situation where an employee works for a small water delivery company. While on delivery, a driver catches the virus from a colleague on the delivery shift. If it's the employer's responsibility to health and safety standards in the workplace, an employee might be able to demand compensation due to negligence. 

Similar situations apply to freelancers that have a risk of being exposed to COVID, while taking part in commercial activities. 

Because every situation is unique, it is recommended to speak to a lawyer about your unique case.

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