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Howard Levitt: Yes, You Can Sue Someone for Negligence if They Pass COVID on to You

posted 2 years ago

You will need to prove they were reckless in not properly protecting others from the illness.

I am receiving many client enquiries concerning the right to sue bosses, fellow workers and even health-care workers, if they contract COVID as a result of a person being unvaccinated.

The answer is that you can sue anyone for negligence who passes COVID on to you — if they were reckless in not properly protecting others from the illness and either knew or should have known they had or might have had the illness and had not taken appropriate precautions.

Here are some other workplace legal questions showing up in my inbox:

Q: An employee has refused to provide her vaccine status. What is my remedy as an employer?

A: If you are making plans for workforce distribution or location of employees based upon their vaccine status, you have a right to know, and refusal to advise you is cause for discharge as it endangers fellow employees who you also have a legal duty to protect. Likewise, if they lie about their status that is cause for dismissal without severance.

Q: I just received a warning for something I consider minor and am told that I will be fired for cause if there are any further incidents. What do you recommend?

A: Without knowing the nature of the previous discipline, and assuming that it was over something trivial as you state, the law strongly favours employees respecting issues of legal cause for discharge without severance. Unless the incident is serious and reflects on your integrity, or the employer’s reasonable confidence in your ability to work without significant future disruption, there is generally little prospect of an employer succeeding in allegations of cause for discharge, regardless of the number of previous warnings. However, to protect your position or dissuade the company from asserting cause, I would recommend you writing a letter to your employer providing your perspective on the previous incident, explaining all circumstances that minimize your personal role in whatever debacle is being alleged, and listing all your achievements, contributions and past accolades. Such a letter may not save your job, but at the very least will convince your employer that the prospect of establishing cause is ill-fated. Alleging cause may then be found to be in bad faith, with your letter as Exhibit 1, giving rise to additional damages in your lawsuit.

Q: If my case is not worth much money, is it worth proceeding?

A: If your case is worth almost nothing at all, you might want to consider using the employment standards branch to collect it. However, if it is worth much more than the minimal provisions in that Act, but not enough to justify a Superior Court Claim, you can proceed in small claims court for minimal cost and a relatively expeditious hearing. You have to waive any claim for any additional amount, so ensure you understand from counsel the actual value of your claim before waiving that through a small claims court action.

Q: I obtained a promotion but received no salary increase. What are my options?

A There is no right to a salary increase at any time, even if you have been promoted, unless you can show that you were denied the increase based on grounds in human rights legislation — race, gender, etc. If the company is not prepared to pay for your contributions, your only recourse is to find work elsewhere and use that promotion to buttress your resume in doing so.

Q: We have an employee with terrible body odour. What can we do as an employer?

A: If it is based on a medical disability, then it must be accommodated. This does not prevent you from having a conversation with the employee and suggesting changes of clothes brought to the office or other remedial measures. If the person has no such disability, and after warning them to bathe, launder and change their clothes, you can terminate their employment.

By Howard Levitt

Got a question about employment law during COVID-19? Write to Howard at [email protected].

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

THIS ARTICLE ORIGINALLY APPEARED IN THE FINANCIAL POST AND IS REPRODUCED HERE WITH PERMISSION FROM THE AUTHORS: https://financialpost.com/fp-work/howard-levitt-yes-you-can-sue-someone-for-negligence-if-they-pass-covid-on-to-you?video_autoplay=true

PHOTO BY GETTY IMAGES/ISTOCKPHOTO

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