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COVID-19 Restrictions and Negligence

22nd April 2020

Looking at the recent reduction in new cases and, hearing discussions of lifting restrictions,  there is a possibility that negligence may be a business risk during COVID-19.

As social and financial pressures mount employers face a gauntlet of COVID-19 legal and ethical considerations related to opening again, but there are health, legal, and financial risks associated with these decisions.

Reductions and Restrictions

The week on week comparison in the 12th week of COVID-19 cases in B.C. showed an improvement for the 4th week in a row.

Of the 1490 cases in B.C. at the start of the week, we added 224 which is a 14% increase on the previous weeks totals, totaling 1699 confirmed cases in B.C.  A positive sign.

12 Week Summary of Week on Week New Cases

Week New Cases Fatality Cumulative Cases Case Increase
1st Week Feb 3rd 1 1 0%
2nd Week Feb 10th 3 4 300%
3rd Week Feb 17th 1 5 25%
4th Week Feb 24th 2 7 40%
5th Week Mar 2nd 1 8 14%
6th Week Mar 9th 24 1 32 300%
7th Week Mar 16th 71 3 103 222%
8th Week Mar 23rd 369 10 472 358%
9th Week Mar 30th 498 5 970 106%
10th Week Apr 6th 296 20 1266 31%
11th Week Apr 13th 224 26 1490 18%
12th Week 209 14 1699 14%

14% is slight reduction from the previous weeks 18% increase in the total cases, but B.C. is still adding around 200 cases a week. Comparatively speaking, this is still a concerning number of people in B.C. when you consider the exponential growth capability of the virus.

These are signs for organizations to be cautiously optimistic that B.C. is progressing in the right direction compared to other areas of the country, and globe.

Tracking The Curve

The curve is starting to look flatter for cumulative new cases, and is declining for weekly new cases.

I mentioned last week that without any fallout from the Easter long weekend and ongoing decreases in cases, perhaps by mid-May or June we may see  restrictions lifted in some areas of B.C.

This is looking feasible with the ongoing reductions in new cases, but brings with it risk of complacency should organizations feel less inclined to maintain social distancing, or reduce other control measures.

We all need to respect the explosive nature of the virus, and the restrictions required to operate should some of them be lifted.

Workplace Safety In A Ravaged Economy

So with some positive signs, not surprisingly, Dr. Bonnie Henry, the provinces public-health officer is contemplating what easing our restrictions might look like, and is rightly considering risk to workers in her contemplation’s.

Not surprisingly many organizations are focusing on opening up on some level, there are examples of the risks of operating without appropriate measures in place.

B.C. has business and organizations under pressure to work, along with relatively low number of cases, ongoing reductions in cases, and there is the possible easing of restrictions in the next few weeks.

While some of these are encouraging signs that we are progressing in our efforts to reduce the impact of the virus, employers must be diligent in maintaining all required measures to reduce the risk of transmission to, and among it’s employees, and the wider community.

Multiple organizations relaxing their approach could be catastrophic to our efforts to date, given the exponential growth this virus has shown, and put employees at risk.

Day of Mourning

As Dr. Henry starts to consider return to work plans for B.C. we fittingly approach this year’s annual B.C. Day of Mourning on April 28th.  This year’s events take place under dramatically different circumstances than previous ceremonies for many industries, and workplaces.

Warlito Valdez was a 47 year old health-care worker who died from COVID-19, although it appears colleagues may also have been infected, it’s not clear if the infection was transmitted in the workplace.

Dr. Denis Vincent a 62 year old North Vancouver dentist also died after attending the Vancouver Pacific Dental Conference in March.

These two examples present the very real possibility that workers may suffer serious infections if exposed to the virus, and a reminder that the virus cannot be taken lightly.

The Day of Mourning, is a day to remember as colleagues, families, and employers how last year’s 140 workplace fatalities have impacted our communities. It is also a time to renew focus on preventing these tragedies, including the prevention of deaths related to COVID-19.

Remembering Heroes

In addition to the traditional workplace incidents resulting in loss of life, this year should also pay respect to how many workers may be exposed to COVID-19 while undertaking their role in providing essential products and services, particularly our medical professionals.

All these workers are sacrificing their own health and wellness, and that of their families, and are at risk of becoming ill, or in the extreme losing their lives.  They do this to make sure we can take care of the sick, and minimize disruptions to essential services.

If and when we do ease restrictions, and see an even greater number of workers returning to the workforce, what obligations are employers under to prevent illnesses and deaths from the virus, and overloading our medical professionals, resources, and facilities?

Mounting Pressure

The COVID-19 pandemic has potential for serious illness and death in the workplace. There is no vaccine on the immediate horizon, and there is mounting economic and social pressure to resume organizational activities.

Many businesses and organizations may be looking at rising bills, and limited income.  They may not be able to afford to remain closed, or in limited operations for much longer.  However they also cannot afford another explosion of cases and harsher or longer restrictions.

The desire to get workplaces up and running as quickly, and effectively as possible must be immense for many organizations, particularly with the tantalizing potential for restrictions to be lifted in the near future.

With the many current competing priorities in any organization, health, financial, legal, professional obligations, and fundamental survival for both people and organizations, there will always be difficult decisions to be made by management in assessing these priorities.

All these considerations can be extremely complicated to navigate, and may have serious implications to operations, and human health and obviously are not to be taken lightly.

As the restrictions and challenges continue, there will be pressure to improve, generate revenue, relieve pressure, get back to “normal” and with these pressures comes risk of complacency, short cuts, and neglect of duties, obligations, and requirements.

Legal and ethical requirements further complicate the difficult decisions leadership must make, highlight potential consequences for decisions, and put additional pressure on an already tense situation.

Legal Considerations

Based on the pressures and challenges identified, there is potential for organizations to make quick decisions due to the urgency, and gravity of the current situation, these decisions may overlook significant considerations.

During the decision making phase, employers may wish to consider how they manage the following in relation to COVID-19:

  • Duty of Care
  • Potential for negligence
  • Due Diligence

As I look at whether negligence may be a business risk during COVID-19 there are a couple of questions that come to mind.

When might an employer be verging on negligent decisions? How might COVID-19 negligence be decided?  What happens if a business is negligent?

Duty of Care/Negligence

Employers have a duty of care, to provide a safe working environment for workers, and other stakeholders through the application of reasonable measures to maintain a safe place of work.

Negligence generally speaking is the failure to meet that duty of care resulting in harm, or loss to an individual.  There is a difference between common negligence and criminal negligence.

The interesting question is where significant harm to workers results in infections from work related COVID-19 transmission would the employer be found negligent?

If so, I wonder if it would it be common or criminal negligence?  It would likely depend on the severity of the harm, and loss, as well as the degree of failure to provide a safe place of work.

The difference being investigation, fines, and orders via provincial regulator vs. court assigned penal sanctions or convictions for criminal negligence.

Negligent Assessments

As scientists, government, and workplaces learn more about COVID-19 transmission, and more employers resume operations, there will be evolving understanding and assessment of what “reasonable” measures should be, questions over whether they were met, and whether negligence may really be a significant business risk during COVID-19.

There are already discussions around whether individuals, groups, or workplaces have been negligent in their management of COVID-19 control.

Precedence has been set in the U.S. for disease based transmission that breached a duty of care leading to infection, and negligence.  This precedence in Canada is also foreseeable in relation to employers being negligent in relation to COVID-19 exposures.

Negligence isn’t just about the employer.  Employee conduct may also contribute to employer negligence via vicarious liability.  Effectively an employee performing in a careless manner that exasperated COVID-19 infections, or risk could result in the employer being vicariously liable.

Pandemic Negligence

Negligence may be a business risk during COVID-19 with B.C. having low numbers of COVID-19 and the potential for restrictions to be lifted.

There may be the temptation for organizations to be complacent and become less stringent with safety measures, this could lead to outbreaks, and arguments of negligence.

Given how explosively this virus can spread, one organization failing to apply appropriate measures could be devastating.  Should such a situation occur, what would it take for a Canadian employer to be deemed negligent?

While I’m not a lawyer, nor does this constitute legal advice, some pieces to the puzzle might require evidence that:

  • A duty of care was owed in relation to the pandemic, and keeping workers safe and that this duty of care was breached
  • Reasonable care was not taken by the employer to eliminate or prevent exposure to infection
  • The employers actions directly caused harmful exposure of employees and other stakeholders, the general concern would likely be risk infection and illness
  • The employees or stakeholders suffered a degree of loss, damages, or harm directly due to the actions of the employer and actual or potential infection of COVID-19

Due Diligence

Due diligence is the obligation for an employer to take “all reasonable steps” to protect workers from harm.

This is based on what steps a person would reasonably be expected to take under the circumstances.  Taking these reasonable steps ensures an organization is duly diligent.

Using the previous example where an outbreak occurred due to an organizations failure to apply appropriate measures, what might a due diligence defense related to COVID-19 look like?

Again, keeping in mind that I’m not a lawyer, there may need to be evidence that the following took place:

  • Assessment of the degree to which COVID-19 related hazards may exist within the workplace
  • Assessment of the level of risk within with workplace including who may be infected and how
  • Communication of these hazards, and Public Health or Workplace legislation requirements
  • Compliance with relevant Public Health or Workplace legislation requirements
  • Identification, application, and communication of reasonable prevention measures to key stakeholders
  • Ensuring workers and other stakeholders (contractors, clients etc.) also comply with these measures
  • Accommodate employee needs as far as is reasonably practicable
  • Ensure individual human and safety related rights within the workplace are upheld
  • Monitor and maintain those reasonable measures
  • Assess and determine the effectiveness of the measures

Due Diligence Resources

The United Nations Development Programme has created an assessment tool to help organizations assess due diligence during the pandemic.

Worksafe BC also provide a generic checklist for due diligence.

Ethics And Pandemics

Beyond the obvious legal implications and obligations, there are ethical elements of decisions related to COVID-19, some of which may also contribute to negligence.

The Ministry of Health has considered ethical limits in relation to the duty to provide care (specifically in relation to health-care workers) with consideration to discharging healthcare workers from their duties and the risks associated with the current pandemic.

Some of these ethical considerations transcend health-care workers, and may also require employers to consider implications for other essential service providers, and operating their organizations or businesses during the pandemic.

Ethical Considerations

Ethical considerations for essential service employers and employees, and organizations operating, or planning on operating during the COVID-19 pandemic may be:

  • Where do regulatory and ethical considerations intersect, and what are the implications?
  • How does an employer understand when they obligated to stop work to prevent risk to their employee and public health and safety?
  • While provincial orders may apply in some workplaces, they do not in others
  • How do essential services navigate decisions on who works, when, and how?
  • What actions are required where protective measures are compromised, such as inadequate quality or quantity of PPE
  • When should employees exercise their rights to a safe workplace?
  • What are the short term safety and operational implications, challenges, advantages, and disadvantages of employee retention or release?
  • At what point does operating (real estate) or not operating become unethical (childcare) or not operating become unsustainable?
  • What is the organizations capacity to absorb, manage and survive significant change?
  • How will this impact the organizational and employee’s ability to succeed in the future?
  • What is the duty of care for an employer in these situations?

Organizational Accountability

Organizations are under pressure to operate, they have an ongoing duty to provide a safe place of work, and employees financial need to find or maintain work is mounting with each week of restrictions.

Under these circumstances, it’s not difficult to understand the difficult decisions some employers have, or imagine that some employers may be flirting with negligence unwittingly, or out of desperation resulting in workers at risk of exposure.

Despite the challenges, organizations are accountable to a number of stakeholders who are relying on them to make the correct legal and ethical decisions.  Safety is not less relevant during times of duress, some might argue it is exactly the opposite, that it becomes paramount.

Employees, clients, and communities local and wider may hold these organizations accountable now, or down the road.  Ultimately it is the leadership of the organization that is responsible for setting appropriate objectives and meeting these expectations during these difficult times.

This article summarizes that “Canadian businesses will be held responsible for taking all reasonable steps to minimize foreseeable COVID-19 risks” which is food for thought for leadership within various organizations to ensure they have given adequate consideration to where that risk lies.

In Summary

My post this week is really meant to explore some of the legal and ethical challenges related to COVID-19, and human health in the workplace as we move towards more organizations and businesses becoming active and restrictions begin to get lifted.

Negligence is a real risk for organizations under pressure to make decisions, without considering all the variables associated with operating during the pandemic.

Time will tell if work related COVID-19 exposures, illnesses, or deaths could find employers negligent. The current investigation into a care home in Quebec may be the first real test with a result finding common, or criminal negligence, or no case of negligence at all.

Treating COVID-19 as a potentially life threatening workplace hazard, and applying the considerations and controls that have been proposed by Public-Health Canada and provincial orders will go a long way to preventing organizations being in a situation that questions their ability to provide a duty of care, diligence, and negligence.

So as we approach the annual Day of Mourning here in B.C and remember those who have lost their lives in the workplace, let’s also remember to thank all the essential workers for putting their health and safety on the line out of necessity, and their commitment to provide a duty of care to  us during these difficult times.

Let’s also hope for another week of reductions in new cases as we approach the 14 day mark after the Easter weekend, and our 4th month living with COVID-19.

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