The Coronavirus pandemic has added a layer of worry for average employers who are struggling to keep their businesses open. Not only are employers faced with having to keep their operations financially afloat, they also have to think about the health and safety of those in their employ beyond what they used to in the past.
While it has always been a legal duty to maintain the health and safety of employees across all industries, typically some industries found it to be more of a live issue than others. Indeed, in such industries executive personal liability as it concerns the health and safety of employees has always been part of the job. Thus, for instance, in construction most employers are live to the daily reality that managers could be held personally responsible in the event of a workplace accident or non-compliance with strict health and safety requirements.
Now, due to the Coronavirus pandemic, this reality has come to the forefront of most business owners regardless of the nature of the business, including those where conventional day-to-day health and safety concerns were not meaningfully at play in the past. Recently, this has become even more pressing due to the passing of Regulation 82/2020 (“Regulation”) by the Ontario government under the Emergency Management and Civil Protections Act specifically as a result of the COVID-19 pandemic.
The Regulation extends liability statutorily not only to business organizations but to certain individual actors within these organizations. The Regulation states that, the “person responsible for a place of business that is open shall ensure that the business operates in accordance with all applicable laws, including the Occupational Health and Safety Act and the regulations made under it.”
The Regulation also sets out that the person “responsible for a place of business that is open shall operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.”
There is a fundamental legal premise in the law: a corporation is a separate legal entity with its own rights and obligations. This means that absent specific circumstances, individuals in supervisory and executive roles will not be held liable for the deeds of the company. Normally, the “corporate veil” will only be “pierced” in the event the law deems it appropriate to attach personal liability to the actual person committing (or omitting to commit) the act.
Although personal liability within a business organization is not a novel concept, the Regulation makes it a point to attach personal responsibility to individual actors of managerial and executive rank in the interest of safety due to circumstances arising out of the COVID-19 pandemic. It is, therefore, advisable for persons “responsible for a place of business” such as managers and executives to remind themselves of the need to remain abreast of recommended safety protocols in workplaces under their supervision. If called upon, those responsible would have to show that they have taken reasonable steps and exercised due diligence in the provision of a safe and healthy work environment.