Certain businesses to require customer proof of vaccination to guard against liability: lawyer

Ontario’s Bill 218 protects businesses from customers, but not employees, says Nainesh Kotak

Certain businesses to require customer proof of vaccination to guard against liability: lawyer

As businesses emerge from lockdown in Ontario’s Great Reopening, business-operators want to know the nature of their liability if they play host to a COVID conflagration, says Nainesh Kotak, founder of Kotak Personal Injury Law.

The province began Step 1 of the Roadmap to Reopen on June 11. Outdoor crowds and “limited indoor settings” are now permitted. Provided Ontario hits planned vaccine thresholds, Step 2 will begin July 2, “further expanding outdoor activities and resuming limited indoor services with small numbers of people and with face coverings being worn.”

After that, once between 70 and 80 per cent of adults are vaccinated with one dose and at least 25 per cent have their second, Ontario will enter Step 3. By then, access to indoor settings will be expanded, “including where there are larger numbers of people.”

With customers, businesses are largely protected from liability by Bill 218. The legislation received Royal Assent last November and protects from liability business operators and others who make a “good faith,” “honest” effort to follow public health guidelines. For a claim to be successful, the plaintiff would have to prove the COVID transmission was the result of gross negligence on the part of the business, says Kotak.

“The rationale behind the legislation was that it's going to allow businesses to reopen and not be so afraid of making mistakes,” he says. “The flip side to that is that negligent wrongdoing may not be compensable because of the really all-encompassing nature of this legislation.”

But businesses still have to worry about legal action from their employees.

“There are exemptions to Bill 218, and one is employees,” says Kotak. “So businesses are going to have to look at whether or not they're going to have mandatory vaccination policies at the place of employment.”

Without a vaccination policy, if one employee spreads COVID to another, who then spreads it to their family, the employer may be liable if causation can be demonstrated, he says.

To enforce a mandatory vaccination policy, the employer must show it is a bona fide occupational requirement. If employees are working from home, it is less likely such a requirement would be permitted by the courts. But where there is client contact and employees are working in close quarters, mandatory vaccines would be enforceable, says Kotak.

To protect employees, many businesses will also be requiring customers provide proof of vaccination, says Kotak. Especially for close-up-and-personal services such as massage therapists, dentists, hairdressers, spas and nail services.

“I've been approached by some physicians, in fact, with the question: ‘Can we tell our patients, if you're not vaccinated, you cannot come for treatment here?’”

For medical doctors, Kotak tells them that question requires guidance from the College of Physicians and Surgeons of Ontario. But this puts doctors in a dilemma, he says. Because if they cannot require vaccination due to their professional ethical obligations not to discriminate among patients, and there is a COVID outbreak in their facility, that could spark liability.

Requesting proof of vaccination would have been considered a privacy violation pre-COVID, but such has been the evolution in norms that has occurred in the last 15 months, he says.

“I think we're going to live in a different world in the sense that the norms of privacy that we felt we had before will become eroded, with the view that we're in uncharted area, where vaccinations really are the norm, and the only way to reopen again.”

Kotak also expects wide use of liability waivers, similar to those signed at ski hills and trampoline parks.

“Liability waivers already exist and are used in certain industries but it will certainly be contentious for a COVID waiver to be used and enforced.”

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