Essential workers are the heroes of the COVID-19 pandemic. Civil servants, health-care workers, cleaning staff and grocery store employees work hard, risking infection, often for little pay. Some provinces have laws to protect these people against negligence lawsuits related to COVID-19.
This may seem like a great idea. Why wouldn’t we want to protect our essential workers from lawsuits?
But such laws are problematic. They deny the sick access to compensation, eliminate an incentive to keep people safe and reward businesses for their unsafe practices.
Getting COVID-19 can mean terrible illness and long-term health effects. It may also mean lost income. There may be childcare and medical expenses. A person suffering such losses because someone was negligent would normally be able to seek compensation through the civil justice system. But because of new legal protections for essential workers and services, this avenue will no longer exist for certain victims.
Insurance can compensate
You may still worry about the essential worker who’s just doing their best in difficult circumstances. But lawsuits would almost inevitably be launched against governments or businesses, or against individuals with insurance.
An injured person will sue a restaurant, not its employee. Health-care professionals have insurance. Governments can afford to compensate those injured by their employees’ negligence. Why should victims of negligence not be able to access this insurance coverage, or government’s deep pockets, in the unlikely event that an essential worker’s carelessness causes a COVID-19 infection?
What’s more, the risk of legal liability is an incentive to keep things safe. Businesses may take just a bit more care if they know they’ll be responsible for the consequences of their or their employees’ negligence.
That doesn’t mean we should never shield essential workers or services from liability. For example, we may want to protect non-profit organizations, like homeless shelters and addiction services, that provide assistance to vulnerable groups.
It is likely difficult to maintain physical distancing and ensure mask-wearing in those environments. Given the social value of those services and how hard it would be for them to afford adequate insurance, shielding them from liability makes sense.
But even if we want to protect some essential services from lawsuits, there’s no need to protect them all.
Laws cover too many sectors
Laws in New Brunswick and British Columbia protect a vast range of industries and workers from liability. These include lawyers, meat-packing plants, civil servants, oil refinery workers, chiropractors, cannabis retail workers and long-term care facilities.
In fairness, these laws apply narrowly: actions that are contrary to public health guidance, or that go beyond carelessness, are not protected. But British Columbia has recently expanded its protections against negligence suits, and other provinces may follow suit.
In Ontario, for example, lobbyists for the long-term care industry have asked Doug Ford’s government to exempt long-term care facilities from liability. They say the industry needs protection, because of the unprecedented nature of the virus, to ensure facilities can continue to get the insurance they need to stay open and to stabilize and renew the long-term care sector.
None of these reasons justifies shielding the long-term care sector from its legal responsibilities.
Requirement to act reasonably
Negligence law will take into account the unprecedented nature of the virus. No one is held to a standard of perfection. If, despite reasonable efforts, a facility could not purchase personal protective equipment, or it was understaffed because of employee illness, it would not be held legally responsible for resulting injuries. Negligence law simply demands that you act reasonably in all the circumstances.
True, access to insurance is a real concern, but when it comes to long-term care, if the cost of insuring even a well-run facility isn’t affordable, that’s perhaps another reason to shift from private long-term care toward a public model.
And we already have limits on liability. Canadian law caps the amount someone can receive as damages for pain and suffering. This cap protects businesses and makes insurance more affordable.
Instead, there are ready alternatives to shielding essential services from liability.
Governments could insure essential services that struggle to access insurance, like universities or long-term care facilities.
Or they could provide a reserve fund for claims in excess of what insurance companies are willing to cover; the Canadian film industry is asking for this so that it can resume film production. Or governments could create a no-fault scheme, similar to Workers’ Compensation, for people injured by COVID-19.
Regardless of whether these alternatives are pursued, provinces shouldn’t prevent Canadians from seeking compensation if an essential service provider’s unreasonable acts cause COVID-19 infection. Instead, they should preserve access to the courts except in very narrow circumstances in which individuals or businesses truly need and deserve to be shielded from the consequences of their negligence.