Emerging Issues Upon Reopening: Liability, Waivers and Accommodation

As vaccination rates increase and COVID-19 cases decrease, Ontario is reopening. On Friday, July 16, 2021, the province will move into step 3 of its reopening plan. In light of this, many businesses and organizations, including Developmental Services (“DS”) sector agencies are busy developing reopening plans, policies and procedures.  In this post, we provide an overview of key health and safety obligations that effect all businesses and organizations reopening and what this means for people living with disabilities. We also highlight how the duty to accommodate under the Human Rights Code impacts these obligations. Finally, we summarize some important considerations in order to mitigate liability risks of reopening.

Key Legal Obligations – Health and Safety

DS sector agencies are subject to O-Reg 177/20 and O-Reg 121/20, which contain sector-specific legal obligations. These include limits on where an employee can work during a COVID-19 outbreak and the legal requirement that every congregate care agency follow “any guidance, advice or recommendations from the Ministry of Health or Chief Medical Officer of Health relating to COVID-19 that apply to congregate care settings.[1] DS sector agencies are also required to comply with the Health Protection and Promotion Act.[2]

The Ministry of Health recently provided updated COVID-19 Signage Questions for businesses and organizations and new digital screening tools for customers entering a business or organization.

O-Reg 364/20 Rules for Areas at Step 3

Under O-Reg 364/20, all businesses and organizations that are open, including DS sector agencies, must comply with Ontario’s Occupational Health and Safety Act (“OHSA”) which includes a general duty to take every reasonable precaution to maintain a health and safe workplace for workers.[3] Additional requirements[4] agencies must comply with are include the following:

  • Generally following the advice, recommendations and instructions of public health officials, including with respect to physical distancing (2 meters apart, unless you are in the same household), cleaning and disinfecting and screening (including the active screening protocols for workers and posting information about how others can conduct self-screening).
  • Ensuring any person in an indoor area or in a vehicle operated by a business or organization is wearing a face covering or mask covering mouth, nose and chin.
  • Capacity limits.
  • Safety plans.
  • Cleaning requirements.
  • Organized gathering limits.
  • Proper Personal Protective Equipment (“PPE”) for the person who must come within two meters of another person when the other person is not wearing a mask or face covering.

There are also individual requirements related to mask wearing and physical distancing when a person is attending at a business or organization.

It is essential that all businesses and organizations familiarize themselves with the exceptions that have been carved out regarding the mask and face covering requirements referenced above. This is important for DS sector agencies advocating for and supporting people with disabilities in residential settings and in the community and for other businesses and organizations providing goods and services to people with disabilities. Specifically, exceptions shall be made for:

  • Individuals receiving residential services and supports in a residence subject to the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act (“SIPDDA”).
  • Individuals with a medical condition that inhibits their ability to wear a mask or face covering.
  • Individuals who are unable to put or remove their mask or face covering without the assistance of another person.
  • Individuals being accommodated in accordance with the Human Rights Code.
  • Individuals temporarily removing their mask or face covering to engage in athletic/fitness activity, consumer food or drink or where it is necessary for health and safety reasons.
  • Individuals who are performing work in an area that is not accessible to members of the public and that individual is able to physically distance from others in the indoor space.

It is important to consider other legal obligations such as those under OHSA or O-Reg 299/10 Quality Assurance Measures (“QAM”) that may otherwise require agencies to enforce mask requirements in some of the scenarios listed above. Agencies should also keep in mind that although 0-Reg 364/20 does not require a person to give evidence of being entitled to an exception, agencies still have the discretion to request same, in line with general accommodation rules.

Duty to Accommodate

The duty to accommodate is enshrined in the Human Rights Code. The duty requires that businesses and organizations as employers, and as providers of goods and services accommodate a person on the basis of a protected ground, including a disability, up to the point of undue hardship. As noted above, this overarching duty, is specifically recognized in O-Reg 364/20 as part of reopening.

Businesses and organizations, including DS sector agencies, should consider their duty to accommodate when developing reopening plans, policies and procedures while balancing obligations to maintain health and safety of staff and people supported. Reopening plans and policies (and not just those related to masks/face coverings) should maintain some degree of flexibility and be based on an individualized risk assessment and a spectrum of COVID-19 precautions.

Bill 218 and Liability

Bill 218, An Act to enact the Supporting Ontario’s Recovery Act, 2020 (“Bill 218”) was enacted into law on November 20, 2020 and is intended to provide protection to individuals and organizations who continue to operate in accordance with public health guidance and their legal obligations during the COVID-19 pandemic period. It seeks to facilitate the reopening of the province while protecting individuals and businesses from being liable to another person if they are exposed to or getting infected with COVID-19. Bill 218’s protections apply when a person or organization:

  • Acted or made a good faith effort to act in accordance with:
    1. Public health guidance relating to COVID-19 that applied to the person, and
    2. Any federal, provincial, or municipal law relating to COVID-19 that applied to the person; and
  • The act or omission does not constitute gross negligence.[5]

Bill 218 also protects an organization from vicarious liability with respect to a person who was acting in accordance with the above provision.[6]

Liability to “Workers” 

It is important to note that the protections do not apply to proceedings involving employment-related personal injury or occupational disease claims brought by employees, or Workplace Safety and Insurance board proceedings or where an employee or other worker claims to have been exposed to or contracted COVID-19 in the workplace.  Therefore, it is important that DS Sector agencies ensure they have the appropriate insurance in place that covers COVID-19-related workplace illnesses and injuries. Agencies should also ensure that independent contractors and temporary agency workers also have appropriate insurance and best efforts should be made to ensure temporary agencies are deploying fully vaccinated workers to your agency.

Waivers for Service Resumption

While Bill 218 provides important protections to DS sector agencies and other businesses and organizations operating during COVID-19 and making honest efforts to implement health and safety precautions, some DS sector agencies may want to take additional precautions to minimize liability by developing liability waivers for people supported to sign. However, waivers do not negate taking additional health and safety precautions.

Liability waivers are legal contracts participants in programs such as day programs or other recreational or educational activities sign, acknowledging that they understand the risks associated with the program/activity and waiving their right to sue the program facilitator/provider for compensation in the case of injury (or death) related to their participation in the program/activity. Waivers are important legal documents that outline the risks of a program or activity and help to protect DS agencies from responsibility where their actions, omission and/or negligence cause a person to be injured. Although liability waivers are common in these circumstances, COVID-19 liability waivers are still unchartered territory, especially in the courts.

Ultimately, the validity and enforceability of COVID-19 liability waivers is strengthened by the provisions of Bill 218 so long as the waiver also contains the key elements of a valid and enforceable liability waiver, as discussed below.

DS agencies should take the time to ensure that COVID-19 liability waivers are brought to the attention of people supported and their substitute decision-makers, where applicable, before they agree to participate in the program, so that the person supported makes an informed decision about participating and what the effect of the waiver is. Agencies should also ensure people supported have the opportunity to ask questions of the agency about the waiver.

Key Features of a Valid and Enforceable Liability Waiver:

  • Clear, unambiguous language throughout the waiver so that a reasonable person would know and understand what they were signing.
  • Clear identification of risks.
  • Risks and release provisions should be clearly outlined and the signatory should be clearly alerted to those sections of a waiver (for example, include notice at the top in bold, capital letters instructing the signatory to read the waiver carefully and that it relates to waiving a person’s legal right to sue and bold risk, liability and indemnification clauses).
  • Exclusion of liability resulting from risks and injuries (specifically identifying exposure to or contraction of COVID-19) caused by negligence that is clear, and broad so as to cover a variety of circumstances related to COVID-19.
  • Format of waiver is easy to read and straightforward and the length of the waiver is kept to a minimum

Agencies and other organizations are encouraged to seek legal advice regarding reopening and the duty to accommodate as well as in developing liability waivers. For DS sector agencies, these issues are particularly important and complex in light of the unique needs and the spectrum of capacity of people supported. Special consideration should be given to consent and capacity questions when developing waivers.

We encourage you to reach out to your regular PooranLaw lawyer, or any member of our team for more information.

 1] O-Reg 177/20, sections 8 and 9.

[2] O-Reg 121/20, section 7.

[3] O-Reg 364/20, section 2(1); Occupational Health and Safet Act RSO 1990 c. O.1, section 25(2)(h).

[4] O-Reg 364/20, sections 2, 3, 3.1, 3.2, 3.3.

[5] Bill 218, section 2(1).

[6] Bill 218, section 2(8)

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.