In Ontario last year, at least 17 deaths and 400 illnesses were attributed to the WNV. People infected with the virus may take up to 3 to 15 days to exhibit signs of infection after being bitten by an infected mosquito. Once bitten, individuals can exhibit a range of reactions, from exhibiting no signs, to exhibiting mild flu-like symptoms and, in rare cases, inflammation of the brain or spinal cord. Thus far, research indicates that approximately 4 out of 5 people bitten by an infected mosquito will not exhibit any external signs of illness.
Many regional municipalities and cities have placed excellent information concerning the WNV on their respective web sites. Many municipalities are also larviciding with Methoprene or Bti in storm sewers and catch basins. Larviciding is the use of pesticides to control the mosquito larvae population.
If companies can be sued for their coffee being too hot or for serving hamburgers and French fries without warning customers that consumption could lead to obesity, it is possible that organizations may face the risk of lawsuit if they are negligent in dealing with WNV. In fact, it has already been reported that a number of the people who became ill from WNV last year are considering a class-action law suit against the Ontario Government. In the United States, we are aware of a case where four railroad workers sued their employer after contracting lyme disease from tick bites. The judge found the railroad had breached its duty to provide a safe workplace by negligently failing to undertake a comprehensive anti-tick program, which would involve spraying and inspecting work sites. In that case, the railroad workers were awarded $565,000 (U.S.) in damages.
In Ontario, employers owe a duty of care to their employees, as well as to the public at large. Notable examples are recent court cases which have found companies liable for injury and damages caused by employees who drank excessively at company-sponsored events. Consequently, existing legal principles suggest that employers who fail to establish reasonable practices concerning employee exposure to WNV or if they are negligent in implementing those practices, may be vulnerable to civil liability. However, does this mean employers should do away with company picnics, or sponsorship of the firm’s softball team? We think not. Does it mean that proper education, awareness and precautions should go into the planning of all outdoor activities (and work)? Absolutely.
Whether there will be a flurry of litigation flowing from WNV is uncertain. It should be noted that many Ontario employees are covered by workers’ compentation legislation and cannot lodge civil suits against their employers for work-related injuries or illness. However, if a lawsuit is begun, overcoming the legal test for causation (an important element in any negligence-based lawsuit) will not be easy. The fact that it may take anywhere from 3 to 15 days after being bitten to exhibit signs of infection will make it difficult to establish whether the employee was bitten on the job, at home or elsewhere. It will also be difficult to prove that the employee would not have contracted WNV anyway, despite the lack of employer precautions. Nevertheless, this does not mean that companies should hesitate to take proactive steps to help reduce the risk of exposure for employees. In fact, as described below, certain employment-related statutes may very well require employers to take those steps.
Under the Ontario Occupational Health and Safety Act (OHSA), an employer has a duty to provide a safe work environment for its workers. If it doesn’t, it can be prosecuted and incur significant fines. The OHSA outlines a number of specific employer duties required to provide a safe work environment:
- a duty to instruct, inform, and supervise workers to protect their health or safety;
- a duty to take every precaution reasonable in the circumstances for the protection of a worker; and
- a duty to ensure workers use all safety equipment, devices and clothing.
Workers also have corresponding duties, such as the duty to use or wear the equipment, protective devices or clothing that are required by the employer to be used or worn. Workers also have a duty to report any dangers or unsafe situations and a right to refuse unsafe work. For a worker to refuse work, he or she must have reason to believe that the workplace or work poses a danger to him or herself or another worker.
Taking proactive measures, such as supplying outdoor workers with insect repellant with DEET, instructing them on proper attire, or providing them with uniforms that are light-coloured with long sleeves and pants, will go a long way towards meeting an employer’s OH&S obligations. Discussing the issue with the joint health and safety committee and implementing its recommendations may avoid potential work refusals by employees. Educating your workforce and making them aware of certain facts, for instance, that the virus is not spread by person-to-person contact, like touching, coughing, sneezing or drinking from the same cup, may alleviate uneasiness and concern in the workplace should a co-worker be diagnosed with the virus.
In Ontario, many employees are covered by workers’ compensation legislation, which precludes civil law suits against their employers for work-related injuries or illnesses. However, if an employee does become ill, as a result of contracting WNV on the job, the possibility of a workers’ compensation claim arises. In fact, the Workplace Safety and Insurance Board has a specific policy (03-02-08) which ensures that workers who are injured or become ill as a result of an insect bite or other specified natural perils while working are entitled to coverage.
Unlike a civil suit in which causation could prove to be a difficult undertaking, the workers’ compensation legislation in Ontario contains a statutory presumption that assists in establishing entitlement.
Employers should also be aware of a recent change to Ontario employment standards legislation allowing emergency leave. Many employers have short and long-term disability plans that would apply if an employee becomes ill and misses work as a result of developing WNV. However, if employees do not have access to such plans, they are entitled to unpaid job-protected emergency leave for up to 10 days in each calendar year. Individuals working for companies that regularly employ 50 or more employees may take emergency leave in the case of personal illness, injury, medical emergency or the death of certain relatives.
Employers should also be award that if one of their employees is unfortunate enough to contract the virus, either on or off the job, and develops medical disabilities as a result, an employer has a duty to accommodate that employee to the point of undue hardship.
Accommodation may result in changes to job duties or changes to other terms and conditions of work, and will vary according to the person’s medical needs. Jurisprudence indicates that the “undue hardship” threshold is a high standard that can potentially require significant costs to be borne by the employer.
While it is unrealistic to think that mosquitoes or their unwelcomed bites can be completely eliminated, employers should be thinking of ways to protect their workers from West Nile exposure. The following are some measures worth considering:
- Educate and inform your employees about the WNV. Let both your employees and customers know what specific steps your company has taken to help reduce exposure. Take the opportunity in your company newsletter or safety meetings to pass along the information that can be found at the web sites of Health Canada, Ontario’s Ministry of Health and Long Term Care and the various Regional Municipalities.
- Identify workers that may be at greater risk of exposure to the virus. Discuss ways to reduce the risk with the joint health and safety committee or other safety representatives.
- Discuss whether regular inspection of the workplace premises is appropriate to ensure that proper housekeeping and lawn maintenance, as it relates to standing water is being done. Do not forget to check the roof of the building, drainage ditches and areas where outside inventory and machinery is kept. On construction sites, holes, depressions, low-lying areas that remain unattended for periods of time can easily collect standing water and become prime breeding grounds.
- Make inquiries to find out if your local municipality is larviciding in the catch basins or storm sewers on or near your company’s property.
- If you run a golf course with water hazards, or have ponds on your property, test the water to ensure mosquito larvae are not present. If larvae are detected, arrangements should be made to have a larvicide applied.
- If your plant or warehouse operation keeps doors open in the summer to help with ventilation and air flow, think of installing screen doors and repair screens that are torn.
There may be a myriad of other ways to help protect your valuable workforce, not to mention reduce the prospect of expensive civil, health and safety and workers compensation liability. The key is that employers must turn their minds to the issue. Employers should take reasonable steps now to help ensure that WNV does not take a bite out of the bottom line this summer.
Reprinted with permission from: Notabene, published by Heenen Blaikie LLP, 416-360-6336. Written by John Lewis and Tim Lawson.
