Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Is there a duty to disclose COVID-19?

Susan Kootnekoff is a Kelowna barrister solicitor and a member of the B.C. and Alberta Bar

In March, 2020, concerns began to mount over covid-19. We heard that certain group gatherings resulted in outbreaks of the virus. Some of these events involved health care professionals.

An Alberta outbreak was traced to an Edmonton curling bonspiel. More than 50 physicians attended it. Ten days later it was unclear whether any of those in attendance were still practicing or interacting with patients.

Also around that time, a dental conference in Vancouver was connected to dozens of people who contracted the virus across Canada. This conference was attended by approximately 15,000 people.

Soon afterward, a dentist who attended the conference passed away.

Thankfully, patients were notified.

Physicians are now largely restricting their practices to consulting with patients by telephone, in an attempt to reduce the virus’ spread.

If someone contracts the virus, though, must he or she disclose this?

Maybe.

An analogy may be found in cases involving people with other infectious conditions, such as human immunodeficiency viruses (HIV). There are cases in which people with HIV were intimate with others but did not disclose their HIV-positive status or take adequate precautions. The result? Criminal assault.

A person who is aware he or she has an infectious condition that could harm another person may have a duty to disclose the condition. Without disclosure, the other person is unable to consent or take action to protect themselves. In these circumstances, and particularly if serious harm could result, there is likely a legal duty to disclose that one has the condition.

In addition to possible criminal sanctions, failing to disclose could in some circumstances also give rise to potential civil liability to the victim.

Employees who remain working and are diagnosed with covid-19 ought to inform their employer if the employee had been near other employees or the public. Privacy can be requested, and should be respected by the employer.

Disclosing a covid-19 diagnosis allows the employer to assess the situation and consider what further steps, if any, it ought to take to adequately safeguard the health and safety of its staff, and to reduce public spread of the virus to customers and others.

Although the numbers of people who actually have covid-19 appear to remain relatively small, if you are one of those select few, it may well be wise to disclose this fact to those with whom you have been in contact, and those who may in the future come within your proximity.

Failing to disclose that you have covid-19 could result in unnecessarily spreading the virus. It could also have legal implications, particularly if you are in close proximity with those at high risk of covid related complications. Disclosing that you have covid, and keeping evidence that you did so, is likely a wise move.

This is a slightly modified version of an article that is appearing in the Kelowna Capital News and other online publications on or about May 2, 2020. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.

To report a typo, email:
newstips@kelownacapnews.com
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