The National Basketball Association’s COVID Protocol and the Duty to Maintain a Safe Workplace

By David Doorey, York University

The National Basketball Association just released its COVID protocols to teams that explained what will happen regarding unvaccinated players this season.   The question I have is whether this protocol satisfies the obligation imposed on the Toronto Raptors, the NBA, and MLSE to take all reasonable precautions to protect employees at games at Scotiabank Arena in downtown Toronto.

The NBA’s memo describes a bunch of rules that will apply to unvaccinated players, such as distance requirements from other players during meals and meetings, BUT DURING GAMES THEY WILL BE BREATHING AND SWEATING ALL OVER THEIR TEAMMATES, THE OPPOSING PLAYERS, AND THE REFS, AND VIRTUALLY ANYONE ELSE SITTING AT COURT SIDE.  Obviously they will not be wearing masks while they are playing.

The federal government granted a “national interest exemption” to the NBA to permit teams to cross into Canada, even players who are not vaccinated.  However, unless I am missing something, that exemption doesn’t override provincial occupational health and safety legislation.

The Ontario Occupational Health and Safety Act applies to work performed at the Scotiabank Arena, including work in the form of a professional basketball game.  Section 25 of that legislation imposes a long list of obligations on employers to maintain safe workplaces to take “every precaution reasonable in the circumstances for the protection of a worker”.  Raptors players and staff, along with all the people who work in the arena in various capacities are “workers” employed I assume by MLSE and/or the Toronto Raptors.  The OHS also imposes obligation on building owners to maintain safe conditions.

Therefore, we have to ask, is an employer satisfying its statutory obligations by permitting unvaccinated and unmasked  athletes to breath heavy all over their employees for several hours in an enclosed building?

Presumably, MLSE, the Raptors, and/or the NBA are resting their argument that they have “taken all reasonable precautions to protect workers” on the requirement for unvaccinated players to obtain a negative COVID test before entering the arena. In other words, as long as the unvaccinated player “passes” a COVID test, they should be free to breath and spit all over other workers in the workplace.  This strikes me as a somewhat controversial position.  I wonder if that type of argument would work in a factory or restaurant?

What do you think?  Does imposing a requirement for an unvaccinated person to obtain a negative COVID test as a condition of entering a workplace satisfy the OHS requirement to take “every reasonable precaution” to protect workers when the person will be required to breath heavily into the faces of other workers and neither the unvaccinated person or the other workers will be wearing masks?

What other information might you want to know in order to make your assessment?