Workers’ Compensation & Entitlement for Work-Related COVID-19

  • April 02, 2020
  • Julie Weller

On March 24, 2020, the provincial government ordered the closure of all non-essential workplaces in Ontario as a result of the 2019 Coronavirus Disease (“COVID-19”). This mandate follows a series of directions to the entire provincial community in order to “flatten the curve” and to limit the impact of COVID-19.

Employers continuing workplace operations and whose business activity does not permit workers to work from home may face major challenges in enforcing strict physical distancing (commonly, if inexactly, referred to as ‘social distancing’) measures with an accepted safe distance of six feet. These challenges are further exacerbated as some experts suggest that the COVID-19 virus can live on surfaces for several days. Many employers in essential industries, like health care providers, are not able to implement physical distancing measures and, as a result, their workers are at a higher risk for contracting and spreading COVID-19 in the workplace.

The rapid ease with which COVID-19 spreads through communities, especially those failing to react swiftly and comprehensively to the pandemic, creates an adjudicative challenge for the Workplace Safety and Insurance Board (“WSIB”) when deciding whether to grant entitlement for claims pertaining to COVID-19.

The WSIB Will Consider Entitlement For COVID-19

COVID-19 is a communicable/infectious disease — in other words, a type of occupational disease for which the Occupational Disease and Survivor Benefits Program can provide benefits.

Entitlement for COVID-19 falls under sections 15(1) and (2) of the Workplace Safety and Insurance Act, SO 1997, c 16, Sch A (“WSIA”). These sections provide for entitlement to occupational diseases that occur due to the nature of the employment in which the worker is engaged. A worker’s entitlement to benefits is adjudicated as if the occupational disease were a personal injury by accident and as if the worker’s impairment was the result of an accident.

Notwithstanding further legislative changes, communicable/infectious diseases such as COVID-19 do not qualify as Schedule 3 or 4 diseases and, therefore, no presumption of work-related causation applies. Workers will therefore be required to demonstrate that workplace exposure significantly contributed to their risk of contracting of COVID-19.

The WSIB has confirmed that workers should file claims if they believe that they have contracted COVID-19 while at work. As under normal circumstances, the WSIB will be adjudicating claims on a case-by-case basis, taking into consideration relevant facts and circumstances.

Pursuant to the Adjudicative Approach Document pertaining to COVID-19 published on March 23, 2020, the WSIB may grant entitlement where a worker establishes:

  1. The nature of the worker’s employment created a risk of contracting the disease to which the public at large is not normally exposed; and
  2. The WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.

In deciding whether to grant entitlement for a work-related COVID-19 claim, the WSIB may consider factors such as:

  • Whether the worker is/was displaying symptoms specific to COVID-19, taking into consideration the usual incubation period and whether the worker’s evidence is supported by an assessment from a registered health professional;
  • Whether the worker has/had a higher likelihood of exposure given his/her job duties;
  • Whether the worker’s co-workers were diagnosed with COVID-19 or the worker’s job duties provided an opportunity for transmission of COVID-19 in the workplace;
  • The likelihood of exposure in the worker’s community, and whether the worker followed public health physical distancing or self-isolation directives outside of the workplace; and/or
  • Information regarding the workplace, such as the work environment, work processes, job tasks, and use of personal protective equipment.

The WSIB has confirmed that it will not provide coverage for people who are symptom-free even when these people are quarantined or sent home on a precautionary basis. However, should someone asymptomatic develop symptoms or illness while on quarantine, he/she may be eligible for WSIB coverage.

It is important to note that section 124(2) of the WSIA will apply to COVID-19 claim decisions. Under this provision, the benefit of the doubt is given to the worker where it is impracticable to decide an issue when evidence for and against the issue is approximately equal in weight.   

Guidance from Past WSIAT Decisions

The Workplace Safety and Insurance Tribunal (“WSIAT”) has not published many decisions pertaining to initial entitlement for communicable/infectious diseases. The most analogous decisions found were in reference to an influenza outbreak at a nursing home in 2012.

In these decisions, the WSIAT held that entitlement for benefits under the insurance plan would be granted if the worker established, on a balance of probabilities, that workplace exposure significantly contributed to the worker’s risk of contracting the communicable/infectious disease (see Decision No. 1053/15, 2015 ONWSIAT 1867). In satisfying this threshold, the worker is not required to establish that the workplace was the only contributing risk factor.

The WSIAT may grant entitlement even in a situation where a number of significant contributing factors exist, so long as the workplace significantly contributed to the risk of contracting the disease. In Decision No 2970/16, 2017 ONWSIAT 592, the employer argued that, for entitlement to be granted, the worker must demonstrate that he/she sustained an increased risk of exposure to the communicable/infectious disease in the workplace in comparison to the risk of exposure in the community at large. In support of its argument, the employer pointed to a letter from the WSIB which stated this exact point. Despite the WSIB’s letter, the WSIAT held that  “whether workplace risk contribution is more than “beyond that faced in the community at large” is not part of the legal test used by the Tribunal to determine work-relatedness of a disease”. Instead, the WSIAT generally considers whether the workplace exposures made a significant contribution to the risk of the worker’s development of the claimed condition. The worker is therefore only required to demonstrate, on a balance of probabilities, that the workplace significantly contributed to the risk of contracting the disease.

The WSIB has similarly addressed COVID-19, stating:

For a COVID-19 claim to be allowed, evidence must show that the person’s risk of contracting the disease through their employment is greater than the risk to which the public at large is exposed and that work significantly contributed to the person’s illness. [underlining emphasis added]

This suggests that the WSIB and WSIAT may apply different thresholds when deciding whether to grant entitlement for COVID-19.The WSIB’s statement regarding COVID-19 entitlement suggests that the worker will be required to demonstrate that their risk of workplace exposure is above that which they experienced in their community. Given the community transmission of COVID-19, this threshold may be difficult for workers to meet if they do not work in front-line employment.

The WSIAT, on the other hand, may grant entitlement if the worker can establish that they likely experienced a significant risk of exposure at the workplace, even if the worker likely also experienced an elevated risk of exposure in their community. This may result in the WSIAT overturning claims that have initially been denied by the WSIB.

Practical Implications of COVID-19

As a result of the COVID-19 pandemic, the WSIB has closed its offices to the public but is continuing to provide some services. It is important that workers understand that the WSIB’s closure will not impact their loss of earnings (“LOE”) benefits. The WSIB will continue to pay all wage-loss benefits and have ensured all LOE benefits are up to date.

The WSIB has also stated that workers can cancel claim-related appointments if they are not able to attend or are uncomfortable with attending appointments. A decision to avoid an appointment will not affect entitlement to benefits or services.

At the WSIAT, all hearings from March 16, 2020, until April 3, 2020 are postponed. The WSIAT’s offices are also closed. Where feasible, the WSIAT plans to consider alternative hearing options, such as written and telephone hearings, in an effort to minimize disruptions.

Representatives for workers and employers may be permitted to pause WSIB/WSIAT appeal proceedings. On March 20, 2020, the provincial government issued an order under section 7.1 of the Emergency Management and Civil Protection Act, RSO 1990, c E.9, to suspend limitation periods and procedural time periods, subject to the discretion of the applicable court or tribunal. The extension is retroactive to March 16, 2020, and applies until the end of the present emergency.

The WSIAT has confirmed that it will accept Notice of Appeals (“NOA”) that are filed outside of the six-month time period set out in section 125(2) of the WSIA and that incomplete NOAs submitted on time will be considered to have met the statutory time limits. The WSIAT has used its discretion and requested that representatives contact the WSIAT if they are unable to meet a procedural timeline, other than initiating an appeal. The WSIB has not yet posted a similar announcement.

Subject to further instruction from the WSIB, workplace parties may want to continue to meet reporting obligations where possible and to contact the WSIB otherwise. Section 22(1) of the WSIA requires a worker to file a claim as soon as possible but no more than six months after learning that they suffer from an occupational disease. The triggers for employer reporting obligations remain the same: employers are required to file a Form 7 within three calendar days of a worker losing time or requiring health care as a result of suspected COVID-19, which is related to the workplace.

Looking Ahead

There are many aspects of the COVID-19 virus that make WSIB adjudication challenging. For example, the high transmissibility of COVID-19 and its sometimes lengthy dormancy period adds difficulty to assessing whether infection more likely arose from workplace or community exposure. The current public health recommendation is for the public to remain isolated and to forego testing if symptoms of COVID-19 remain manageable. It is unclear how the WSIB will confirm contraction for the purposes of entitlement under this recommendation and absent a confirmed COVID-19 diagnosis.

By working together to ensure that workers follow precautions both in and out of the workplace, workplace parties can decrease the likelihood of exposure while at the same time increasing the likelihood of readily identifying any source of contamination.

The COVID-19 situation is fluid and government information is rapidly developing, and it is possible that the WSIB will take further steps to address COVID-19 in the workplace. For this reason, it is important to continue monitoring the WSIB and WSIAT websites regularly. Moreover, employers and workers are encouraged to actively monitor the guidance of provincial and national health authorities, including the Ontario Ministry of Health and the Public Health Agency of Canada.

Unlike the current recommendation for Canadians’ physical spacing, the WSIA does not operate in isolation. When employers and workers are considering what actions to take as life under the COVID- 19 pandemic progresses, it is important to consider obligations and benefits under applicable labour and employment legislation, including the Occupational Health and Safety Act.

About the author

Julie Weller is an associate in Mathews Dinsdale’s Toronto office. Julie specializes in workers’ compensation, providing practical and strategic advice to Schedule 1 and Schedule 2 employers.

Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA.