April 1, 2020
On March 23, 2020 the Workplace Safety and Insurance Board (WSIB) issued a policy document outlining their approach to claims for occupational exposure to COVID-19. The policy states that, like other WSIB claims, the WSIB will adjudicate COVID-19 claims on a case-by-case basis “based on the merits and justice of the case, taking into account all of the facts and circumstances relating to the case.”
The following factors will be persuasive evidence that the worker’s employment significantly contributed to their illness:
- the nature of the work created a risk of contracting the disease to which the public at large is not normally exposed; and
- the WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.
Claims that do not meet these criteria will be nonetheless reviewed on their merit.
In determining whether the worker’s employment created an elevated risk of contracting COVID-19, adjudicators will consider several factors, including, but not limited to:
- Has a contact source to COVID-19 within the workplace been identified?
- Does the nature and location of employment activities place the worker at risk for exposure to infected persons or infectious substances?
- Was there an opportunity for transmission of COVID-19 in the workplace via a compatible route of transmission for the infectious substance?
In determining whether the worker’s COVID-19 condition has been confirmed, adjudicators will consider several factors, including, but not limited to:
- Are the incubation period, the time from the date of exposure, and the onset of the illness clinically compatible with COVID-19 that has been established to exist in the workplace?
- Has a medical diagnosis been confirmed? If not, are the worker’s symptoms clinically compatible with the symptoms produced by COVID-19? Is this supported by an assessment from a registered health professional?
Symptom-free workers will not be eligible for benefits, even when quarantined or sent home on a precautionary basis.
This policy is subject to change. The WSIB provides details as to its COVID-19 response here: https://www.wsib.ca/en/novel-coronavirus-covid-19-update.
Generally speaking, it is advisable for workers who have experienced occupational exposure that could lead to illness to file a claim with the WSIB on a timely basis whether or not they are experiencing symptoms in order to establish a record with the WSIB. Claims can be filed online here: https://eservices.wsib.on.ca/portal/server.pt/community/eform_6/209.
If you are a worker or a union with specific questions relating to your circumstances or the circumstances of a member, please feel free to contact us.
The WSIB’s stated policy is not without critics. The Ontario Network of Injured Workers Groups (ONIWG) and the Industrial Accident Victims Group of Ontario (IAVGO) are among the organizations pushing for more expansive coverage for COVID-19.
In particular, ONIWG has asked the Province to include COVID-19 among the health conditions that are strongly linked to work exposure (listed in Schedule 4 of the Regulations (O Reg 175/98: General)). This would establish an irrebuttable presumption of work relatedness for COVID-19 contracted by workers in prescribed workplaces. ONIWG argues this should apply to all workers serving the public, including healthcare, retail, and public transit operators. Under this approach, benefits would flow automatically for workers in these sectors which will maximize not only their safety and the safety of their families but also of their coworkers and the public at large.