On December 1, 2023, the Ontario Workplace Safety and Insurance Board’s (“WSIB”) new policy applicable to communicable illness claims – Operational Policy Manual Document No. 15-03-15, “Communicable Illnesses” (“Policy”) – became effective.

The Policy provides entitlement guidelines for communicable illness claims arising out of and in the course of a worker’s employment. For the purposes of the Policy, “communicable illness” is defined as “an illness resulting from infectious agents such as viruses, bacteria and fungi”, via either direct or indirect transmission and varying based on the specific agent.

The Policy sets the following entitlement criteria that decision-makers must consider when determining initial entitlement:

a) Whether the worker contracted a communicable illness; and
b) Whether the worker’s communicable illness arose out of and in the course of employment, in that the employment made a “significant contribution” to  contracting it.

A) Establishing that a communicable illness was contracted

Under the new Policy, the nature of the evidence required to establish that a communicable illness was contracted is fact-specific and subject to the diagnostic criteria applying to the illness claimed. However, the Policy also specifies that one or both of the following will generally be necessary to satisfy this criterion:

• Confirmatory testing of infection; and/or
• Diagnosis by a treating health professional, who is qualified to provide the diagnosis based on a clinical assessment of the worker during the period of illness.

B) Communicable illness arising out of and in the course of employment

In order to establish work-relatedness, decision-makers must be satisfied that the worker’s employment “significantly contributed” to the contracting of the illness. The Policy provides that one of the following criteria must generally be met:

• An established work-related source; or
• Increased risk due to employment, compared to the risk experienced by members of the general public in the course of typical daily activities.

The Policy provides the following factors as relevant to determining work-relatedness:

• Potential exposure to the communicable illness within and outside the worker’s employment;
• The illness’ mode of transmission;
• The duration, frequency and intensity of potential exposures;
• Any control measures implemented in the workplace; and
• Compatibility with the incubation period for the illness, with respect to time elapsed between symptom onset and a probable transmission event.

Notably, the Policy does not require identification of a specific contact source within the workplace to establish work-relatedness of the communicable illness. Rather, decision-makers are to assess the strength of the evidence linking the illness to employment on a balance of probabilities. The Policy also does not preclude entitlement on the sole basis that a worker is not immunized to the illness for which they are claiming benefits.

Loss of Earnings benefits

Where a worker meets the initial entitlement criteria, loss-of-earnings (“LOE”) benefits will generally be payable for the illness’ period of communicability. The Policy defines this period as “the time during which an infectious agent may be transferred directly or indirectly from an infected person to another person”.

During this period, benefits may be allowed even if the worker is asymptomatic or mildly symptomatic, so long as they are prevented or limited from returning to work due to their illness’ communicability.

Importantly, where a worker is exposed to communicable illness but shows no symptoms and has no confirmation of illness, and is sent home by an employer or is legally required to isolate, benefits are not payable for any time spent out of the workplace on a precautionary basis.

Reporting obligations

The reporting obligations outlined in OPM Document No. 15-01-02, “Employers’ Initial Accident-Reporting Obligations”, currently apply to communicable illness claims.

In the context of this new Policy, an obligation to report may be triggered if an employer has learned that a worker has sought health care and/or has lost time and/or pay, or has required modified duties for over seven (7) calendar days, due to a communicable illness that may be work-related.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.