Ontario’s Workplace Safety & Insurance Board (WSIB) has recently formalized its adjudicative approach related to COVID-19, including information related to claims of potential exposure incidents at work. The WSIB has provided additional information on what this decision-making process will look like through its recently published Adjudicative Approach document.
The document begins by reiterating earlier FAQ postings that explain that workers are entitled to benefits for instances of a diagnosis of COVID-19 which has arisen out of, and in the course of their employment. Furthermore, the WSIB explains that while the nature of some jobs places workers at greater risk of contracting COVID-19, claims made to the WSIB will nevertheless be adjudicated on a case-by-case basis. Thus, entitlement decisions will take into consideration the unique facts and circumstances of the case as required by the WSIA Benefit of Doubt provision (S. 119(2)) and the WSIB Merits and Justice Policy (#11-01-03).
As a means of determining whether a COVID-19 claim is work-related, the decision-maker will assess whether:
- the nature of the worker’s employment created a risk of contracting COVID-19 that the public at large was not normally exposed to; and
- the WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.
If the two conditions above are established, they will be considered persuasive evidence that the worker’s employment contributed significantly to the worker’s illness. However, claims which do not meet the conditions will be reviewed on their own merit, having regard to the circumstances of each case.
Evidence and Factors to Investigate when Determining Entitlement
In determining entitlement, the WSIB’s Adjudicative Approach document provides a non-exhaustive list of factors which should be assessed.
- With regards to whether the nature of the worker’s employment created an increased risk of contracting COVID-19, factors to investigate include:
- Whether a contact source to COVID-19 has been identified within the workplace
- Whether the nature and location of employment activities place the worker at risk for exposure to infected persons or infectious substances.
- Whether there was an opportunity for transmission of COVID-19 in the workplace via a compatible route of transmission for in infectious substance.
- With regards to whether the worker’s COVID-19 condition has been confirmed, factors to investigate include:
- Are the incubation period, the time from the date of exposure and the onset of illness, clinically compatible with COVID-19 that has been established to exist in the workplace?
- Whether a medical diagnosis has been confirmed. If it has not, are the worker’s symptoms clinically compatible with the symptoms compatible with the symptoms produced by COVID-19? Is this supported by an assessment from a registered health professional?
Depending on each case, each factor may not be necessary to investigate, and other factors may be identified
The Weighing of Evidence
In considering whether the contracting of the virus was work-related, the key issue will be whether the worker’s employment duties or requirements were a significant contributing factor in contracting COVID-19.
Again, claims will be reviewed with regard to the circumstances of each case. As well, when assessing the level of risk to the worker and the work-relatedness of the claim, the document provides that the decision-maker should consider information gathered as part of the assessment of the factors above, as well as any other information that may have an impact on the decision, including information related to the work environment, work processes, job tasks, and use of personal protective equipment.
The Workplace Safety and Insurance Act does not cover workers who are symptom-free, even when they are quarantined or sent home as a precaution. However, a symptom-free worker who develops symptoms or illness while quarantined may be eligible for WSIB benefits.
Reporting Claims and Exposure
For individuals who contracted COVID-19 while at work (meaning they have a diagnosis or symptoms of COVID-19), the WSIB instructs that they may file a claim to determine if they are eligible for WSIB coverage.
For individuals who believe they were exposed to COVID-19 while at work, but who are not ill at this time (meaning they do not have a diagnosis or symptoms of COVID-19), they are instructed to not file a claim.
The WSIB, however, advises that workplace parties an voluntarily file an exposure incident form through the WSIB’s Program for Exposure Incident Reporting (PEIR) or Construction Exposure Incident Reporting (CEIR) program (specifically for the construction sector).
These programs are not new, rather they were instituted to provide the opportunity for workplace parties to register exposures that had a long latency disease potential. This created a historical record for the worker which could be retrieved in future if an injury / illness developed. This remains a voluntary reporting program whereby each occurrence will be assigned an incident number. If the individual becomes ill in the future, the record can be retrieved to assist the WSIB in its adjudication. It is not clear at this time that the COVID-19 situation meets with the intended purpose of the PEIR or CEIR programs, or why the WSIB has identified this in its recent posting.
We will continue to update our clients with information as soon as it becomes available. If you have any questions about this topic, or other COVID-19 related questions, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.