On March 17, 2020, Ontario Premier Doug Ford declared a state of emergency in the province to combat the spread of COVID-19. Alberta and British Columbia declared a state of emergency later that same day. As a result of these decisions, many workplaces including bars, restaurants, theatres, private schools and daycare were partially or fully closed. Similar declarations are expected in the days to come.
Beyond these mandated closings, more and more workplaces have implemented work from home policies or otherwise closed portions of their physical workplaces so that employees can limit any potential exposure to COVID-19 in the workplace.
All that being said, many employees are still attending their regular workplace and facing potential exposure to COVID-19. Employees in certain industries (healthcare, retail, food delivery, etc.) may be more vulnerable to exposure given their consistent proximity to the public. Even those employees who are no longer attending work could have been exposed to COVID-19 previously while still in their regular workplace.
Given the above, it is reasonable to ask: Does workers' compensation apply to employees who contract COVID-19 while at work?
Workers' compensation legislation in Canada provides workers with medical benefits and partial income replacement if they are injured or contract a disease in the course or as a result of their employment. The definition of "disease" as applied by Canadian workers' compensation boards has been quite broad and COVID-19 would arguably meet those standards.
The analysis of whether workers' compensation could apply to the current circumstances will largely depend on:
- the parameters of workers' compensation coverage in an employee's province of work; and
- whether there is a sufficient causal link to establish that the employee contracted COVID-19 in the course of employment.
In the current pandemic situation, it may be difficult to establish whether an employee contracted COVID-19 in the course of their employment or otherwise, unless an obvious inference can be made such as an employee working directly with individuals who have confirmed cases of COVID-19. This raises the challenging issue of how to determine whether the necessary causal link exists. Some workers' compensation regimes have made specific commentary on this issue already.
For example, Ontario's Workplace Safety and Insurance Board ("WSIB") has advised that any claims received by the WSIB with respect to COVID-19 will need to be adjudicated on a case-by-case basis, taking into consideration the facts and circumstances. The WSIB further notes that the nature of some people's work (for example, healthcare employees) may put them at greater risk of contracting the virus. This implies that these "greater risk" employees will have a stronger argument that they contracted COVID-19 in the course of employment and which may result in an entitlement to workers' compensation benefits.
Alberta's Workers' Compensation Board ("WCB") appears to be taking a similar approach and implying that certain industries/types of work will have a greater likelihood of entitlement. The WCB has published a bulletin addressing when COVID-19 will be covered. The bulletin states that individuals will be entitled to workers' compensation if:
- the nature of the employment involves significant exposure to the source of infection; and
- the nature of the employment is shown to be the cause of the condition; or
- the nature of the employment creates a greater risk of exposure for the worker.
The WCB states that it will accept claims where there are COVID-19 symptoms present, but no medical documentation that confirms a diagnosis of COVID-19, as long as the above criteria are met. The WCB also provides examples of what might constitute a work-related COVID-19 case. However, in every case, the WCB will continue to assess work-relatedness and benefit entitlement based on the specific and unique circumstances.
It should be noted that Alberta has specific reporting requirements with respect to work-related COVID-19 cases. Employers are required to report cases of COVID-19 to the WCB where a worker is at a greater risk than the general public of contracting the virus while at work, and that worker loses time from work after contracting the virus. Employers need not report cases where one staff member caught COVID-19 from a co-worker, however.
Other provinces have not provided clear guidance to date. For example, Quebec's Commission des normes, de l'équité, de la santé et de la sécurité du travail has stated only that a worker who contracted COVID-19 following an event that occurred out of or in the course of his work may be entitled to the usual benefits and services provided under the Act respecting industrial accidents and occupational diseases.
Even where provinces are silent on the issue at present, it is reasonable in our view to anticipate that these provinces will eventually take positions similar to those communicated by Ontario and Alberta. As such, it is likely that the nature and risk inherent in an individual's employment will be factors in determining their eligibility under each applicable regime.
It should also be noted that several provinces, including British Columbia and Nova Scotia, have issued notices specifying that workers' compensation is only available for work-related injury or illness and not for workers who cannot work or elect not to work for preventative or precautionary reasons, such as a quarantine situation. We expect that this restriction will apply in other provinces, as well.
Eligibility for workers' compensation for those who contract COVID-19 will be a major concern to employers as much as it is for employees. Employers should remain apprised of any new information from applicable provincial sources, particularly if they have ongoing public-facing operations requiring employees to regularly interact with the public. We will continue to provide updates as they become available.
To discuss the details of applicable workers' compensation regimes, as well as strategic options for your workplace in light of COVID-19, please contact a member of Gowling WLG's Employment, Labour & Equalities Group.