Ontario: The WSIB Response to COVID-19

By Ryan Conlin - Stringer LLP

March 26, 2020

The Ontario Workplace Safety and Insurance Board (“WSIB” or the “Board”) has now issued public guidance about how the workers compensation system will operate in the pandemic.  Although the  WSIB’s offices are currently closed,  the Board recently released updated information on the management and adjudication of loss-of-earnings (LOE) claims as a result of contracting COVID-19 in the workplace.

Continuation of Current Benefits

The WSIB has confirmed that workers (including part-time workers) currently receiving wage-loss benefits will continue to do so, regardless of whether or not their workplace has shut down temporarily as a result of the COVID-19 pandemic.

However, the WSIB has announced that it will not be providing LOE benefits to entitled workers who are performing modified duties as a result of a workplace injury and are sent home as part of a shutdown of operations. If the worker was not receiving wage-loss benefits at the time of the workplace shutdown, he or she will not receive any new wage-loss benefits. This is consistent with the WSIB’s historic policy approach to paying LOE benefits during temporary shutdowns such as strikes and lockouts.

Workers who were performing modified duties at the time of the COVID-19 layoff and would not have been laid off if they were fit for their regular job may be entitled to benefits.  This means that employers that are partially shutting down facilities should make it clear in appropriate cases to injured workers that they would have been laid off even if they were fit for regular duties.

Adjudication of Benefits as a Result of Contracting COVID-19 in the Workplace

Workers will generally be entitled to benefits for COVID-19 illness arising out of and in the course of the worker’s employment. In determining the work-relatedness of a COVID-19 claim, the decision-maker will consider whether:

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.

As part of this assessment, the decision-maker will investigate the following factors:

- 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 the transmission of COVID-19 in the workplace via a compatible route of transmission for the infectious substance?
- Is 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?
- 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?

Cases will be assessed on a case-by-case basis, taking into account all relevant facts and circumstances, including any other information about the work environment, work processes, job tasks, and the use of personal protective equipment. If the above can be established, the Board will generally consider it to be persuasive evidence that the worker’s employment made a significant contribution to the worker’s illness, and as a result, allow the worker’s benefits claim. The Board will not allow benefits for workers who remain symptom-free, even when quarantined or sent home on a precautionary basis. However, should a worker develop symptoms or illness while in quarantine, they may be eligible for WSIB benefits.

WSIB Financial Relief Package for Employers

In keeping with the approach of other branches of government, the WSIB is also offering a financial relief package to all WSIB-covered businesses, allowing such businesses to deter premium reporting and payments until August 31, 2020, without penalties or interest. Click here for more information on the WSIB’s financial relief package.

Office Closures

The WSIB’s offices are currently closed to the public and are not accepting mail. Claim-related information can be uploaded online.

In addition, all in-person hearings at the Workplace Safety and Insurance Appeals Tribunal (WSIAT) scheduled from March 16, 2020 until April 1, 2020 are postponed. Where feasible, hearings will be conducted in writing or by telephone. The reception area remains closed, but the Tribunal will continue to receive forms, evidence and submissions via mail, courier or fax. Note that, in accordance with the Order made under Ontario’s Emergency Management and Civil Protection Act, the WSIB and WSIAT’s statutory appeal limitation periods have been suspended.

Stringer LLP continues to monitor the situation closely and will provide updates on new developments as they occur.