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DRAFT POLICY RELEASED BY WSIB IN RELATION TO COMMUNICABLE DISEASES

There is no doubt that the COVID-19 Pandemic has had an enormous effect on not just individual employers, but on the very system of employment in Canada (and elsewhere in the world).  From remote work to “quiet quitting”, the landscape of employment, and employment law, has been inescapably altered.  The latest sign of this change comes from the WSIB, which has now developed – and released for consultation – a Draft Communicable Diseases Policy.

The Draft Policy is broader in its application than to just COVID-19 illness; however the WSIB’s statement made clear that this was prompted by the “tens of thousands of COVID-19 claims” that the WSIB has adjudicated over the course of the Pandemic.  According to the WSIB, the Draft Policy reflects:

• [WSIB] current practice, as this policy is not a change in direction, but rather provides detailed and clear guidance about how entitlement in communicable illness claims has been and will continue to be adjudicated.
• Examples of the types of employment settings and employment-activities that may have increased risk (e.g., hospitals, patient care).
• Feedback and questions from stakeholders throughout the COVID-19 pandemic (e.g., immunization status).

The Draft Policy addresses Entitlement Criteria in the same general way as WSIB decision-makers address other WSIB claims, requiring the establishment of:

1. The fact that the worker contracted a communicable illness;
2. That they did so in the course of employment; and
3. That the communicable illness arose out of the worker’s employment, in that the employment made a significant contribution to contracting the communicable illness.

In our view, all 3 of these criteria may be difficult to pin down with certainty in any particular case.  While the Draft Policy goes into some detail about how it will make determinations on each of the criteria, there are also so many caveats and exceptions mentioned in the Draft Policy – to say nothing of the various and varied circumstances that might exist in real life – that this does not seem a straightforward entitlement.

Nonetheless, and regardless of what revisions, additions or deletions might be applied to the Draft Policy, it appears as though WSIB-insured employers in Ontario will have a new and distinct type of claim to deal with going forward.  We will monitor the progress of this Policy, and note that the closure for feedback on this Draft Policy is March 28, 2023.  As always, if you have any questions regarding the Draft Policy, WSIB claims or other workplace issues, the team at CCPartners is ready to assist.

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