THE EMPLOYERS' EDGE
Proposed Bill Presuming WSIB Coverage for COVID-19 Claims Quietly Passed First Reading
The Ontario government is somewhat quietly considering just the latest in a long line of legislative amendments aimed at addressing the consequences of the COVID-19 pandemic. This one, like many before it, is directed toward workers. It is a private member’s Bill that would create a presumption that worker who contracts COVID-19 is presumed to have an occupational disease for purposes of the Workplace Safety and Insurance Act.
Bill 191 has been presented by the NDP’s Member of Provincial Parliament from Niagara Falls, and was carried on first reading on May 19, 2020. The Bill proposes to add a new section to the Act, 150.1, which would apply with respect to workers who work for a business that has been listed as an essential workplace under an order made pursuant to the Emergency Management and Civil Protection Act. The material subsection of the proposed amendment reads:
(2) If a worker receives a positive test for the disease known as COVID-19, the disease is presumed to be an occupational disease that occurs due to the nature of the worker’s work, unless the contrary is shown.
If the Bill comes into law, the presumption would apply to a positive test received on or after January 25, 2020, and it would not matter when the workplace was deemed “essential” by order under the EMCPA.
How is this presumption intended to apply? Well, the amendment would mean that people who work in an essential workplace who test positive for COVID-19 are presumed to have contracted the virus at work, and are therefore presumed to be entitled to WSIB benefits. This presumption would replace the WSIB’s current treatment of COVID-19 claims which are being adjudicated on an individual basis based on whether:
- 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
The WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.
Bill 191 has only passed first reading so far, and it is not particularly clear what chances it has of being passed into law. Private members’ Bills are not typically expected to pass into law and there really has not been particular opposition to the WSIB’s current adjudication of COVID-19 claims. In fact, at the time that this blog is being written, the WSIB is reporting that it has allowed a total of 3,676 claims for benefits related to COVID-19, while less than one quarter of that amount, 828 claims, have not been allowed. 576 claims are pending.
The necessity for measures proposed by Bill 191 are quite literally open for debate. Frankly, it appears that the Bill just removes scrutiny from the WSIB process and fast-tracks benefits to workers. This is not an economic-relief type of program like the federal CERB and in all likelihood would just result in marginally more public funds being directed toward workers who make WSIB claims.
Bill 191 actually may not have much of a direct impact on employers. The WSIB is currently offering a financial relief package to all Ontario businesses to help reduce the financial burden on f the COVID-19 pandemic. The relief package, which was developed in consultation with the provincial government, is worth up to $1.9 billion and all businesses covered by WSIB workplace insurance are automatically eligible. Further, the WSIB has announced that costs associated with COVID-19 claims will be allocated on a Schedule-wide basis rather than at an employer of class level, and there will be no change in premium rates in 2020.
The Lawyers For Employers at CCPartners are available to assist businesses navigate this proposed amendment, and all of the amendments enacted address the realities of COVID-19 and its impact on workplace law. Be sure to read and subscribe to the Employers’ Edge Blog and watch or listen to the Lawyers For Employers broadcasts to stay informed and up to date on how COVID-19 is impacting workplace law or contact any of CCPartners’ lawyers for specific legal advice.