July 6, 2020
Author: Bryan Gallant
The novel coronavirus (COVID-19) pandemic has raised questions for Alberta employers as to what the Workers’ Compensation Board–Alberta (“WCB-Alberta”) requires of them when there are cases of COVID-19 within their workforce, and how WCB-Alberta manages such cases. A WCB-Alberta Employer Fact Sheet addressing many of these questions can be found here.
Under what circumstances will a worker who contracts COVID-19 qualify for WCB-Alberta benefits?
WCB-Alberta Policy 03-01: Part II – Occupational Disease states that where a worker contracts an infectious disease (such as COVID-19), that worker will be entitled to compensation if the disease was contracted as a result of their employment and the following conditions are met: (1) the nature of the employment involves sufficient exposure to the source of infection and is shown to be the cause of the condition, or (2) the nature of the employment puts the worker at greater risk than the general public of exposure to the infectious disease.
WCB-Alberta does not necessarily require medical confirmation that the worker contracted COVID-19 (such as by way of a positive test) in order to accept the claim. This is because, in many cases, persons who have exhibited symptoms of COVID-19 have never been tested for the disease. This was particularly the case early on in the pandemic. Persons with mild symptoms (not requiring hospital care) were often advised by medical professionals to simply self-isolate at home until their symptoms had fully resolved.
When are cases of COVID-19 to be reported to WCB-Alberta?
An employer must report a case of COVID-19 to WCB-Alberta where the above conditions have been met and the worker has lost time from work as a result of contracting the virus. If it cannot be shown that the nature of the worker’s employment either caused or put the worker at greater risk than the general public of contracting the infection, then WCB-Alberta will not consider the case to be work-related and it need not be reported. Nor does a case need to be reported if the worker has suffered no time loss.
If a worker has had lost time due to being sent home as a precautionary measure (i.e. to avoid infection), but does not actually contract the virus, there is no need for the employer to report this to WCB-Alberta, as without an illness the worker will have no claim.
Mere exposures to the COVID-19 virus do not need to be reported. Where a worker is exposed to the virus but does not develop symptoms and does not miss any work, the incident need not be reported to WCB-Alberta. However, the employer should still keep an internal record of any exposures, for the purposes of contract tracing if needed.
Any medical complications or further injuries that arise in the course of treating a worker for a work-related COVID-19 infection are also to be reported, as WCB-Alberta considers such treatment complications or further injuries to be also work-related.
How are WBC-Alberta claims based on COVID-19 adjudicated?
WCB-Alberta has a team that specializes in adjudicating claims based on infectious diseases (including COVID-19). When adjudicating COVID-19 claims, the team considers the particular circumstances in each case, and then applies relevant legislation and policy to those specific circumstances in order to determine whether the conditions for work-relatedness and benefit entitlement are met.
Claims likely to be accepted are those by workers who contract the virus in the course of a widespread outbreak at their place of work, or while performing a service deemed by the province to be essential and which puts them in regular contact with the general public.
Are there any circumstances in which work-relatedness will be presumed?
Sections 24(6) and 24.3(4) of the Workers’ Compensation Act, RSA 2000, c W-15 (“WCA”) and section 20 of the Workers’ Compensation Regulation 325/2002 (“WCR”) presume certain diseases and conditions to have been caused by employment in certain industries or processes, unless the contrary is proven. Those diseases and conditions are listed in the WCR’s Schedule B, Column 1, and their corresponding industries or processes presumed (through employment) to have caused them (unless the contrary is proven) are listed opposite in Column 2. To date, the COVID-19 virus does not appear in Schedule B of the WCR, and so there is no rebuttable presumption that can be applied when adjudicating COVID-19 claims in Alberta.
Interestingly, WorkSafeBC is currently proposing that diseases caused by communicable viral pathogens (including COVID-19) be added to Schedule 1 of B.C.’s Workers Compensation Act (counterpart to Schedule B of Alberta’s WCR). A discussion paper on this proposal can be found here.
If implemented, it would mean that when a worker contracts a communicable viral infection as described in the proposal (which can include COVID-19), while in the course of employment in the corresponding industry or process as described in the proposal, such infection will be presumed to be work-related and compensable, unless the contrary is proven. This would be a first in Canada.
However, the descriptions of both the disease and the corresponding industry/process in the proposal are stated rather narrowly. The viral infection in question must be the subject of a health emergency declaration or notice made under B.C. legislation, and the corresponding industry/process must pose a risk of exposure significantly greater than the risk to the public at large. That risk of exposure must also occur during the applicable emergency, and within the geographical area of that emergency.
If Alberta should ever add COVID-19 to Schedule B of the WCR, this would serve to streamline and expedite the adjudication of COVID-19 claims, as WCB-Alberta would not have to analyze similar evidence of work-relatedness in every case. It would also facilitate the acceptance of COVID-19 claims that fit within the Schedule B criteria. However, as with the WorkSafeBC proposal, it is expected that there would still need to be evidence of an increased risk of exposure to COVID-19 within the industry or process in question.
What compensation will WCB-Alberta provide when a claim based on COVID-19 is accepted?
Where a claim based on COVID-19 is accepted, WCB-Alberta will cover the costs of medical aid and any time lost due to the infection. Also, if the worker had to miss work due to requirements imposed under the Public Health Act, such time loss will be compensable, regardless of whether the worker was actually disabled by the disease.
Does an employer face any liability when a case of COVID-19 is found to be work-related?
Whenever a worker is entitled to compensation under the WCA due to a work-related accident (which can include contracting COVID-19), section 23(1) of the WCA prohibits that worker (and their dependants and employer) from suing any employer or worker covered under the WCA in respect of any resulting injury, so long as the conduct that caused the injury arose out of and in the course of employment in an industry to which the WCA applies.
In other words, a worker who suffers injury from contracting COVID-19 as a result of doing their job, and is thus eligible to receive WCB benefits, is statutorily barred from bringing legal action against their employer or co-workers and any other employers or workers alleged to have caused the injury, so long as those persons were acting within the scope of their employment in an industry regulated by the WCA.
This statutory protection even extends to employers and workers covered under the WCA who treat someone for work-related injuries (including those due to COVID-19). Where a new and distinct impairment or disease occurs as a consequence or complication of a compensable work-related injury, which WCB-Alberta Policy refers to as a “second injury”, this new impairment or disease may also be compensable if it occurs as a direct result of WCB-approved medical or rehabilitation treatment. Employers and workers who provide such treatment, and who are alleged to have caused such compensable second injuries, are also protected from legal action under section 23(1) of the WCA.
If Alberta should ever add COVID-19 to Schedule B of the WCR, in addition to facilitating the acceptance of COVID-19 claims that fit within the Schedule B criteria, it would also facilitate a corresponding protection for WCA-covered employers and workers against legal action by workers whose COVID-19 claims are successful.
WCBC-Alberta Employment Lawyers
If you would like further information regarding WCB-Alberta’s policies, processes and requirements of employers in relation to COVID-19, a member of the Carbert Waite Employment Law Group would be happy to assist you.