The workers' compensation system in Canada is a no-fault insurance system that provides employees who become injured or ill at the workplace with compensation from a statutorily established accident fund. Most employers in Canada participate in this system either because they are obligated by legislation to do so, or because they can "opt in" in certain jurisdictions. This system exists in the provinces and territories, but does not exist at the federal level. Federally regulated employers can also choose to "opt in" to a province's or territory's workers' compensation system. Workers' compensation systems replace the right of employees to sue their employers, co-workers or others for losses arising from such accidents.
Employer contributions to a government fund for workers' compensation coverage are generally statutorily mandated. Contribution amounts vary and are dependent on factors such as the total amount of salary and wages paid by the company to its employees, the employer's "experience rating," which depends on its accident history, and the nature of the employer's business. There are limited exclusions for workers' compensation coverage.
In response to the COVID-19 crisis, a number of jurisdictions across Canada have made changes to their workers' compensation legislation, which include enacting financial relief measures for employers in the form of special payment rules, and updating the mechanisms for assessing workers' compensation claims. We review such changes below.
Financial Relief Measures
The provinces listed below have enacted workers' compensation financial relief measures for employers in response to the COVID-19 crisis.
All private-sector employers will have their 2020 workers' compensation premiums deferred to 2021. In 2021, small and medium-sized private-sector employers will have 50% of their 2020 premiums waived.
Employers that report payroll and make payments on a quarterly basis can defer payments until June 30, 2020 without penalty. Employers that report payroll and make payments on an annual basis are not required to pay 2020 premiums until March 2021.
Premium payments are deferred until the end of May and non-payment penalties and interest will not be charged until October.
Newfoundland & Labrador
Businesses may defer WorkplaceNL employer assessment payments without penalty and without interest until June 30, 2020. WorkplaceNL provides no-fault workplace injury insurance to employers and workers across Newfoundland and Labrador.
Businesses are permitted to defer Workplace Safety & Insurance Board (WSIB) premium reporting and payments until August 31, 2020. No interest will accrue on outstanding premium payments for Schedule 1 businesses and no penalties will be charged during this six-month deferral period. Schedule 2 account balances will not accrue debit interest.
COVID-19 Claim Assessments
The Workers' Compensation Board (WCB) of Alberta published guidelines specifying that a COVID-19 claim is to be treated as work-related and therefore compensable. Policy 03-01: Part II – Occupational Disease, which predates the COVID-19 pandemic, provides that when a worker contracts an infectious disease (e.g., COVID-19) as a direct result of the duties of their employment, they are entitled to compensation if the following conditions are met:
- The nature of employment involves sufficient exposure to the
source of infection, and,
- The nature of employment is shown to be the cause of the condition, or
- The nature of employment creates a greater risk of exposure for the worker.
While claims are adjudicated on a case-by-case basis, the guidelines state that a claim is likely to be accepted if a worker contracts the illness and is performing what the province deems to be an "essential service" that puts them in regular contact with the general public. As with other diseases covered under Policy 03-01, the WCB plans to determine in each case whether exposure to COVID-19 happened in the course of employment and due to an employment hazard.
A revised version of British Columbia's Workers Compensation Act came into force on April 6, 2020. Although no substantive changes were made to the provisions relating to workers' compensation, employer premiums, or occupational health and safety, they were reorganized "so specific laws are easier to find" and the language of the Act was modernized to make it "easier to read and understand."
WorkSafe BC also published guidelines instructing employers to follow orders from the Provincial Health Officer and to take proactive steps to prevent the spread of COVID-19 in the workplace; examples of such steps are to identify exposure hazards and to prohibit sick workers from coming to work.
The WCB of Manitoba has not created or amended legislation in response to the COVID-19 pandemic. It will evaluate COVID-19 claims in the same manner that it evaluates other injury claims.
For a COVID-19 claim to be accepted, the WCB must determine that the worker contracted the virus as a result of an exposure arising out of and in the course of employment. In order to make this determination, the WCB looks at factors such as the worker's employment activities and symptoms, and whether they have been diagnosed with COVID-19.
In New Brunswick, in accordance with Policy 21-109: Conditions for Entitlement – Infectious Diseases, workers' compensation is available for a work-related injury or illness, however it is not provided to workers who withdraw from work for preventive reasons.
Claims submitted for a COVID-19 virus infection contracted through a work-related exposure are adjudicated on a case-by-case basis. For a claim to be accepted, evidence must demonstrate that the infection arose out of and in the course of employment, and that the risk of contracting the disease through employment is greater than the risk of contracting it through day-to-day living.
Newfoundland & Labrador
The Workplace Health, Safety & Compensation Commission of Newfoundland and Labrador continues to adjudicate new claims, including those related to COVID-19, but has not enacted any new laws or regulations pertaining to the virus.
In Nova Scotia, the WCB is processing and reviewing COVID-19 claims on a case-by-case basis. As set out in the Workers' Compensation Act (WCA), remuneration is available for work-related injury or illness, including where workers contract an infectious disease (such as COVID-19) during the course of their employment.
The WCA does not provide coverage for workers who cannot work due to quarantine or self-isolation, or workers who were sent home on a precautionary basis.
On March 23, 2020, Ontario's WSIB published an "adjudicative approach document" outlining its approach to COVID-19 claims, which are considered on a case-by-case basis. The WSIB considers 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 whether the worker's COVID-19 condition has been confirmed. Accordingly, for a claim to succeed a worker must show an exceptional risk associated with the specific workplace and its hazards.
In its adjudicative approach document, the WSIB also identifies a number of factors related to the nature of work and the employee's condition that may determine the merit of a claim. Regarding the nature of work, the WSIB will consider whether a contact source of COVID-19 can be identified within the workplace, whether the type of employment activities placed the worker at extra risk, and whether there was an opportunity for transmission within the workplace. Regarding the specific condition of the employee, considerations will include whether a medical diagnosis has been confirmed or, in the alternative, whether the timeline of the case is clinically compatible with COVID-19 existing in the workplace.
The document also specifies that there is no coverage for workers who are symptom-free even when quarantined or sent home on a precautionary basis. However, should a symptom-free worker develop symptoms or illness while in quarantine, they may be eligible for WSIB benefits.
Prince Edward Island
Prince Edward Island has not changed its workers' compensation laws, but has reiterated that for COVID-19 claims, the same procedure will be followed as for other claims under Conditions for Entitlement POL-71 and Occupational Disease POL-65.
If a worker contracts COVID-19 that may be a result of work, they should report it to the WCB to determine if they are eligible for compensation benefits. To have a claim accepted for COVID-19, all of the following conditions must be met:
- There is medical confirmation that the worker has COVID-19,
- The worker has been exposed to COVID-19 at work, and
- The exposure is confirmed to be work-related (it arose out of and in the course of their employment).
COVID-19 claims in Quebec are dealt with in the usual course by the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST). The CNESST's guidelines state that workers who become infected with COVID-19 during the course of their employment may be entitled to the usual benefits and services that are provided for industrial accidents and occupational diseases.
As with other employment injuries, a worker seeking compensation because they became infected with COVID-19 in the course of their employment must fill out the Worker's Claim form and send it to the CNESST together with a medical certificate. The worker must demonstrate that they came into contact with the virus through or in the course of their work, and this connection "must be demonstrated in a conclusive manner."
Pursuant to the WCB's policy POL 02/2010, Injuries – Communicable Disease and its recent publications, the merit of a COVID-19 claim in Saskatchewan will be adjudicated on a case-by-case basis and treated in accordance with existing policy.
There must exist a confirmed link between the illness and the workplace. Specifically, a successful claim requires that:
- There is confirmed exposure to the disease in the workplace,
- The time period that the illness is contracted is in close proximity to the confirmed workplace exposure, and
- The nature of the employment creates a greater risk of exposure for the worker than to the general population.
Bottom Line for Employers
Employers with operations in Canada are encouraged to become familiar with the workers' compensation financial relief measures that have been made available in many jurisdictions in response to the COVID-19 crisis. Furthermore, although workers' compensation claims are made by employees rather than employers, employers are encouraged to become familiar with the assessment procedures for workers' compensation claims related to COVID-19.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.