In August the B.C. government implemented changes to the Workers Compensation Act through Bill 23, which received Royal Assent on August 14, 2020. Several notable changes were introduced; one of these changes widened the "Occupational Disease" framework to capture COVID-19 infection in certain circumstances.
Workers Compensation Act
Section 238 now reads:
(1) Subject to subsection (2), a regulation of the Board under a compensation provision must specify the date on which the regulation is to come into force, which date must be at least 90 days after its deposit under the Regulations Act.
(2) The Board may specify a date that is less than 90 days after the date of deposit as the effective date of a regulation made under section 138 (1) in relation to an occupational disease that is an infection caused by a communicable viral pathogen.
This change removes the requirement for a minimum of 90 days between deposit and effective date, where an occupational disease is caused by a communicable viral pathogen. This allows for fast-tracking access to benefits if a worker contracts COVID-19 in the workplace.
Schedule 1 now includes the following under "Presumption of Occupational Disease Related to Specific Process or Industry":
20 Infection that is:
(1) caused by communicable viral pathogens, and
(2) the subject of one or more of the following:
(a) notice given under section 52 (2) of the Public Health Act;
(b) a state of emergency declared under section 9 (1) of the Emergency Program Act;
(c) a state of local emergency declared under section 12 (1) of the Emergency Program Act;
(d) an emergency declared under section 173 of the Vancouver Charter.
(a) there is a risk of exposure to a source or sources of infection significantly greater than that to the public at large,
(b) the risk of exposure occurs during the applicable notice or emergency under column 1, and
(c) the risk of exposure occurs within the geographical area of the applicable notice or emergency under column 1.
This addition means that COVID-19 infection may be presumed to be an occupational disease if the above circumstances are met.
Practice Directive #C4-1 (Adjudication of Contagious Occupational Diseases)
A concurrent amendment to WorkSafeBC's Practice Directive #C4-1 was issued on August 20, 2020. This directive provides additional guidance on when COVID-19 infection may be considered an occupational disease and therefore compensable.
Practice Directive #C4-1 references the presumption in Schedule 1 and further clarifies that if those requirements are met, the disease is presumed to be caused by the worker's employment, unless the contrary is proved.
Appendix "A" of the directive (added in August and October 2009) deals with adjudication of H1N1 flu claims. Given the parallel situation vis-à-vis COVID-19, this appendix is useful in predicting the considerations that WorkSafeBC will apply to COVID-19 claims.
To summarize, for the claim to be accepted as compensable, workers would have to establish the requirements under Schedule 1 (e.g. the risk of exposure to COVID-19 in the workplace was far higher than that to the public at large). The COVID-19 infection is then presumed an occupational disease. To defeat this presumption, it would have to be established that:
- The nature of the worker's employment did not
substantially increase the risk of contracting COVID-19 compared to
the public at large;
- The worker does not have COVID-19 (i.e. quarantine as a preventative measure does not qualify); or
- COVID-19 was not caused by something in the nature of the worker's employment.
Implications for Employers
There are potential downstream consequences of the new presumption being applied to render COVID-19 infection an occupational disease. More claims across an industry or class would result in higher premiums.
Given the prevalence of COVID-19 risk in the public and the difficulty in tracing the source of infections, employers face the risk that workers who contract COVID-19 outside the workplace (where the employer has no control over precautions or protocols) could nevertheless become potential WorkSafeBC claims.
Employers should be aware of a higher onus to establish safe protocols at the workplace in relation to COVID-19, to decrease the "risk differential" between their workplace and the public at large, as far as possible.
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.