The WSIB has recently released a draft policy for coverage for communicable illnesses. While they have previously had made decisions in this regard, the policy is not necessarily a change in direction, but provides clear guidance on how entitlement in communicable illness claims has been and will be adjudicated.
The policy outlines the entitlement guidelines for claims related to communicable illnesses for workers. A communicable illness is defined as an illness caused by a specific infectious agent that is transmitted from person to person or animal to person; either directly or indirectly. Â To determine initial entitlement to benefits, the WSIB decision-maker must determine whether the worker:
- contracted a communicable illness;
- whether they contracted it while in the course of employment; and
- whether the employment made a significant contribution to contracting the illness.
The immunization status of the worker will not be used to deny benefits.
To establish that a worker has or had a specific communicable illness, laboratory confirmation of current infection or a diagnosis by a qualified health professional based on a clinical assessment during the period of illness is generally necessary. However, if the worker has a legitimate reason for not seeking healthcare or laboratory testing during the illness, a claim may still be adjudicated in the absence of laboratory or clinical evidence indicating the existence of a current infection.
In order to determine that the communicable illness arose out of employment, the decision maker will have to determine that the worker was exposed to and contracted the communicable illness while at the workplace or during working hours, or performing a work-related duty or an activity reasonable incidental to employment. Â This will involve a variety of factors that for the purpose of this post, I will not get into.
More interesting is the requirement to meet the third criteria which will likely be the threshold mechanism for avoiding claims from employees who are sick. In particular the considerations that will need to be addressed are:
- the employment placed the worker at an increased risk (i.e., increased likelihood) of contracting the communicable illness as compared to the risk experienced by the general public during ordinary or routine activities of daily living; and
- the communicable illness was contracted by the worker from exposure that occurred in the course of their employment as a result of the identifiable increase in risk.
The policy itself, indicates that in order to meet the threshold of increased risk the following factors will be considered:
- the rate of the communicable illness is significantly higher in the worker’s place of work than in the general population (e.g., widespread outbreak in the workplace, treatment or care of populations with a significantly higher rate of the illness, or travel to a region with a significantly higher rate of the illness), and/or
- the worker’s employment activities create opportunities for exposure to and transmission of the communicable in excess of the opportunities associated with ordinary or routine activities of daily living.
In general, it would appear that the increased risk would be a difficult threshold to meet, unless you are a worker in a hospital or some other setting where you would be exposed to sick individuals on a daily basis. Further, the policy specifically accounts for those illnesses that generally occur within the population day to day. It specifically mentions, having a cold, influenza and Covid-19 as types of illnesses that would not be covered by the plan. An exception that is provided is a health care professional who contracts an illness due to providing care.
While employers certainly should be aware of the changes in policy over communicable illnesses as outlined above, given the threshold tests available to qualify, it is likely that few workplaces will meet the thresholds that would allow employees to make a valid claim.
This blog post was written by Travis Ujjainwalla, a member of our Employment Law team. He can be reached at 613-566-2060 or at travis.ujjainwalla@mannlawyers.com.
