Updated May 1, 2020
All organizations have had to respond to the COVID-19 Pandemic, and the Workplace Safety & Insurance Board (WSIB) is certainly among them. This post provides a summary of the updates that the WSIB has been providing to its participants.
Will COVID-19 Affect Premium Rates?
The WSIB has stated that the costs of COVID-19 related claims will not be allocated at the level of single employers or single classes of employers. Instead, the costs will be spread across each Schedule, and that there will be no premium rate change in 2020. That ensures that the burden of COVID-19 claims experienced by businesses that remain open will be spread across all WSIB employers.
WSIB Financial Relief Update
The Workplace Safety & Insurance Board has recently announced financial relief for employers in response to the COVID-19 pandemic.[1]
The WSIB is allowing both Schedule 1 and Schedule 2 businesses to defer their premium reporting and payments interest-free and without penalty until August 31, 2020, regardless of whether they report and pay monthly, quarterly, or annually based on their insurable earnings.
For employers who pay monthly, they can defer their March 31st payment onwards until their August 31st payment. For employers who pay quarterly, they can defer their April 30th and July 31st payments. For employers who pay annually, they can defer their April 30th payment.
The above deferrals are automatic, and you do not need to do anything to be able to defer the reporting or payments. You can also report and pay as per your business’ prior schedule if you’d prefer.
Reporting can be continue to be done online through the WSIB’s online services or through email at employeraccounts@wsib.on.ca. Payments can be made through the methods listed on the WSIB website under “Does my business have to participate in the financial relief package?”[2]
The WSIB has not yet stated what effect, if any, deferral will have on premium rates for the remainder of the year. They have committed to continue assessing their response and providing further relevant information on how payments will be made and how rates will be set moving forward.
How COVID-19 Claims Will Be Adjudicated?
The WSIB has released guidance on how it will be adjudicating claims of workplace-related COVID-19.[3]
The WSIB has stated that it will be considering COVID-19 to be covered by the insurance plan when it arises out of and in the course of employment.
The success or failure of each COVID-19 claim will depend on the facts. The key question will be whether the worker’s duties or requirements were a key contributing factor in the worker contracting COVID-19. The WSIB has stated that the claim will likely be successful on this point if the person was exposed to a higher risk of COVID-19 than normal due to their work and if the COVID-19 diagnosis is confirmed to the WSIB’s satisfaction.
In considering whether the person was exposed to a higher risk, the WSIB will look to whether:
- There was an identified contact source for COVID-19 in the workplace;
- The nature and location of employment activities risked the worker’s exposure to infected persons or substances; and
- There was a compatible route of transmission at work for the infectious substance?
In considering whether the worker’s COVID-19 case has been confirmed, the WSIB will look to whether:
- The medical facts and timeline are clinically consistent with exposure in the workplace, and
- Whether the diagnosis has been confirmed or the symptoms are compatible with COVID-19.
These factors need not all be looked at or applied. The factors are a guide the decision maker in assessing the facts. The decision maker can look to other factors too.
If the worker cannot meet these two requirements, they may still be able to make a claim out depending on the facts. It ultimately depends on what the decision-maker thinks about the situation, and if they think it is likely that COVID-19 arose from and in the course of employment.
Ultimately, if you have transmission of COVID-19 in the workplace, it is likely that workers will be able to make WSIB claims if they become ill.
However, asymptomatic employees will not be entitled to benefits, even if they must quarantine or self-isolate. They may become eligible later if they develop symptoms.
What are the WSIB Reporting Requirements for COVID-19 infection, exposure and testing?
If an employee becomes ill with COVID-19 that may be connected to the workplace (even if you ultimately believe that it is not), you will have to adhere to your reporting requirements to the WSIB.
We have also recently been informed by the WSIB that it will require employers to report when employees are exposed in the workplace and subsequently must undergo testing for COVID-19 (which they consider to be a form of healthcare). This will be required whether the employee has symptoms or not and whether they ultimately test negative or not (though a negative test would prevent any COVID-19 claim from being successful). Given this new information, the most prudent course for employers is to notify the WSIB in these circumstances.
Pooranlaw will continue to monitor developments on when the duty to report arises and provide further updates if and when they become available.
The deadline for reporting to the WSIB after the duty arises is three (3) calendar days to complete a Form 7, and seven (7) business days for the WSIB to receive it.
The WSIB has stated that employers must make all reasonable efforts to meet this deadline. However, they will use their discretion when appropriate to avoid unfairly penalizing employers who cannot meet the deadline because of the state of emergency.
Note as well that both employers and employees must notify the WSIB within ten (10) calendar days of any material changes in circumstance. If an employer or an employee is prevented from doing so by the state of emergency, the WSIB’s discretion will again apply. Material changes would include anything affecting the employee’s claim or the employer’s WSIB obligations. For example, having an ill employee test negative for COVID-19 would be material and likely must be reported.
You can also voluntarily report possible exposures using the Exposure Incident Reporting program before symptoms emerge (as can employees).
Other WSIB COVID-19 News
At present, the WSIB has issued a number of additional bulletins relating to their services during the COVID-19 pandemic:
- They will continue paying all wage-loss benefits and processing new claims. Payment of claims will continue even if a workplace shuts down.
- The WSIB’s offices will be closed to the public at this time, and they will not be accepting any mail or deliveries. However, the WSIB remains accessible by phone or online services, and they will continue to accept faxed materials. They will be prioritizing calls about health care and wage-loss benefits, meaning that there may be longer than usual wait times on phone calls for other services. The WSIB can be reached by phone from 7:30 a.m. until 5 p.m. Monday to Friday at 1-800-387-0750.
- All scheduled WSIB information sessions and meetings related to their Health and Safety and Excellence program have been cancelled.
If you have a question about WSIB, you can contact our firm’s team of experts (info@pooranlaw.com) or the WSIB themselves.
[1] https://www.wsib.ca/en/financialrelief
[2] See Note 1 above.
[3] https://www.wsib.ca/sites/default/files/2020-03/adjudicativeapproachnovelcoronavirus.pdf
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.
