WSIB Update: Compulsory Coverage for DS Agencies Proposed by Ministry of Labour

In May 2019, the Provincial Government announced an independent review of the Province’s statutory workplace accident and injury insurance scheme, the Workplace Safety and Insurance Board (“WSIB”), to consider and recommend operational, legislative, and regulatory changes to help maintain its financial sustainability and better support workers and businesses. The results of this review were released in a Report on November 6, 2020, which includes a number of recommendations. If adopted, these recommendations could have significant implications for Developmental Services Sector (“DS Sector”) employers. We discuss this Report and these recommendations below.

General Findings

The Report provides a detailed assessment of the WSIB’s current financial and operational status and identifies a number of areas in need of reform.

Financially speaking, the WSIB is in a fairly stable state. In 2019, the WSIB eliminated the previous unfunded liability, which reached a high of $14.2 billion in 2011.

Operationally, the Report notes that the WSIB has recently undertaken several reforms, including a transition to a new employer classification and rate-setting system (replacing an older, less transparent one) and implementing technological reforms to improve efficiency.  At the same time, the Report notes that long processing times for WSIB claims remain a concern, particularly for complex claims, and that the WSIB’s current model for submitting and adjudicating claims is inefficient, costly, and difficult to use. While the WSIB’s current efforts at technological reform should help, the Report notes that there may also be the need for organizational and structural reform in order to catch up with other workplace compensation schemes across the country.

Key Findings and Recommendations Impacting the DS Sector

Significantly, the Report identifies gaps in mandatory WSIB coverage for certain industries. The WSIB currently operates under an “inclusionary” coverage model, providing coverage to industries that are explicitly identified by the WSIB. This makes the default non-coverage unless an employer type is named as covered.  The Report specifically identifies developmental service workers and residential facility workers in particular as examples of groups that are excluded from mandatory coverage without a sound basis.

The Report makes 25 recommendations, including several with a direct impact on the DS Sector.  Most importantly, the report recommends immediately moving developmental support workers and those working in residential care facilities under mandatory WSIB coverage. If adopted, this recommendation would remove current exemptions for group homes in the DS Sector, and perhaps impact other exempt classifications.  Compulsory coverage for DS workers has been proposed by legislators a number of times over the past few years (as reported on by our firm).  However,  this report may lend new impetus to reform for the sector with potentially costly consequences for agencies who are currently not registered with WSIB and whose budgets are thus structured around significantly lower accident insurance costs.

Other WSIB Updates

In addition to the release of the Report, there are additional WSIB related developments that DS agencies ought to be aware of:

  1. The Provincial Government has introduced the Workplace Safety & Insurance Amendment Act, 2020 that, if passed, would provide new economic relief to employers in response to financial pressures due to COVID-19. The background to this bill is that the average industrial wage of Ontario workers has shot up by 7.8% due to losses of low wage employment from COVID-19. This change had the potential to increase WSIB premiums significantly. However, to moderate the growth of premiums, the Government will limit growth to 2%. At the same time, however, the Government will continue to allow the maximum benefit cap for workers grow in response to this large increase in the average industrial wage, not depriving workers of those benefits.  At the start of October, the WSIB announced that it would freeze its premiums rates in 2021 in response to the COVID-19 pandemic. This continues a rate freeze during 2020 for the same reason. It remains to be seen how this interacts with the new premium cap.
  2. The WSIB continues to follow their March 23, 2020 policy for adjudicating COVID-19 claims. This policy considers there to be persuasive evidence that a COVID-19 claim is covered if both of the following are met:
    • 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
    • the WSIB is satisfied that the worker’s COVID-19 condition has been confirmed. The WSIB will still look to the particular facts of the matter in each case, however, and also provides additional factors in that policy that they will consider.
  3. Finally, WSIB coverage continues to be a key issue for unions who are aggressively challenging DS agencies that have not opted in.  Unions are raising the issue in grievances, at the bargaining table, and as a key issue in union certification campaigns.

Covid-19 will almost certainly drive up the long term cost of WSIB and, as admitted in the Report, the system remains inefficient, costly, and difficult to use.  At the same time, pressure from unions and legislators is mounting for agencies that have historically opted out to register.  As a sector, we need to clearly communicate the financial consequences of such a decision and the expectation that, should the law be changed, the Ministry would be required to fund impacted agencies to cover these new unbudgeted costs.

PooranLaw will continue to monitor legal developments related to WSIB. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.