Changes Coming to WSIB?

Written on behalf of Peter McSherry
A grocery store representing essential workers
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We have commented previously on workers’ compensation and the present chaos of the COVID-19 crisis. As noted in that post, the Workers’ Compensation Board is not particularly employee-friendly. This may soon change, however, due to a new private members bill.

Proposed Law

The bill, which has received first reading approval in the Provincial Legislature on May 19, 2020, has received scant public attention. It is important, however, not only for what it offers in its present format, however limited, but also because it may be a guidepost for future revisions to the process of eligibility for benefits.

At the present moment, Bill 191 covers only workers for businesses which were declared as essential services under the emergency declaration law.

Bill 191 Highlights

The new law would offer protection to essential workers should they become infected with the coronavirus by making it a legal presumption that this disease was an occupational disease contracted through the course of employment. This is the essential test for eligibility for benefits. The onus would be on the employer to introduce evidence to rebut this presumption, a difficult bar to say the least.

The presumption will apply to the workers who received a positive result for COVID-19 on or after January 25, 2020, no matter when the workplace was deemed essential under the emergency legislation. Keep in mind that the list of emergency services was amended in early April to expand the original list announced in March.

The Bill also proposes to give the relevant worker a “second shot” at the claim, where it was denied before the new amendments become law.

This bill is similar in impact to the presumptive protections for cancer conditions given to firefighters, which also was first started by a private members initiative.

The Bill must still proceed through the legislative process, including a committee hearing, a second and third passing before it becomes law by royal assent. It is nonetheless a positive sign of a more reasonable approach to the WSIB claims process.

Current Law

Absent this amendment, in order to qualify for benefits, the worker must currently demonstrate that:

  1. The workplace creates a risk of infection, one which is greater than the risk to which the general public is exposed;
  2. There is satisfactory evidence of the disease.

To date, the Board has reported that it has allowed roughly 3,500 claims for benefits and some 800 have been denied.

More COVID News

The Federal Government barrier to non-essential travel to the United States has been extended to August 21, and may be extended beyond that date.

Kitchener-Waterloo will enter Stage 3 opening on July 17. With health and safety restrictions in place, most businesses will be allowed to open, There are exceptions, as listed here. Indoor gatherings will be limited to 50 attendees while the outdoor meetings are capped at 100.

If you are visiting Toronto or Ottawa in the near future, be sure to take your mask with you. Both cities have made facial coverings mandatory in publicly accessible indoor establishments, including restaurants, stores, malls, places of religious worship, libraries, art galleries, museums and the like.

Toronto is expected to enter Stage 3 in the immediate future.

All stages are to be considered temporary, and will revert back to the prior stage or worse should the statistics show further significant outbreak. California is a good example of the need for retroactive closures in this context, as all indoor dining and bars have been closed and schools will not re-open in the fall for in person classes in response to a surge in new cases.

Stay tuned for further news about the status of the emergency declaration and news about school openings in Ontario.

Get Informed, Stay Current

The law on COVID-19 is changing every day and will continue to do so, likely even more dramatically. Stay informed and be prepared. We will continue to update the all news affecting employers and employees as it develops in this space. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.