COVID-19

WorkSafeBC Proposes COVID-19 Related Changes to Workers Compensation Act

WorkSafeBC recently released a Discussion Paper entitled “Adding Diseases by Communicable Viral Pathogens, including COVID-19, to Schedule 1 of the Workers Compensation Act” (the “Act“). The purpose of the Discussion Paper is to provide stakeholders with the opportunity for consultation with respect to WorkSafeBC’s intent to amend Schedule 1 of the Act (formerly Schedule B) to add a new presumption for COVID-19 (and, more broadly, other coronaviruses or respiratory communicable diseases).

In general terms, if a worker has an occupational disease which is identified in Schedule 1 of the Act, and the worker was employed in the corresponding process or industry described in the Schedule, then work causation for the worker’s occupational disease is presumed unless the contrary is proved. In other words, a worker’s claim for compensation for an occupational disease covered by Schedule 1 can be accepted even though no specific evidence of work causation is produced. WorkSafeBC’s binding policy states that the Board of Directors may add a disease to Schedule 1, along with a corresponding process or industry, where scientific and medical evidence establishes there is a substantially greater incidence of a particular disease in a particular employment than there is in the general population.

The “Description of Disease” and corresponding “Description of Process or Industry” which WorkSafeBC is proposing to add to Schedule 1 read as follows:

Item Column 1

Description of Disease

Column 2

Description of 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.

 

Where

(a) there is a risk of exposure to a source or sources of infection significantly greater than 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.

As described in the Discussion Paper, COVID-19 is an infection caused by a “communicable viral pathogen”, as are H1N1 and SARS. By capturing diseases caused by “communicable viral pathogens” in Schedule 1, WorkSafeBC’s intention is to have the new presumption apply to diseases most likely to result in widespread outbreak, similar to COVID-19.

As noted above, occupational diseases are added to Schedule 1, along with a corresponding process or industry, where scientific and medical evidence establishes the basis to do so. On this point, the Discussion Paper states that, based on the limited analytic research currently available, the expert medical/scientific evidence provided to WorkSafeBC “generally conclude there is no strong evidence of a consistent association between workers in a specific occupation and a significantly greater risk of COVID-19, SARS and H1N1 infection”.

Notwithstanding this lack of a medical/scientific foundation on which to add COVID-19 (and other infections caused by communicable viral pathogens) to Schedule 1 of the Act, it appears to be the specific intention of WorkSafeBC’s Board of Directors to do so.

WorkSafeBC has expedited its normal consultation process, and has provided stakeholders until Friday, June 12, 2020 to submit any comments and feedback with respect to the Discussion Paper.

For more information on this article, please contact Brad Cocke or Alan Winter.


Note to our Readers: Information regarding COVID-19 is rapidly evolving. We are working to bring you up-to-date articles as the legal issues develop and to keep our previous posts updated. Given that the legal issues related to COVID-19 are constantly changing, if you are looking for legal advice or are dealing with an issue in relation to COVID-19, please contact your Harris lawyer or a member of our COVID-19 response team: Sari Wiens, Ilan BurkesNicole Toye or Jessica Fairbairn.

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