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Keeping your dawn raid guidance current
Unannounced inspections or ‘dawn raids’ are used by antitrust authorities to obtain evidence when there are suspicions that individuals or businesses have infringed the antitrust rules.
Canada | Publication | April 7, 2020 – 10 AM ET
The Ontario Workplace Safety and Insurance Board (WSIB) has published a number of helpful resources on its website regarding the current COVID-19 outbreak. Some of the key points on reporting and benefits issues are summarized below.
In cases of workers who contract COVID-19 out of and in the course of employment, a claim for benefits may be made, which is discussed in more detail below.
As for an employer’s reporting obligations, a form 7 must be filed within three days of learning about an employee’s workplace-caused illness if he or she needs treatment from a health professional, is absent from work or earns less than regular pay as a result of a COVID-19 exposure.
Even if employees do not require treatment from a health professional, their illnesses still must be reported if they are doing modified work at no loss in pay, namely, any change in their regular job while recovering from an illness for more than seven days.
For cases of possible exposure, but where there is not yet a diagnosis or symptoms of COVID-19, the WSIB is asking that claims not be filed, instead suggesting an exposure incident form be filed through the WSIB’s Program for Exposure Incident Reporting (PEIR) or Construction Exposure Incident Reporting (CEIR) program. These are voluntary reporting programs. The WSIB has indicated that upon such voluntary disclosure, an incident number will be assigned and if the worker subsequently falls ill, the WSIB will process his or her claim more quickly. This link will take you to the necessary forms and provide the number to which completed forms may be faxed.
On March 23, the WSIB published an adjudicative approach document discussing how it will treat claims related to COVID-19. In short, it will be possible for a worker to receive benefits for COVID-19. The key to having one’s COVID-19 benefits claim granted will be demonstrating that the COVID-19 arose out of and in the course of the worker’s employment.
According to this recently published document, there are two primary factors a decision maker will consider in determining the outcome of a worker’s COVID-19 claim: firstly, whether 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, secondly, whether the WSIB is satisfied that the worker’s COVID-19 condition has been confirmed.
First, the nature of the worker’s employment
According to the adjudicative document, in determining whether the nature of the worker’s employment created an elevated risk of contracting COVID-19, the following questions should be explored:
A review of case law relating to workplace-related illnesses may also shed some light on how COVID-19 cases may be approached. The WSIB is the first line of decision making, beyond which an appeal lies to an independent tribunal, the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The following (non-exhaustive) review of past WSIAT cases shows how outcomes will largely turn on the available evidence.
First, there are number of helpful cases that confirm entitlement, including:
Likewise, a number of cases denying entitlement may also be considered, including:
Second, confirmation of COVID-19
The adjudicative document also discloses that the decision maker will consider whether the worker’s COVID-19 condition has been confirmed. The document indicates that the following questions should be considered in this analysis:
The document therefore appears to indicate that a medical diagnosis of COVID-19 will not be strictly necessary in order to grant benefits for COVID-19, although a worker should at least have his or her symptoms assessed by a medical professional in order to put forward a convincing case.
While the WSIB’s adjudicative document of March 23 confirms workers can seek benefits for COVID-19, whether or not each claim is granted or denied will turn on the particular facts of the case. As this document as well as past WSIAT jurisprudence demonstrates, not only will the worker seeking benefits have to demonstrate he or she actually contracted the disease, the worker must also convince the decision maker the disease was more likely than not contracted because of his or her particular work environment. To do so, a worker should identify a probable source of COVID-19 in his or her workplace; point to the particular aspects of his or her employment activities that place the worker at a higher risk of contracting COVID-19; and demonstrate that an opportunity for transmission of COVID-19 existed in his or her workplace via a compatible route of transmission for the disease.
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