On April 30, 2020, WorkSafeBC announced it is moving forward with adding COVID-19 to the list of diseases for which there is a presumption of it being work-related. Employers will now have to rebut the presumption that a worker caught COVID-19 at work to have the claim denied. Addition to the list typically takes between 18-24 months, but WorkSafeBC is hoping to expedite and complete the process in 6 months. Pending approval, worker COVID-19 claims will continue to be adjudicated on a case-by-case basis.
The primary effect of the change would be that a worker’s injury claim for COVID-19 illness will be subject to a presumption that they contracted the illness “out of and in the course of employment”. Typically, the burden of providing this rests with the worker and cases are assessed on a case-by-case basis having regard to the particular facts of the case. If COVID-19 is added to the list, the presumption will apply and worker injury claims for COVID-19 will automatically be accepted without consideration of the circumstances of the particular case.
Employers will continue to have the right to challenge acceptance of the injury claim by way of review to the Review Division, but they will now bear the onus of proving that the illness was not contracted “out of and in the course of employment”. This burden may be a difficult one to prove given the highly contagious nature of COVID-19.
From a practical perspective, the change could result in sharp increases of assessment costs for workplaces with significant COVID-19 outbreaks involving multiple workers. The cost of lost wages, medical treatments and disability pensions associated with the accepted claims would be used in calculating the employer’s assessment costs for future years.
The expedited process will include consultation with external stakeholders. For more information or to discuss the preparation of a submission to WorkSafeBC on behalf of your business, please contact Michelle S. Jones or a member of Lawson Lundell LLP’s Labour and Employment Group.
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