Workers' Compensation in Alberta and COVID-1902-Apr-20
By McLennan Ross Labour & Employment Team
While dealing with all of the immediate challenges posed by the current COVID-19 health crisis, many employers may also be facing workers’ compensation challenges.
Coronavirus infections are continuing to grow in Alberta’s communities. As a result, many employers who currently plan on continuing to operate, may face WCB claims by workers who are concerned about exposure to COVID-19 at the workplace.
In addition, employers who are seeing a slow down or complete suspension of their operations need to address the question of what will happen when workers with workers’ compensation claims find themselves subject to layoffs or terminations. In such circumstances, employers may see increased claims costs, translating into increased WCB premiums in the future.
The Alberta Workers’ Compensation Board has provided some broad guidelines outlining their current direction in respect of COVID-19 related claims management. We summarize these guidelines here and comment on best practices for employers dealing with workers’ compensation claims that are impacted by COVID-19.
COVERAGE FOR COVID-19 CLAIMS
The WCB continues to apply a general threshold test to assess whether or not to extend benefits coverage for workplace injuries. To be covered, the injury or illness has to “arise out of, or occur in the course of employment”. The WCB appears to be taking a cautious approach to COVID-19 in the workplace. It has indicated that “[m]ost instances of COVID-19 are not work-related and do not need to be reported to WCB-Alberta”.
However, there are specific circumstances in which coverage may be extended that employers need to be aware of. Workers who contract COVID-19 will be covered by the WCB if:
- the nature of employment involved sufficient exposure to the source of the infection; and
- the nature of employment is shown to be the cause of the condition, or the nature of employment creates a greater risk of exposure for the worker.
Each case will be assessed on its own merits. However, the WCB has indicated that it expects claims to be more likely to be successful if the employee contracts COVID-19:
- while performing what the province deems to be an “essential service” that puts them in regular contact with the general public; or
- due to a “widespread” (term used by WCB) outbreak at their place of work.
As a result, employers who qualify as an “essential service” need to be vigilant in taking appropriate safeguards to prevent the spread of COVID-19 in the workplace. Essential services employers should ensure they maintain complete records of all their protocols, polices, and similar measures aimed at minimizing the spread of COVID-19 in the workplace. Similarly, employers should maintain an up-to-date protocol on how to address an “outbreak” or positive COVID-19 diagnosis in the workplace (for further information in this regard, please see our article “What to do When an Employee Tests Positive for COVID-19”). Maintaining thorough protocols will ensure employers minimize the potential spread of COVID-19 in the workplace to be able to properly address related WCB claims.
Employers also need to be aware that the current COVID-19 crisis could lead to an increase in psychological injury WCB claims. Employers should therefore be proactive and attempt to reduce stressors related to working during this health crisis as best as they can.
The Alberta WCB has provided guidance to employers in respect of what COVID-19 related incidents are reportable to the WCB.
As a starting point, employers do not need to report all COVID-19 exposures in the workplace to the WCB. Only time loss claims need to be reported to the WCB. This is true even where the employer is in the acute health care field or has workers that are at a greater risk than the general public in respect of workplace-exposure to the virus. If a worker is exposed to the virus at work but develops no symptoms, there is no requirement to report.
Similarly, the mere fact that a worker believes that they have contracted the virus from a co-worker does not translate into a reporting requirement for an employer. The WCB cautions that coronaviruses can be caught through contacts in the community, at home, or at work. Not every positive diagnosis translates into a reportable work-related claim.
When should you report?
The WCB explains that employers should report a case of COVID-19 to the WCB if the worker:
- is at a greater risk than the general public of contracting COVID-19 while at work (e.g. their work requires regular contact with the general public or there is a widespread outbreak at the workplace); and
- has lost time away from work after contracting the virus.
The WCB has indicated that it intends to ensure that workers will not suffer any loss of benefits due to work disruptions. This will impact the claims experience of employers who have workers on modified duties due to a workplace injury and who may stop receiving earnings due to shutdowns, layoffs, or terminations as a result of COVID-19.
For example, an employer lays off a worker who was on modified work due to a workplace injury. If the employer stops paying compensation to that worker (which would be the typical result of the layoff) the WCB will provide wage replacement benefits to the worker. These wage replacement benefits may now be awarded as Total Temporary Disability (“TTD”) benefits due to s. 56(14) of the Workers’ Compensation Act which states that if a worker on modified work is subsequently terminated or the work is withdrawn by the employer, the WCB will pay TTD benefits until the worker is capable of other suitable employment. The effect of this may be significant WCB claims cost for the employer in respect of that worker’s claim. Another possible outcome (depending on the experience of other companies in the employer’s industry group) may be increased WCB premiums being assessed in the future.
The WCB is encouraging employers to contact their claims managers if they are concerned or have questions in respect of claims costs related to loss of modified work. Employers should also remember that they have the ability to request a review of any WCB decision that they disagree with. The Appeals Commission for Alberta Workers’ Compensation has, in the past, disagreed with the approach to award TTD benefits to workers that lose modified work where they are not “totally disabled”. It remains to be seen whether they will take a different approach in respect of COVID-19 related modified work losses.
The team at McLennan Ross LLP would be pleased to assist employers with any questions or issues related to workers’ compensation.
 For further information, go to https://www.wcb.ab.ca/assets/pdfs/employers/EFS_COVID-19.pdf