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COVID-19 Outbreaks in the Workplace – Who’s Gonna Pay?

Posted in: Claims Costs,WCB Law | Posted by Rebecca Ingram on May 25, 2021

As Alberta grapples with the impact of the 3rd wave of COVID-19 infections, there have been a rash of outbreaks in workplaces involving a large number of COVID-19 infections. Transmission, quite clearly, is happening worker to worker and exposure is occurring while they are at work but is this a work-related injury or illness? And if so, how will this affect employers who are already struggling economically to survive the pandemic? If the Alberta Workers’ Compensation Board (WCB) is going to accept claims that arise from COVID-19 outbreaks in the workplace, who will bear the brunt of the costs?

The WCB acknowledges that COVID-19 is not in itself caused by employment; however, if the work situation/circumstances put a worker at a greater risk of contracting the disease, then the claim would be acceptable. While this may seem reasonable, when put into practise the results are mind boggling. 

Based on an article in the Calgary Herald from May 17, 2021, the WCB Alberta has already accepted more the 8,000 work-related COVID-19 infection claims including 12 fatality claims and a number of claims for workers with ‘Long’ COVID that are suffering from debilitating Post-COVID-19 symptoms.

According to the WCB, they will try to gather as much information as possible on COVID-19 infection claims, including working through a series of questions with workers to try to determine exactly how, where and when they got infected.  If the WCB is not able to find any outside source of positive contact for a worker and there is a declared outbreak at the worker’s place of employment, the file would be accepted as work-related – essentially, benefit of doubt would go to the worker.

As a result of the recent workplace outbreaks, there are a large number of potential work-related COVID-19 claims that, if accepted, will have a significant impact on an employer’s experience rating. Beyond the workplace outbreaks, there are entitlement questions surrounding captive workers and workers that travel as part of their job, like truck drivers, which could drive WCB COVID-19 case counts even higher. 

Complicating matters further are issues around transmission and the origin of exposure for acceptable claims when multiple employers are involved and/or multiple employees are affected by an outbreak. How should these costs be dealt with? 

  • If that exposure happened at another place of employment, could an employer argue that costs should be transferred to that employer? 
  • If an outbreak occurs at a construction site where there are multiple contractors working at the same time, do you argue that the worker that was first diagnosed caused the outbreak and all costs should be transferred to that employer?
  • Could an employer argue that an outbreak constitutes a single incident and that a Maximum Per Incident Cost (MPIC) should be applied to all claims that result from the outbreak? 

Should claims originating during the declared states of emergency have their costs allocated to the Accident Fund? If so, should that be applicable to all acceptable WCB COVID-19 claims, not just the ones that occurred during the states of emergency? 

Even though the majority of claims may be No Time Loss (NTL) with costs under the NTL threshold or may cover minimal time loss and few medical aid costs, there are claims where a worker may have suffered severe symptoms of COVID-19 resulting in hospitalization, extended recovery periods, long term health issues and even death. The costs of these claims could be substantial.

Finally, as discussed in a previous blog post, COVID-19 has had an impact on run-of-the-mill WCB claims which have seen claim costs skyrocket in some instances. The removal of modified duties due to COVID-19 lockdowns, the lack of continuity in medical treatment, delays in medical treatment, referrals to specialists, postponed surgeries just to name a few, have contributed to the complexity of the WCB mandate to return injured workers back to work in a safe and timely manner. 

What is clear is that the sheer magnitude of WCB claims that are related to infections or that have been impacted by COVID-19 is a unique situation facing the WCB. How they manage this and what will be done to sustain the Accident Fund without crippling the economy further is yet to be fully determined. 

The WCB has not established a specific COVID-19 policy yet. For now they are relying on direction from guidelines and recommendations of existing policies that may be applicable to the acceptance, adjudication and cost allocation of claims impacted by COVID-19. Challenges and appeals of these decisions are expected in the months and possibly years to come. Sadly, either directly through individual rate calculations or indirectly through an increase in the premium base rate across all industries, every employer is going to pay a price.

For now, there are more questions than answers.

Information on how the WCB is approaching potential work-related COVID-19 infection claims can be found here. Further information for employers from the provincial WCB’s can be found as follows:

BCL Consulting Group is closely monitoring the WCB’s response to the pandemic. We are identifying claims where COVID-19 has played a role, whether it is an entitlement decision or interference in the normal course of a claim, to ensure we can respond quickly when new directives come from the WCB.

We are committed to working with the WCB to develop fair and equitable strategies for dealing with the impact that COVID-19 has had and continues to have on Alberta employers. And we are prepared to use our expertise to ensure those strategies are implemented in the best interest of our clients.  

As always, we strive to answer your questions or address your concerns to the best of our ability. If you require assistance regarding a potential or existing WCB COVID-19 claim or you wish to discuss how the WCB is dealing with COVID-19 in further detail, you can reach us directly at [email protected] , [email protected], by phone at 1-844-377-9545 or you can connect with us on Facebook, Twitter, or LinkedIn.

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