Tuesday, March 24, 2020

Workers' compensation and COVID-19

One of the outcomes of COVID-19 is that some workers will contract the virus at work. Of those, some will become ill and will miss work. Some will require medical treatment. Some will likely die. In theory, these workers are eligible to file a claim through the workers’ compensation system. These claims have the potential to impose huge costs on workers’ compensation systems.

One of the challenges of dealing with infectious disease claims is determining whether the disease was caused by a workplace exposure (rather than a community exposure). This challenge is particularly difficult during a pandemic, when a large percentage of workers (possibly 60-70%) will contract the illness and they might well contract the illness through non-work contact.

Alberta’s Workers’ Compensation Board (WCB) has issued some preliminary advice about COVID-19 claims [NOTE: See update below]. The crux is that the WCB will be accepting claims where COVID-19 is a “direct result of their employment.”

The WCB’s Policy 03-01 (Occupational Diseases) addresses the question of work-relatedness of infectious diseases by applying a three-part test. Infectious diseases are eligible for compensation if:

a) the nature of employment involves sufficient exposure to the source of infection, and
b) the nature of employment is shown to be the cause of the condition, or
c) the nature of employment creates an increased risk of exposure for the worker.

I think the sensible way to read these requirements is a claim must meet (a) and either (b) or (c). The case-law I quickly looked at wasn’t perfectly clear. The WCB’s fact sheet on infectious diseases suggests all three tests must be met, which can't be right given the “or” between (b) and (c).

Assuming the (a) + (b) or (c) reading of the policy is correct, I wonder a bit about the examples the WCB provides around COVID-1 claims. (Note that the WCB does flag that each claim will assessed on its merits.)

The COVID-19 Fact Sheet goes on to assert:
… if your worker is at greater risk than the general public of contracting the virus while at work, and they lose time from work after contracting the virus, report the claim to WCB.

However, if your staff is not at greater risk than the general public of contracting the infection, do not report. Examples include people who believe they caught the COVID-19 virus from a co-worker or client.
Accepting claims from health-care workers who treat COVID patients seems sensible. I’m less convinced by the analysis presented for cafeteria and grocery workers. Given the virulence of COVID-19 and the fact that grocery and cafeteria employment require workers to extensively interact with the public (who will include carriers), I would think these workers might well meet the (a) + (c) test. Basically, the workers’ employment puts them at greater risk than the general public.

It may be that the WCB is relying upon the “but-for” test here. The “but-for” test basically asks whether the work exposure was necessary for the injury to have occurred. That is to say, if not for the work, would the injury have occurred? If yes, then the work did not cause the injury.

In a pandemic, all cases of COVID-19 (including those experienced by health-care workers) could well occur without a workplace exposure. So, if the WCB applies the “but for” test to health-care workers who treat COVID-19 patients, shouldn’t they also be excluded from coverage?

It is important to recognize that the WCB is trying to provide broad advice and must adjudicate each claim on its merits. Consequently, actual claim acceptance and denial may play out differently than the examples suggest.

That said, the examples provided may cause some workers and employers not to file claims. The narrow reading of the policy evident in the examples may also shape how WCB staff apply the policy when faced with claims.

An interesting question to ask is who benefits from a narrow reading of Policy 03-01? One answer is that the WCB benefits. By restricting access to compensation, the WCB will protect its accident fund from a potentially huge number of claims (including a relatively large number of fatalities). The cost of these claims would hit at the same time as the WCB’s accident fund is likely taking a beating in markets. Such a draw on the fund might also trigger premium increases, thereby creating employer (and likely government) backlash.

I don’t mean to suggest that the WCB staff are acting like Bond villains (they are likely simply trying to adjudicate claims in circumstances of considerable ambiguity). But I do think it is worthwhile considering how organizational pressures and logics can influence how organizational actors interpret policy. And this can lead to outcomes (e.g., widespread claims denials) which sit uneasily with the purpose of workers’ compensation, which is to compensate workers for work-related injury and death.

-- Bob Barnetson

Update: So today (March 26) the WCB issued a new advice sheet to employers that removes the examples fro the March 9 sheet and adds this paragraph:
A claim is likely to be accepted if a worker contracts the illness and is performing what the province deems to be an “essential service” that puts them in regular contact with the general public. A worker will also likely be covered in the event of a widespread outbreak at their place of work.
This seems to broaden the group of workers who would likely have claims accepted, although who is an essential service has not yet been established. There are also other changes too complex to elaborate.

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