Report on stakeholder feedback on Operational Policy Manual (OPM) document 15-03-15 Communicable Illnesses

1. Introduction

From February 14 to March 28, 2023, the Workplace Safety and Insurance Board (the “WSIB”) held a public consultation on the draft communicable illnesses policy.

Thank you to everyone who submitted feedback on the consultation draft of the policy. The WSIB carefully reviewed and considered all feedback received and used it to inform revisions to the policy. This consultation summary report includes background on the policy, an overview of the consultation process, a summary of what the WSIB heard from stakeholders, and the WSIB’s responses.

2. Background

The WSIB adjudicates claims related to a wide range of communicable illnesses. It has a long history of adjudicating these claims, which spans major global outbreaks, such as SARS and H1N1, as well as the recent COVID-19 pandemic. Early in the pandemic, the WSIB published an adjudicative advice document to help guide initial entitlement decisions for COVID-19. This advice document became a vital resource for decision-makers, reinforcing the importance of clear decision-making guidance in such claims.

Drawing on lessons learned during the pandemic, the WSIB set out to develop a comprehensive communicable illnesses policy with input from its stakeholders. This policy not only builds upon well-established entitlement principles, but also reflects decision-making practices that have been applied in adjudicating a variety of communicable illness claims over the years.

The policy will support consistent, timely, and high-quality initial entitlement decisions in communicable illness claims and will offer transparency about the WSIB’s decision-making process to workers, employers, and the broader stakeholder community.

3. The consultation process

Stakeholders and the public were invited to provide written feedback on the policy’s consultation draft, which was made available on the WSIB website. The draft was also shared with the WSIB’s Scientific Advisory Table on Occupational Disease.

Note: Submissions are posted in the format they were received. If you require them in an alternate format, please contact the [email protected].

4. Summary of findings

The policy will guide initial entitlement decisions in claims related to communicable illnesses. Recognizing the important role that stakeholders play in enabling policies that are both effective and responsive, the WSIB sought stakeholder input on the consultation draft of the policy. The extensive feedback received, and the revisions made in response to it, not only underscore the importance of the policy, but also the WSIB’s commitment to developing a policy that responds to stakeholders’ concerns and recommendations.

Stakeholders generally welcomed the creation of the policy. However, finding common ground between worker groups and employers presented challenges, especially regarding community-acquired communicable illnesses like influenza. The revisions made to the policy address the feedback provided from both stakeholder groups.

Key themes that emerged from the feedback were:

• A separate policy specifically for community-acquired illnesses like COVID-19
• Simplifying the policy to ensure it is more easily understood by all workplace parties
• The evidentiary requirements to establish a worker contracted a specific communicable illness
• The appropriateness of “increased risk” to determine work-relatedness, particularly for community-acquired illnesses
• Restricting initial entitlement to specific circumstances
• The status of the policy’s appendix
• Closing the claim after resolution of the illness’ main symptoms
• The financial impacts of the policy

Below is a detailed review of these key themes and the WSIB’s response to stakeholder feedback, including a summary of changes made to the policy.

5. Detailed findings and responses

A separate policy specifically for community-acquired illnesses

Stakeholder feedback

Several stakeholders requested that the WSIB develop a separate policy specifically for community-acquired communicable illnesses such as COVID-19 and influenza.

WSIB response

In light of the ongoing impacts of the recent pandemic, the WSIB appreciates the emphasis stakeholders have placed on COVID-19 in their feedback. However, the WSIB believes that a single, comprehensive policy for communicable illnesses is the most effective approach. This approach simplifies the decision-making process and ensures that the principles applied, and factors considered, are consistent across all cases, regardless of the specific illness in question. A single principle-based policy is also more adaptable to new communicable illnesses if they emerge.

While the overarching aim of the policy is to address a wider range of communicable illnesses, it does provide detailed guidance on community-acquired illnesses like COVID-19. Revisions made to the policy will further support decision-making in these complex claims. In particular, the policy now directly addresses the standard of proof and the process of gathering and assessing evidence, which will help navigate the inherent uncertainties in these claims. The concept of “increased risk” has also been more clearly defined, both in its general application and for community-acquired illnesses. Additionally, the policy has been revised to explain the significance of factors like mode of transmission, incubation period, and control measures, which are particularly relevant for determining work-relatedness in these claims.

Simplifying the policy to ensure it is more easily understood by all workplace parties

Stakeholder feedback

Both employer and worker stakeholder groups commented on the complexity of the policy. The stakeholder feedback generally suggested that simplifying and increasing the clarity of the policy would ensure it is easier to follow by all workplace parties, regardless of their background or expertise.

WSIB response

Revisions have been made to the policy to enhance its clarity and simplicity. Recognizing the need for more straightforward guidance, the policy has been restructured and simpler language has been adopted. The policy has also been updated to reflect key entitlement principles and some sections have been supplemented with additional explanations and examples to further improve clarity.

The primary restructuring involved merging the previously separate “in the course of” and “arising out of” elements. The consultation draft addressed these elements under separate sections, intending to highlight their unique aspects. However, feedback suggested that this approach was more confusing than clarifying. A closer examination revealed significant overlap between these elements and merging them simplifies the policy.

Sections have been added to the policy on the standard of proof and gathering and assessing evidence. The inherent challenges in determining whether a worker contracted a communicable illness like influenza at work – a concern voiced by some stakeholders – highlight the importance of these sections. By clearly addressing entitlement principles like balance of probabilities and benefit of the doubt, the policy emphasizes the level of confidence a decision-maker must have in determining work-relatedness in communicable illness claims. This means the focus is on the probability that an illness is linked to employment, rather than on establishing that link with scientific precision.

To reduce ambiguity, the definition of communicable illness has been revised to clearly cover all communicable illnesses, including food, water, and soil-transmitted illnesses. Additional information has also been added to the policy to explain the significance of factors like mode of transmission, incubation period, and control measures in the context of determining work-relatedness.

The evidentiary requirements to establish a worker contracted a specific communicable illness

Stakeholder feedback

Employer and worker stakeholder groups provided a considerable amount of feedback regarding the policy’s guidance on the evidence used to determine that a worker contracted a communicable illness. The consultation draft included that, generally, a diagnosis or confirmatory testing, or both, would be required. In the absence of either, other relevant evidence could be considered if the worker provided a legitimate reason for not obtaining a test result or a diagnosis.

Employer stakeholders were generally opposed to providing exceptions. Some stakeholders commented that claims should only be adjudicated when there is both a diagnosis and positive test result.

In contrast, worker stakeholder groups wanted more flexibility in terms of the evidence used by the WSIB to establish that a worker contracted a specific communicable illness. Some worker stakeholders suggested that in all circumstances either a diagnosis or a positive test result, but not both, should always suffice. Other worker stakeholders were opposed to the requirement that a worker provide a legitimate reason for not having a diagnosis or positive test result before the WSIB will consider other relevant evidence.

WSIB response

This section of the policy has been revised in response to the feedback provided by worker and employer stakeholders. The policy maintains that the best evidence to establish whether a worker has contracted a communicable illness is confirmatory testing or a diagnosis during the period of illness. However, whether one or both are necessary will depend on the specific communicable illness and the circumstances of the case.

Diagnostic criteria can differ among communicable illnesses and the type and amount of evidence that is sufficient to make a decision on a balance of probabilities can be influenced by the circumstances of the case. For this reason, this section has been revised to indicate that the evidence to establish whether a worker contracted a communicable illness may vary depending on these factors. For example, if there is a widespread outbreak of norovirus at a workplace, a worker with symptoms consistent with this illness may be diagnosed on the presence of the symptoms alone. On the other hand, establishing that a worker has contracted Legionnaire’s disease may require signs of pneumonia and a positive diagnostic test, such as a urine test.

The policy has also been updated to remove the requirement that a worker provide a legitimate reason for why the WSIB should adjudicate a claim in the absence of either a positive test result or a diagnosis. The WSIB recognizes that decision-makers should have the ability to consider all available relevant evidence.

Addressing the concerns raised by stakeholders about the definitive confirmation of a communicable illness, it is important to note that decision-makers must always be satisfied, on a balance of probabilities, that the available evidence supports that the worker contracted the specified communicable illness. Moreover, in accordance with the “five-point check system”, an allowable claim must have proof of accident. In examining proof of accident, decision-makers can consider any delay in seeking healthcare. Accordingly, the policy has been updated to include a section to address this consideration as well as a reference to policy 11-01-01, Adjudicative Process.

The appropriateness of “increased risk” to determine work-relatedness

Stakeholder feedback

Several worker groups, along with some employer stakeholders, raised concerns about the consultation draft’s use of “increased risk” as a key determinant in communicable illness claims. The primary concern raised by stakeholders is that “increased risk” is inconsistent with the significant contribution test.

WSIB response

This section of the policy has been revised to more clearly explain how the WSIB determines work-relatedness in communicable illness claims. It now clarifies that a worker’s employment will, generally, significantly contribute to their injury if there is an established work-related source of their infection or if there is an increased risk of contracting the communicable illness due to their employment.

As noted above, a new section has also been added to the policy about gathering and assessing evidence, emphasizing that in all cases evidence from both employment and non-employment contexts is relevant to evaluate the potential sources of the infection.

If there is no evidence of an established work-related source, decision-makers can assess communicable illness claims based on whether the worker’s employment exposed them to a greater risk of contracting the illness than the general public. In these claims, “increased risk” assists decision-makers in evaluating other evidence supporting work-relatedness. The updated policy clarifies that evidence of increased risk must make it probable, not just possible, that the worker’s employment was a significant contributing factor. Therefore, if the evidence does not support that there is a sufficiently increased risk, or if there is stronger evidence that the infection was contracted outside of employment, the illness may be determined to be non-work-related.

The “Community-acquired communicable illnesses” section has also been revised to improve clarity on determining work-relatedness in this context. The language that a worker is not entitled to benefits unless their employment increased their risk “in some additional way” has been removed. It is further clarified that simply having more contacts due to one’s employment, on its own, is too speculative to establish that it is more probable than not that the worker’s employment significantly contributed to their contracting of the illness.

Restricting entitlement to specific circumstances

Stakeholder feedback

Several employer submissions recommended that the policy restrict entitlement to an exhaustive list of very specific circumstances. In particular, stakeholders recommended that entitlement be limited to circumstances where:

• there is a declaration of a public health emergency or a confirmed outbreak in a place of work
• a communicable illness is contracted in a remote or confined workspace, or
• the communicable illness is not commonly transmitted in the community

It seems that this recommendation is grounded in the belief that short of these scenarios, WSIB decision-makers will be unable to determine with certainty that the communicable illness was acquired in the workplace.

WSIB response

The WSIB acknowledges that determining entitlement for communicable illnesses, especially for illnesses that are prevalent in non-work settings, presents unique challenges for decision-makers. However, to limit the policy in accordance with the above circumstances would be a marked departure from the WSIB’s current approach in determining entitlement by significantly raising the evidentiary threshold beyond a balance of probabilities – a threshold used to determine entitlement in all claims.

The status of the policy’s appendix

Stakeholder feedback

The draft version of the policy included an appendix with key characteristics of a sample of communicable illnesses that occur in Ontario. While some feedback suggested that the inclusion of such an appendix may be potentially useful, both worker and employer stakeholders expressed concerns about the accuracy and currency of the information contained in the appendix. Other feedback recommended that the WSIB remove the appendix.

WSIB response

The WSIB has decided to remove the appendix from the policy. The information in the appendix was drawn from sources such as Public Health Ontario and the Public Health Agency of Canada. While this information was current when the appendix was drafted, the WSIB recognizes that information, especially pertaining to evolving infectious agents like SARS-CoV-2 (COVID-19), can rapidly change. This poses the risk of the appendix becoming outdated before timely updates can be made.

WSIB decision-makers use up-to-date scientific information when adjudicating a claim. Therefore, the appendix will not be included in the policy and instead decision-makers will use current information from authoritative sources to adjudicate communicable illness claims.

Closing the claim after resolution of main symptoms

Stakeholder feedback

Several employers provided feedback recommending that the WSIB “close” any communicable illness claims once a worker’s “main symptoms” have resolved.

WSIB response

The policy does not change the WSIB’s existing approach in determining the duration of a worker’s entitlement to benefits along with any existing return-to-work obligations.

Entitlement to benefits will continue as long as a worker is impaired as a result of their injury. This includes entitlement to benefits as a result of secondary conditions that are causally linked to the work-related injury. Similarly, parties’ return-to-work obligations are no different for injuries that stem from a communicable illness. Employers are expected to provide, and workers are expected to return to, suitable and available work.

The financial impacts of the policy

Stakeholder feedback

Many employer stakeholders provided feedback regarding the impact that communicable illness claims will have on employer costs as a result of the policy. Stakeholders also expressed concerns about having to shoulder claim costs beyond the duration of the public health emergency during which those costs were incurred.

WSIB response

The WSIB has a long history of adjudicating communicable illness claims, including complex community-acquired communicable illnesses (e.g., influenza) and claims resulting from global outbreaks. The policy does not expand the scope of communicable illnesses for which initial entitlement is considered and, as a result, it will not expand the scope of the claim costs that are allowed.

Issues beyond the scope of the policy

A number of issues in stakeholders’ input were beyond the scope of the policy. The following out-of-scope issues were common:

• Collectivization of costs: Some stakeholders requested that the WSIB consider a collectivization of costs within Schedule 1 for widespread community-acquired communicable illnesses (e.g., COVID-19). It is worth noting that certain cost relief measures were implemented during the pandemic. However, these measures have since been phased out.
• Initial accident reporting: Some employer stakeholders had comments about employers’ initial accident reporting obligations as they relate to communicable illnesses, including requests for additional guidance. The policy does not change any existing accident reporting requirements and employers are expected to report injuries in accordance with the existing requirements. For more information on an employer’s reporting obligations, please see 15-01-02, Employers' Initial Accident-Reporting Obligations.