WCB and Disability Law Update (COVID-19)

Discipline or termination for raising an occupational health and safety issue.

Many workers are concerned that employers will bring reprisals for raising COVID-19 OHS issues. However, under the Workers Compensation Act this is illegal.

Under the Workers Compensation Act if an employer discriminates (suspends, demotes, terminates, etc.) a worker for raising a health and safety issue including those related to COVID-19, then the worker can seek recourse through the WCB. These provisions are called discriminatory action complaints.

These provisions are set out in the Occupational Health and Safety Part of the Workers Compensation Act. In brief, it sets out that if an employer’s disciplinary action is even tainted by a health and safety issue than a worker can bring a complaint to the Board. If proven the Board can order any of the following actions:

• Reinstatement;
• Payment of lost wages;
• Removal of reprimand from record;
• Out of pocket expenses;
• Anything else the WCB considers necessary to secure compliance.

This process can run parallel to a grievance process. However, resolution through one process typically means further recourse cannot be pursued through the other. What is helpful about the discriminatory action process is the following:

• Timeline for filing a claim is 1 year or 60 days for failure to pay wages;
• Focused expertise from adjudicators on OHS matters;
• Free mediation process paid by the WCB;
• Broad power to order remedy similar to the jurisdiction of arbitrators.

I’ve had a fair amount of success in both mediating and running discriminatory action hearings through the WCB and WCAT. If you have any specific questions please feel free to contact me to discuss.

WCB Prevention Department and COVID-19

The WCB is divided into two halves – Compensation and Prevention. Compensation is responsible for administering benefits for injured workers. Prevention is responsible for education and enforcement of worker safety in the province.

During Covid19, the WCB has focused on educating employers to ensure compliance with occupational health and safety regulations. The specific areas being focused on are the following:

• Identifying exposure hazards and developing measures of control;
• Controlling the number of people on site;
• Prohibiting workers who are sick and those returning from outside Canada from immediate return to employment.

Generally, the WCB is looking to ensure employers are minimizing risk of the spread of COVID-19 during the pandemic. If an employer is not taking reasonable steps to instigate risk management, the WCB will take action to either education or write orders up to and including fines and shut downs.

Should an employer continue to violate safe protocols or fail to conduct reasonable assessments including JOHS committee members, consider contacting the WCB Prevention Line at 1.888.621.7233

Information for Specific Industries

The WCB has released industry specific information to assist worker safety during the COVID-19 pandemic.

The specific industries and the hyperlinks to the information are as follows:

Agriculture;
Construction;
Forestry;
Health Care;
Manufacturing;
Retail;
Transportation;

This information is helpful from both an educational perspective but also to ensure employers are maintaining their obligations during COVID-19.