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June 3, 2020

WSIA Update: Bill 191 to Create Rebuttable Presumption that COVID-19 Positive Test Caused by Essential Workplace Exposure

Authors Brandin O'Connor and Domenica Moran

On May 19, 2020, Bill 191 – An Act to Amend the Workplace Safety and Insurance Act, 1997 with respect to presumptions in connection with COVID-19 for workers in essential businesses (“Bill 191”) was introduced in the Ontario Legislature.  Although it is a Private Member’s Bill proposed by the Official Opposition, it passed first reading.

Bill 191 proposes to create a statutory rebuttable presumption under the Workplace Safety Insurance Act, 1997 (“WSIA”) that a positive COVID-19 diagnosis for workers in essential businesses is an occupational disease that occurs due to the nature of the worker’s work. 

For this rebuttable presumption to apply, the worker’s positive COVID-19 diagnosis must have been received on or after January 25, 2020 and the business must be listed as an essential business in an order made under the Emergency Management and Civil Protection Act.

This presumption – that a worker who tests positive for COVID-19 has an occupational disease that was caused by a workplace exposure – means the worker no longer has the burden to prove that they contracted COVID-19 in the workplace.  The burden of proof is instead shifted to the employer to prove the worker did not contract COVID-19 as a result of a workplace exposure.

Bill 191 will also allow workers whose COVID-19 claims have been denied by the Workplace Safety and Insurance Board (“WSIB”) or the Workplace Safety and Insurance Appeals Tribunal (“Appeals Tribunal”) to refile their claims so that those claims can be decided in light of the proposed rebuttable presumption.  The proposed rebuttable presumption will also apply to workers’ claims that are still pending before the WSIB or the Appeals Tribunal after Bill 191 is passed.

However, Bill 191 is not yet the law.  It still must go to committee, pass a second and third reading in the Ontario Legislature, and receive Royal Assent.

Our firm will continue to provide you with updates as the Ontario Government’s response to the COVID-19 pandemic evolves.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.

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