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Bulletin | Covid-19 | The HR Space

Adverse Reaction to COVID-19 Vaccine Could Be Compensable Under Workers’ Compensation

Fasken
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Labour, Employment & Human Rights Bulletin | HR Space

Early in 2020, the workers’ compensation boards (WCBs) across Canada set out criteria by which they would consider whether a claim for COVID-19 would entitle an employee to workers’ compensation benefits. Generally, in order for someone to be entitled to benefits, it must be shown that their illness arose out of and in the course of their employment.

As we move toward getting the country vaccinated against COVID-19, another question has arisen: if a worker has an adverse reaction to a COVID-19 vaccine, are they entitled to workers’ compensation benefits?

In all workers’ compensation cases, the circumstances surrounding the claim must be examined in order to confirm whether benefits are payable. For those provinces that have provided direction around the compensability of this issue, their stance is similar. Generally, an adverse reaction to a COVID-19 vaccine may be considered compensable if:

  1. The immunization is required by the employer/compulsory; and
  2. The worker sustains an injury/illness/death as a result of the vaccination.

In British Columbia, the WCB has set out on its website[1] how it would determine whether a vaccination was required by the worker’s employment. Criteria include that:

  • The vaccination was required as a condition of employment or a condition of continued employment;
  • The vaccination is not required as a condition of employment, but the worker would not be permitted to work if there was an outbreak at the employer’s premises;
  • The worker is convinced that it was necessary to receive the vaccination, in spite of objective evidence from the employer that the process was not compulsory.

If it is established that the vaccination was a requirement of the worker’s employment, any injury or death resulting from that vaccination would be considered to have arisen out of and in the course of their employment, subject to other potentially relevant facts and circumstances. If the evidence does not support that the vaccination was a requirement or condition of the employment, an adverse reaction is not likely to be considered to be compensable.

The Alberta WCB published a Fact Sheet[2] that states that a vaccine reaction will not be compensable if the vaccination is recommended, but not a requirement of the employment. It will also not be compensable if the employer offers an incentive or payment of the vaccination, but the option still remains for the worker as to whether to get the vaccine or not and there are no repercussions from that choice. Similar to BC, the information from the Alberta WCB provides that there would likely be no entitlement where the decision to obtain the vaccine was voluntary.

The Ontario Workplace Safety and Insurance Board (WSIB) had published information on its COVID-19 FAQ page about how it would treat claims for adverse reactions to COVID-19 vaccinations. That information has since been removed. However, the WSIB has an Operational Policy in place regarding entitlements in connection with a reaction to a compulsory immunization procedure. That Policy was in place prior to COVID-19 and appears to be in line with how the other provinces would view adverse reaction to compulsory vaccination.

Employers should be aware of the above and should be prepared to answer questions about their policies regarding vaccinations should these types of claims arise. In all cases, workers who are covered by workers’ compensation are entitled to make claims to their respective provincial WCB if they think their condition is work-related. The WCBs have exclusive jurisdiction to determine whether benefits should be allowed or not. Employers who become aware of these claims should follow their habitual provincial reporting guidelines and should consider challenging those claims if they do not believe they should be allowed.

 

 

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