WSIB Special Report: Got the Flu? What to Do

There is a concerning trend among some employers forcing staff to make a WSIB claim for influenza-related lost time and denying access to sick time where it would be otherwise applicable. Most employers already know it is very difficult to get this type of claim approved by WSIB. But it’s also more expensive for the employer to have a successful WSIB claim because for every dollar WSIB pays, an employee costs the employer approximately three dollars.

These factors led us to be concerned that there were ulterior motives behind this change in practice. Knowing WSIB claims for the flu would likely not be approved, we believe that there is a possibility that certain employer’s were attempting to use the WSIB claims process to frustrate employees and force them to choose between having their pay delayed or denied and coming to work despite being sick. Given those concerns, we thought it was important to discuss your rights in relation to a WSIB claim versus access to your accumulated sick bank.

First things first. It is important for you to know that influenza is considered a workplace-acquired infection, and you have the right to file a WSIB claim if you become sick because of your workplace.

If your claim is going to be successful, there are a number of things that your employer should be doing. The Ministry of Health and Long-Term Care requires your employer to have an ongoing surveillance program to detect the presence of infections in residents and staff. Pursuant to s.229(7) of O.Reg.79/10 under the Long-Term Care Homes Act, licensees of long term care homes are required to implement the “Best Practices for Surveillance of Healthcare Associated Infections in Patient and Resident Populations” and to report any outbreaks to their local public health unit. There are similar requirements under the Retirement Homes Act.

Regardless of which sector you work in (hospital, long term care, retirement, homecare), your employer also has reporting requirements to the Ministry of Labour. Under subsection 52(2) of the OSHA, an employer must provide written notice within four days of being advised of an occupationally acquired infection to the Ministry of Labour, to the Joint Health and Safety Committee, and to the union. Your employer also has an obligation to notify WSIB of any instances of occupationally acquired infection within 72 hours of receiving notice of said illness.

If you become sick at work because of a workplace-acquired infection, your employer should already know about the outbreak according to its monitoring obligations and should have reported, or be in the process of reporting, the outbreak to multiple agencies. If your employer is legitimately concerned that your illness arises from a workplace-acquired infection and you are being asked to file a WSIB claim, you should ask for the following information:

• Has there been confirmation that your facility is in outbreak?
• Has the outbreak affected a cluster of residents or staff, and has this outbreak been reported to the local public health unit?
• Has your employer reported the workplace-acquired infection to the Joint Health and Safety Committee, the Ministry of Labour, the union, and to WSIB in accordance with their reporting requirements?
• Will the employer be supporting your WSIB claim as a workplace-acquired infection?

If your employer is not adhering to the surveillance and reporting requirements and has answered no to any of the above questions, your WSIB claim for a workplace-acquired infection likely will not be successful. In that case, you should be seeking compensation for lost time through your accumulated sick-bank coverage, as provided under your collective agreement.

If your employer is denying access to your sick bank and has not complied with the above-mentioned requirements, you should immediately contact your CLAC steward for assistance.