Jun 13

WSIB Benefits for Injection Complications

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Initial Entitlement for Adverse Reaction to Influenza Vaccine

A review of WSIAT Decision 1504/21 – WSIB Policy 15-04-10

To vaccinate or not to vaccinate….that is the question!

Do you have a choice when a vaccine is being mandated or even “encouraged” by your employer?

What happens when you are expected to vaccinate due to the nature of your employment and then suffer an adverse reaction from it?  Should the employer be held accountable?  Injection Complications

It seems logical that any vaccine should be a medical/personal decision. However, once it becomes a term of your employment, the “personal decision” aspect is taken out of the equation. Therefore, it also seems logical that the employer take responsibility if things go wrong.

The Workplace, Safety and Insurance Board’s (WSIB) mission is to:

“provide support to people who have suffered a work-related injury or illness”

WSIB makes decisions about entitlement to benefits based on their own Policies and Guidelines.  In 2004, WSIB published Policy 15-04-10 which states entitlement to WSIB benefits:

“is in order for any reaction from compulsory immunization procedures”. 

However, the accompanying Guideline to the policy for entitlement states:

“Awards will be made for medication or injections administered to workers who, due to the nature of their occupation are exposed to infectious disease…”

Click here to see the full Policy & Guideline: https://www.wsib.ca/en/operational-policy-manual/immunization-against-infectious-disease

Despite the Policy’s reference to the words “compulsory immunization”, the Guideline does not specify whether it must be categorized as “compulsory”.

SUMMARY OF WSIB DECISION NO. 1504/21  – See Canlii full Decision No. 1504/21 here: https://www.canlii.org/en/on/onwsiat/doc/2021/2021onwsiat1777/2021onwsiat1777.html?autocompleteStr=1504%2F21&autocompletePos=1

  • In 2016 WSIB was faced with a decision: a hospital worker suffered complications from a flu vaccine.  The vaccine was strongly encouraged by the employer.  The worker lost time due to complications arising from the vaccine.
  • WSIB denied her entitlement to benefits.
  • The worker appealed the WSIB’s decision to the Workplace Safety and Insurance Appeals Tribunal (WSIAT).
  • At the hearing, WSIB relied on the above policy stating that the vaccination was not made “mandatory” by the employer, simply “encouraged”.

Now, let’s analyze this:

  1. Not only was the vaccination “encouraged” by the employer, but it was also administered by the employer, during the course of employment, on the employer’s premises and during work hours.
  2. It should be noted, the employer in this instance “strongly encouraged” employees to vaccinate to protect its patrons, to the extent of offering rewards to employees i.e.: gift cards if vaccinated before a certain date.
  3. Further, the employer circulated documentation that stated in the event of an outbreak unvaccinated workers would be off work (without pay) unless they took “prophylactic medications or other precautions”

THE WORKER’S APPEAL SUCCEEDS!

Despite the WSIB’s own policy reference to “compulsory immunization”, the Tribunal stated that the Policy Guidelines were unclear in that regard. WSIAT concluded that worker should be granted initial entitlement for the complications, as she received the vaccine in the course of her employment.

It will be interesting to see if this case is followed by other Tribunal Panels with Covid immunization complications

By: Nadia Zambito

Suzanne M. Dajczak Professional Corporation, WSIB Law

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