Gary Sands

Guest column by Gary Sands, SVP, Canadian Federation of Independent Grocers (CFIG)

A few weeks ago, WorkSafeBC, an agency of the Government of British Columbia responsible for investigation and adjudication of worker compensation claims, decided that for anyone who tests positive for COVID-19 who has a job, the agency will presume the person contacted COVID in their workplace, with no need to investigate the claim.

With all that the business community has endured over the last few months, this is an ill-advised and ill-timed decision. This presumption of workplace responsibility comes despite the fact that we know the COVID virus can be contacted in household settings, public spaces, using transit, or through a myriad of outdoor activities in daily life. All the more likely as governments have relaxed restrictions and school reopening are underway. In fact, research undertaken by WorkSafeBC itself conceded that “Based on the limited analytical epidemiologic research currently available, the conclusion is that there is no consistent association between work with a specific occupation and a greater risk of COVID-19 infection.”

Notwithstanding the lack of science, with the decision in BC behind them, unions are reaching out to their counterparts in other provinces and urging that this new adjudicative lens be used across the country---hopefully, in their view, before we encounter a second wave of COVID-19. One result of those efforts was in Ontario, where the NDP have introduced a private members bill that would replicate the WorkSafeBC approach.

Let us put this proposed departure from the norm of evidence-based adjudication, into the current context in which Canadian businesses find themselves. These business owners have invested their lives into the bricks and mortar of physical store locations. They buy local, hire local and live in the communities they serve. At the same time, they compete within a framework that includes three levels of government regulations, taxes, workplace insurance premiums, increasing credit card fees and other costs, all while up against e-commerce giants whose tentacles have grown exponentially during the pandemic.

Unfortunately, many of our local businesses will never emerge from the ravages that COVID-19 has inflicted on the economy. Those that have survived will face an uphill climb back to long term sustainability, especially given the possibility of a second COVID-19 wave. Burdening those businesses left standing on this cratered competitive landscape is both indefensible and irrational. It also turns Canadian jurisprudence on its head—an employer is presumed guilty, until proven innocent-- and factual evidence is irrelevant in a quasi-judicial body.

Pushing the responsibility and costs of a public health issue such as COVID-19, onto the backs of employers will have significant financial and operational consequences for businesses. If any of their employees test positive, they will be penalized with higher workplace insurance premiums. It also begs the question of what does an employer now do from an operational perspective, if the government has presumed their business is the reason the employee tested positive?

This would also be particularly discouraging for grocers, who have invested significantly with no government support, in obtaining personal protective equipment for employees and enhanced in-store cleaning and safety protocols. This shift in responsibility also makes no sense from a public policy perspective. This is not the U.S. Canadians know that in our publicly funded universal health care system, when a person in our country tests positive, they do not do so in a health vacuum. Treatment and compensation for those individuals is available under all the legislative and support measures already in place and which have been augmented by governments during the pandemic.

Our courts and government agencies also have an inherent responsibility to ensure that fairness and evidence based adjudicative principles should be the cornerstones of their decisions. For any government to depart from those principles sets a troubling precedent and should be of concern to all Canadians.

  

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