APPEALS RESOLUTION OFFICER DECISION
DEcision number: 20210029
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER
REPRESENTED by: EMPLOYER REPRESENTAIVE
HEARING: HEARING IN WRITING
HEARD by: STEPHEN CRISOSTOMO, appeals resolution officer
ISSUE
The worker objects to the Adjudicator’s decision dated May 25, 2021, which denied entitlement to Workplace Safety and Insurance Board (WSIB) benefits for a reaction from their January 2021 COVID-19 vaccination/immunization.
BACKGROUND
The employer completed the Employer’s Report of Injury/Disease (Form 7) dated May 21, 2021 and indicated that on January 16, 2021, the worker, a Companion at the retirement facility, reported that they received their COVID-19 vaccination on January 15, 2021 and missed work on January 16, 2021 due to a reaction to the vaccination. The employer advised that COVID-19 vaccinations were not mandated by the employer, the employer did not arrange the vaccination for the worker and the employer did not administer the vaccination to the worker.
The worker completed the Worker’s Report of Injury/Disease (Form 6) dated June 25, 2021 and indicated upon receiving the COVID-19 vaccine in January of 2021, they experienced an immediate reaction for which they sought medical attention on January 17, 2021 and was diagnosed with a demyelinating disorder. The worker explained that the vaccine appointment was scheduled through the employer and was available to them before it was available to the general public, as they are a health care worker. The worker stated they were under the impression that COVID-19 vaccination was mandatory.
On March 3, 2021, Dr. Moghal advised the worker had a working diagnosis of demyelinating disorder most probably secondary to the COVID-19 vaccine.
Entitlement to WSIB benefits was reviewed in May of 2021. Based on the review, the Adjudicator denied entitlement to WSIB benefits for the worker’s adverse reaction to their COVID-19 vaccination/immunization after determining the criteria for allowance outlined in Operational Policy 15-04-10, Immunization Against Infectious Disease had not been met. This decision was communicated on May 25, 2021.
The worker objected to the May 25, 2021 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.
Worker Representative’s Position
The worker’s representative submits:
- The worker was under the impression that COVID-19 vaccination was mandatory at work, as the appointment was scheduled through the employer.
- The worker was being responsible by getting the COVID-19 vaccine, as they work in the health care field. They were also being cautious not only for themselves, but for their clients, co-workers, family and the rest of the world.
- The employer did not mandate COVID-19 vaccination at the time the worker received their COVID-19 vaccination in January of 2021.
- The worker acted safely by being vaccinated even before COVID-19 immunization was formally mandated in the workplace.
Employer Representative’s Position
The employer’s representative submits:
- Proof of vaccination against COVID-19 is not a compulsory part of the worker’s employment with the employer.
- The employer did not mandate the vaccine and did not administer the vaccine to the worker.
AUTHORITY
Operational Policy Manual:
Published
15-04-10 Immunization Against Infectious Disease
October 12, 2004
ANALYSIS
I have carefully considered all of the available information and relevant operational policy in reaching this decision.
I find the worker is not entitled to WSIB benefits for the adverse reaction they had due to their COVID-19 vaccination/immunization in January of 2021. The reasons for my decision follow.
Operational Policy 15-04-10 states in part:
Entitlement is in order for any reaction from compulsory (my emphasis added) immunization procedures.
The immunization must be for the prevention of a disease or infection that is work related.
Entitlement will be awarded for any adverse reaction arising from compulsory immunization procedures as a pre-employment requirement, or as a compulsory part of the employment, providing the immunization is for the prevention of work related disease or infection.
As such, for entitlement to be granted for benefits in this claim, there must be evidence that the worker had an adverse reaction that resulted from a compulsory immunization procedure, for the prevention of work related disease or infection.
As mentioned by the worker’s representative, the WSIB’s website provides information about claims and COVID-19 and states in part:
When determining whether a reaction to a COVID-19 vaccination is work-related, the WSIB considers:
- Whether the vaccination was a compulsory part of your employment.
- A vaccination will generally be a compulsory part of your employment if your employer has a rule or policy that requires employees to be vaccinated or if your employer uses some element of coercion for vaccination (e.g. threat of termination of employment, job changes or penalties).
- Whether the reaction is adverse, e.g. serious and unexpected.
In this case, while the worker states they felt that COVID-19 immunization was mandated by the employer at the time they received their vaccination, both the employer’s and the worker’s representatives acknowledge that at the time the worker received their COVID-19 vaccination, COVID-19 vaccination/immunization was not mandated by the employer. A review of the file also reveals no evidence that the employer had a rule or policy that required employees to be COVID-19 vaccinated, at the time the worker received their COVID-19 vaccination in January of 2021. There is also no evidence before me that shows the employer used some element of coercion for the worker to get COVID-19 vaccinated.
Operational Policy 15-04-10 is specific and states entitlement is in order for any reaction from compulsory immunization procedures. In the absence of any evidence that establishes the employer had a rule or policy that requires employees to be COVID-19 vaccinated or that the employer used some element of coercion for vaccination (e.g. threat of termination of employment, job changes or penalties), I find the worker’s COVID-19 immunization/vaccination in January of 2021 was not compulsory and/or mandated by the employer. As such, I find the policy criteria for entitlement to benefits due to a reaction from an immunization procedure has not been met. Therefore, entitlement to WSIB benefits for the worker’s adverse reaction to their COVID-19 vaccination/immunization procedure is denied.
CONCLUSION
Based on the evidence outlined in this decision, I conclude entitlement to WSIB benefits for the worker’s adverse reaction to their COVID-19 vaccination/immunization in January of 2021 is denied.
The worker’s objection is denied.
DATED November 17, 2021
S. Crisostomo
Appeals Resolution Officer
Appeals Services Division