Air Canada flight attendant wins fight over COVID-19 workers' compensation

A B.C-based Air Canada flight attendant who saysshe contracted COVID-19 during a series of long-haul flights last March has won a battle with the airline for workers' compensation.

AWorkSafeBC officer sided with the flight attendant over the airline, which claimed the risk of getting COVID-19 on flights was "relatively low."

The decision, which was reached in early January, is one of several recent rulings that highlight the struggles that employees in different fields have had in trying to get compensation for workplace exposure to the coronavirus particularly in the early days of the pandemic.

Because the flight attendant got sick last spring, her application predated changes to provincial legislation last August that appear to have made B.C. a leader in Canada in dealing with COVID-19-related workers' compensation claims.

The province is alone in introducing presumptive coverage that adds COVID-19 to its list of occupational illnesses like lead- or asbestos-related sicknesses.

The changemeansemployees who make a claim after catching COVID-19 at work no longer have to prove they got it on the job if they work in an environment where risk of exposure is significantly greater than to the public at large.

That's in contrast to other provinces, where COVID-19 claims are treated on a case-by-case basis.

'An unfortunate thing to have to deal with'

Wesley Lesosky, president of the airline division of the Canadian Union of Public Employees, says the union would like to see the rest of the country follow B.C.'s example.

"We'd definitely like to see the same system that British Columbia has adopted where it's just recognized period," Lesosky told CBC News.

"For us as a union, dealing with the appeal process is incredibly cumbersome and challenging in itself, but it's definitely something we believe in because our members are front-line workers during the pandemic. It's an unfortunate thing to have to deal with, but it's definitely necessary."

In the case of the flight attendant, the employer asked for a review of WorkSafeBC's initial acceptance of the claim. The attendant said she worked a series of overseas flights between March 21 and March 30, 2020, and began feeling sick around March 28.

She tested positive for COVID-19 at a local hospital on April 4.

"The worker also advised the Board that she was told by the British Columbia Centre for Disease Control ("CDC") that there were several people on these flights who tested positive for COVID-19 and that two of her coworkers also contracted the illness," the decision reads.

"She indicated that she is close to these coworkers and took her breaks with them."

In her decision, review officer Melina Lorenz said the airline presented a study showing the risk of transmission on flights was low. But Lorenz said the study was published in October 2020 and only included data to that point. She said it also referred to the risk of transmission to passengers not flight attendants.

"Passengers generally sit in their seats for their flights, with the exception of an occasional trip to the washroom," Lorenz wrote.

"The study did not address the risk to flight attendants who would be in contact with many passengers and would move throughout the aircraft."

Thousands of COVID-related claims

The review doesn't name the employee or the airline, but Lesosky confirmed that it pertained to an Air Canada flight attendant. It'sone of a handful of similar decisions that can be found by searching WorkSafeBC's database. All involve situations which predate the August change to presumptive coverage.

In one, a pharmacy assistant claimed she got COVID-19 last April in a position where she regularly assisted customers "with the purchase of cough and cold medications."

In another, a mental health support worker claimed she got COVID-19 from a client who lives with his family. The family returned from a vacation in early March 2020 and were all sick. The client hadn't travelledwith them, but he began showing signs of illness shortly after.

In that case, the worker tested negative for COVID-19 the monthafter suffering severe symptoms. But WorkSafeBC said the negative test did not mean she never had COVID-19.

In yet another case, an occupational safety officer in the construction industry was successful in claiming that he got COVID-19 last March. He worked on a large site that used multiple contractors. And although he tested negative a month later, he had a number ofsymptoms.

The employer argued that no one else on the job site was diagnosed with COVID-19, but WorkSafeBC accepted that it was "at least as likely as not" that the employee had COVID-19 and that he got it at the workplace.

In a statement, WorkSafeBC says the board received 3,444 COVID-19-related claims up to Jan. 22. Of the ones that have proceeded to the decision stage, 1,777 have been allowed and 954 have been disallowed.

But the organization says the vast majority of disallowed claims involved "exposure only" where someone was exposed to the virus, but never developed the illness. If "exposure only" claims are taken out of the equation, WorkSafeBC's approval rate is 93 per cent.

'Not a workplace health crisis'

In the lead-up to the introduction of presumptive coverage for COVID-19 claims in B.C., The Employers Forum, a group representing more than 70 employers and employer organizations in all sectors of the economy, wrote a letter objecting to the change.

"Insufficient scientific information and nature of this pandemic means the Workers Compensation System can only effectively address claims on a case-by-case basis," the letter read.

"This pandemic like all pandemics is a public health crisis not a workplace health crisis."

Ritu Mahil, a labour and employment lawyer with Lawson Lundell LLP and former vice-chair of B.C.'s Labour Relations Board, says she believes the decision involving the flight attendant is significant because it paves the way for many more like it.

"This is one decision. There's going to be cases about airlines, grocery stores, schools, offices anywhere you come into contact with large groups of people," she said.

"And the test here is 'at least as likely as not.'"

'It puts you at risk'

In the past year, Lesosky says flight attendants have gone from wearing their regular uniforms to finding themselves in body gowns, masks, eye shields and gloves, wielding thermometers and scrubbing with special bars of soap.

"The whole industry for them has changed," he said.

Lesosky said "quite a few" flight attendants have contracted COVID-19 in the past year. He said the union saw a spike in cases at the beginning of the pandemic and an increase in November, but at the momentthey are not hearing of a large number.

Lesosky said he doesn't have exact numbers because some may not have contacted the union and others may still be going through the appeals process to get workers' compensation.

He said it is not unusual for companies to appeal positive decisions at workers' compensation boards. The union currently has appeals of decisions ongoing in Ontario and Manitoba.

But Lesosky said B.C.'s presumptive coverage makes the province the easiest to deal with.

Air Canada said the company has just received the WorkSafeBC decision and is in the process of reviewing it.

"I think what British Columbia has done is the right way to move forward," Lesosky said.

"Let's not add insult to injury. They [flight attendants] put themselves out there. They are in the vicinity of COVID, walking through a cabin of a couple of hundred people or even a couple dozen people. It puts you at risk."