Exposure to the COVID-19 virus in the workplace, an unforeseen and sudden event? – SOQUIJ Blog



The story is unfortunately simple. In May 2020, the worker, a truck driver, noticed that he had lost his sense of smell while refueling his vehicle. He therefore took a test for COVID-19, which turned out positive. Claiming to have been the victim of an employment injury, the latter filed a complaint with the Commission des normes, de l’énergie, de la santé et de la sécurité du travail. This complaint was however refused and the refusal was confirmed by the administrative review. The Administrative Labor Tribunal (TAT) was then seized of the case.

Some definitions

In order to fully understand the terms used in the Act respecting industrial accidents and occupational diseases, the legislator defined various concepts in its article 2. Thus, the occupational injury constitutes an injury or illness which occurs as a result of or during a work accident or an occupational disease, while an work accident corresponds to an unforeseen and sudden event attributable to any cause arising out of or in connection with the work and which results in an employment injury.

The notion of“Unforeseen and sudden event” is not defined in law. The Court of Appeal, in Antenucci, however defined this concept as being “a fact which happens, a situation, precise in time, which materializes, by comparison with a circumstance which is a particularity accompanying this fact, this event or this situation”.

TAT analysis

From the outset, an infection linked to the COVID-19 virus is a disease and the Tribunal recognizes that having been in contact with a virus can constitute, depending on the circumstances, an unforeseen and sudden event. But one question remains: was this disease contracted through or during work?

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During his testimony, the worker explained that, in the course of his work duties, he was often in confined spaces, where it was impossible to maintain the required distance. This was the case, in particular, when he went to the dispatcher’s office, to the foremen’s office or to the warehouse. This element is also confirmed by the employer’s occupational health and safety manager. In May 2020, 5 employees working in the warehouse were infected with COVID-19 and the worker claimed to have had close contact, in the course of his tasks, with each of them, and more particularly with an employee who contracted the virus 1 week before him.

In Desgagnés, the Tribunal has already determined that it does not have to determine the precise moment of the contagion, but rather whether the infection in question was acquired, more likely, in the workplace. In this case, the worker stated that he had been in strict isolation, having had no contact outside his workplace, and this evidence was not contradicted.

In these circumstances, the TAT concluded that the latter had been exposed to the COVID-19 virus in the course of his work, that it was an unforeseen and sudden event and that the worker had thus suffered an occupational injury.

A first decision, but probably not the last

This decision is effectively the first decision of the TAT that recognizes exposure to COVID-19 as an unforeseen and sudden event, but, since this case is certainly not an isolated case, other decisions will likely be. made about it. It will then be interesting to analyze the judgments of the TAT in this regard.

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References

  • Lamarche et Consolidated Fastfrate inc. (TAT, 2021-09-23 (decision corrected on 2021-09-30)), 2021 QCTAT 4580, SOQUIJ AZ-51796048. As of the date of broadcast, the decision had not been reviewed or appealed for judicial review.
  • Antenucci c. Canada Steamship Lines Inc. (C.A., 1991-04-16), SOQUIJ AZ-91011480, J.E. 91-747, D.T.E. 91T-446, [1991] RJQ 968. Motion for leave to appeal to the Supreme Court dismissed (CS Can., 1991-11-07), 22509.
  • Desgagné and Saguenay – Lac-Saint-Jean Integrated University Health and Social Services Center (Regional Public Health Department), (TAT, 2019-10-25), 2019 QCTAT 4771, SOQUIJ AZ-51640012, 2019EXPT-2398.