Re-Employment

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Employer re-employment obligations
In addition to your cooperation obligations in the work reintegration (WR) process, all employers engaged primarily in construction also have a duty to re-employ their construction workers, regardless of how many construction workers they employ or the worker’s length of employment, when the worker is unable to work as a result of the work-related injury or disease. Your re-employment obligations are set out in O. Reg. 35/08, and also Operational Policy Manual (OPM) Doc. Nos. 19-05-01, 19-05-02, 19-05-03, and 19-05-04.

How the Workplace Safety and Insurance Board (WSIB) defines “unable to work”
The worker is considered “unable to work” if, because of the work-related injury/disease, he/she

  • is absent from work, or
  • works less than regular hours, and/or
  • requires accommodated/modified work that pays, or normally pays, less than his/her regular pay, regardless of whether you reimburse the worker for an actual loss of earnings or not.

Lost time and/or earnings due to health care appointments are excluded from this definition.

When your re-employment obligation to your construction worker begins
The re-employment obligation starts when the employer receives notice that the construction worker is medically able to perform either the essential duties of his/her pre-injury job, suitable construction work, or suitable non-construction work. Notice respecting a worker’s level of fitness to return to work may be provided to the employer by the worker, the worker’s treating health care professional, and/or the WSIB. Notice of fitness to return to work includes use of the WSIB’s functional abilities (FA) form, or personal notice by telephone or by fax, and is effective on the date it is received by the employer. Notice provided by regular mail is effective seven calendar days from the date the notice was sent.

When your re-employment obligation to your non-construction worker begins
In order for a non-construction worker, i.e., office staff that are not working at a construction site, to have a re-employment right, the employer must have a total of at least 20 workers, and the non-construction worker must have been employed by the employer for at least 12 months prior to the date of his/her work-related injury/disease.

As your re-employment obligations for construction workers and non-construction workers are different, you should download a copy of the Office of the Employer Adviser (OEA) guide for non-construction employers from our website at www.employeradviser.ca if you are managing a WSIB claim involving a non-construction worker.

What to do if you have a re-employment obligation
If you have a re-employment obligation, you need to contact the worker as soon as possible and maintain appropriate communication throughout the recovery/impairment period. You will also need to attempt to provide suitable, available work.

Situations you may experience in re-employing a worker
If the employer and the worker disagree about the worker’s ability to return to work, the WSIB will determine whether the worker is medically able to perform the essential duties of his/her pre-injury job or to perform suitable work.
When the worker is able to perform the essential duties of the pre-injury job, your obligation is to offer the worker either the pre-injury job or a comparable job. The “essential duties” of the pre-injury job are all of the duties necessary to produce, at the normal level of productivity, the final service required. A “comparable” job would be construction project work in the worker’s trade that is performed at a project similar in nature to the accident project, and which has the same earnings as the worker’s pre-injury job. The WSIB will consider the duties performed, the skills, qualifications and experience needed, the degree of physical and mental effort required, the rights and privileges associated with the position, the geographic location with respect to the commute involved, and whether the job is covered by the same collective agreement, where applicable.

When the worker is medically able to perform suitable work, as defined above, your obligation is to offer the worker the first opportunity to accept suitable work when it becomes available.

A new job does not have to be created for suitable work but as soon as one is available, the worker must be given the first opportunity to accept it. If you offer the worker suitable employment and another suitable job that is more comparable in nature and earnings to the worker’s pre-injury job becomes available, you must offer the more comparable job to the worker because the requirement to offer suitable employment is ongoing during the period of the re-employment obligation.

Duration of your re-employment obligation
Your obligation to your construction workers lasts until the earliest of

  • two years after the date of the injury
  • one year after you receive notice from the WSIB that the worker is medically able to return to the essential duties of the pre-injury job
  • the worker turns 65, or
  • the date the worker declines your offer of re-employment in accordance with O. Reg. 35/08.

Your obligation to your non-construction workers lasts until the earliest of

  • two years after the date of the injury
  • one year after you receive notice from the WSIB that the worker is medically able to return to the essential duties of the pre-injury job, or
  • the worker turns 65.

Consequences of terminating the injured worker during the obligation period
If you terminate or lay off an injured worker within six months of re-employing the worker, the WSIB will presume you breached your re-employment obligation and impose a re-employment penalty.

Construction workers who are terminated within six months after being re-employed have three months to ask the WSIB to investigate the potential breach. The WSIB is not required to investigate such complaints after the three-month period, but they may choose to do so and also may take the initiative to investigate at any time.

The WSIB presumes the employer has breached its re-employment obligation if a worker is terminated

  1. within six months of re-employment, other than at a construction project
  2. within six months of re-employment at a construction project, before his/her work on the construction project has been completed, or
  3. when his/her work on a construction project has been completed, and the employer does not re-employ the worker at a construction project within six months of re-employment, even though

(a) the worker is able to perform the essential duties of his/her pre-injury job, and either the pre-injury job or a comparable job is or becomes available at the construction project or at another construction project, or

(b) suitable work is or becomes available either at the construction project or at another construction project.

The employer can rebut the presumption by proving, on a balance of probabilities, that the termination was not related to the injury. The employer (or worker) has 30 days to object to a re-employment decision.

If you terminate the injured worker after six months of re-employment, but within the obligation period, a re-employment breach is not presumed. However, you may still be found in breach of your obligation if the facts support it. The WSIB will look at the circumstances surrounding the termination and decide whether the termination was related to the workplace injury/disease in any way. Before terminating or laying off an injured worker, call the OEA or your legal advisor for advice.

Re-employment penalty
If a construction employer is found in breach of its re-employment obligation to its construction workers, the WSIB will levy a re-employment penalty against the employer that is equal to up to one year of the worker’s net average earnings (NAE) for the year before the injury, even if it exceeds the WSIB’s maximum insurable earnings ceiling of $79,600 in 2011, or $81,700 in 2012.

An inappropriate offer of re-employment may also result in a penalty.

The penalty will be applied seven WSIB business days after the date that appears on the notice letter from the WSIB, and is apportioned based on the length of the remaining obligation period at the time the breach takes place. The penalty may be reduced by 50% if the employer subsequently offers suitable work at no wage loss, or by 25% if the employer offers suitable work at a wage loss, as long as employment continues for the remainder of the obligation period.

If you are not successful in re-employing an injured worker but the WSIB is satisfied with your attempt to do so, the WSIB may not penalize you.

The WSIB may also waive the penalty if the employer offers to re-employ the construction worker but the parties agree to voluntary termination. If, however, the employer fails to offer to re-employ the construction worker and the parties then agree to sever their working relationship, the WSIB may still levy the penalty. You should call the OEA or your legal advisor for advice if you have an injured worker who subsequently resigns, leaves the workplace without providing an explanation, or enters the work transition (WT) phase of the WR process.

Re-employment payments or LOE benefits paid to the worker
If the employer does not re-employ a worker who is able to do the essential duties of the pre-injury job without accommodation, the worker will receive re-employment payments from the WSIB, retroactive to the date the re-employment obligation was breached, plus interest. These payments continue until the earlier of one year, or the end of the re-employment obligation, as long as the worker has not found employment elsewhere and is available for and cooperating in appropriate WR services.

If the employer does not re-employ a worker who is only able to perform the essential duties of the pre-injury job with accommodation, or is only able to perform suitable work, the worker will receive loss of earnings benefits (LOE) from the WSIB, retroactive to the date the re-employment obligation was breached, plus interest. If the employer does not offer the worker any work, the worker will receive full LOE benefits if he/she has not found employment elsewhere and is available for and cooperating in health care and appropriate WR services, even if the services extend beyond the date the re-employment obligation ends.

Breaching cooperation and re-employment obligations in the same claim
If an employer breaches both a cooperation and a re-employment obligation during overlapping periods in the same claim, the WSIB will apply a single penalty – whichever one is higher. But if an employer breaches more than one cooperation or re-employment obligation at different periods in the same claim, the WSIB may apply more than one penalty.

Different rules apply to unionized and non-unionized workers
In unionized environments, the collective agreement prevails over an employer’s re-employment obligations under the Workplace Safety and Insurance Act (WSIA) if the collective agreement affords the worker greater re-employment protection. The WSIA also acknowledges the seniority provision of collective agreements.

O. Reg. 35/08 sets out the employer’s re-employment obligations at unionized and non-unionized construction workplaces.

a) Unionized construction workplaces
When the employer is bound by a collective agreement with the construction worker’s union at the time of injury, that workplace is referred to as a “collective agreement workplace.”

If the worker is medically able to perform the essential duties of the pre-injury job, offer to re-employ the worker in a job in his/her trade and classification at a collective agreement workplace. That is a construction project or shop that is within the trade, sector and geographic jurisdiction covered by your collective agreement. Such a job must be either available or is being done by another worker who started that job after the date the worker was injured.

If the worker cannot perform the essential duties of the pre-injury job but is medically able to perform suitable work in construction, offer to re-employ him/her in a suitable job in his/her trade and classification at a collective agreement workplace. If that is not available, offer a suitable job in the worker’s trade, but in a different classification, at a collective agreement workplace. If neither option is available, offer a suitable construction job at one of your other workplaces, if available.

If more than one job described in any of the above scenarios is available, offer the worker the job that is most similar in nature and earnings to his/her pre-injury job. You must take into consideration the length of time each job will last, the duration of the construction project, if applicable, and the travel distance between each worksite/job and the worker’s home.

If the WSIB does not think the worker will be medically able to perform construction work again, but is medically able to perform suitable work outside of construction, you must offer to re-employ the worker in a suitable non-construction job, if such a job is available. Either the worker or the employer can ask the WSIB to provide the worker with a WT assessment and, if necessary, a WT plan to help the worker return to work with the employer. Before making such a decision, please call the OEA to discuss whether this would be in your best interests.

b) Non-unionized construction workplaces
If the construction worker was not covered by a collective agreement at the time of injury, and the employer continues to employ workers either at the accident workplace or at a comparable workplace during the re-employment period, offer to re-employ the worker in a job in his/her trade at the accident workplace if such a position is either available or is being done by another worker who started the job on or after the date the worker was injured, if the injured worker is medically able to perform the essential duties of the pre-injury job. Alternatively, such a job should be offered at one of your comparable workplaces, if available.

If the worker cannot perform the essential duties of the pre-injury job but is medically able to perform suitable work in construction, offer to re-employ the worker in a suitable job in his/her trade, at the workplace where the worker was injured. If that is not available, offer the worker a suitable job in his/her trade at a comparable workplace. If that is not available, offer a suitable job in construction at the accident workplace or, failing that, at a comparable workplace, if available.

If more than one job described in any of the above scenarios is available, offer the worker the job that is most similar in nature and earnings to his/her pre-injury job. You must take into consideration how long each job will last, the duration of the construction project, if applicable, and the travel distance between each job and the worker’s home.

If the WSIB does not think the worker will be medically able to perform construction work again, but is medically able to perform suitable work outside of construction, you must offer to re-employ the worker in a suitable non-construction job, if such a job is available. Either the worker or the employer can ask the WSIB to provide the worker with a WT assessment and, if necessary, a WT plan to help the worker return to work with the employer.