Re-Employment

Employer re-employment obligations

You have an obligation to re-employ your injured worker when all of the following conditions are met:

you regularly employ 20 or more workers
the worker worked for you continuously for at least one year before the date of injury, and
the worker is unable to work as a result of the work-related injury/disease.

a) How the WSIB defines “20 or more workers”

The number of workers employed by the injury employer on the date of injury is generally considered the number of workers regularly employed. For Schedule 1 employers, only the workers for whom earnings must be reported to the WSIB for the purpose of calculating premiums are included. For Schedule 2 employers, the total number of workers employed in Ontario on the date of injury is considered the number of workers regularly employed.

b) How the WSIB defines “continuous employment”

Workers who were hired at least one year prior to the date of injury are considered to be continuously employed unless the year was interrupted by a work cessation that was intended by either the worker or employer to break the employment relationship. For seasonal workers, the WSIB will look at the employer’s past hiring practices to determine whether the employer intended to continuously employ the seasonal worker.

c) How the 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 accommodatedwork 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 begins

The re-employment obligation starts when the employer receives notice that the worker is medically able to perform either the essential duties of his/her pre-injury job or suitable work. Notice 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 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.

Situations you may experience in re-employing a worker

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 product or service required. A “comparable” job would be similar in nature and have the same earnings as the worker’s pre-injury job.

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.

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 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.

Accommodating the worker up to the point of undue hardship

The employer’s duty to accommodate the work and/or the workplace incorporates “undue hardship” principles from the Ontario Human Rights Code and the Canadian Human Rights Act. Section 41(6) of the WSIA states that, “The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.”

Demonstrating “undue hardship”

The WSIB refers to the Ontario Human Rights Commission’s (OHRC) “Policy and guidelines on disability and the duty to accommodate,” which are available on the OHRC’s website at www.ohrc.on.ca. The WSIB considers the cost, any outside sources of funding, and any health and safety requirements when determining whether accommodating a worker would cause undue hardship to the employer.

Costs will meet the threshold of undue hardship if they are quantifiable, if you can prove they are related to the accommodation, if they are so substantial that they would alter the essential nature of the business, or if they are so high that they would substantially affect the financial viability of the business. The WSIB may consider providing assistance with the costs of accommodation if the accommodation provides a long-term solution to the worker’s impairment, and if the accommodation would otherwise result in undue hardship.

Terminating the injured worker within six months of re-employment

If you terminate an injured worker within six months of re-employing him/her, the WSIB will presume you breached your re-employment obligation and impose a re-employment penalty.

Workers who are terminated within six months of 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 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.

Terminating the injured worker before re-employment, or more than six months after re-employment

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

Re-employing fixed-term contract workers

Generally, the employer of a fixed-term contract worker is only required to re-employ the worker in the pre-injury job, comparable work, or suitable work for the remainder of the fixed-term employment contract that was interrupted by the work-related injury/disease. If the employer has routinely extended or renewed the worker’s fixed-term contract in the past, however, with no break in employment, the WSIB may decide that the employer’s re-employment obligations extend beyond the end of the fixed-term employment contract, for the duration of the re-employment obligation period, under the WSIA.

Re-employment penalty

If you are found in breach of your re-employment obligation, the WSIB will levy a re-employment penalty against the employer that is equal to up to one year of the worker’s NAE for the year before the injury, even if it exceeds the WSIB's maximum insurable earnings ceiling of $79,600 in 2011.

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.

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 only able to perform suitable work, the worker will receive LOE benefits 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

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.

When the worker voluntarily quits

If a re-employment obligation exists but the worker voluntarily quits his/her job, no further re-employment obligation would generally apply. 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 WT phase of the WR process.

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 WSIA if the collective agreement affords the worker greater re-employment protection. The WSIA also acknowledges the seniority provision of collective agreements.