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Updated WSIB Policy for the Seasonal Agricultural Worker Program (SAWP)

 

The Workplace Safety and Insurance Board (WSIB) has implemented changes to Operational Policy 12-04-08, Foreign Agricultural Workers. The policy applies to workers participating in the SAWP in Ontario and to WSIB accidents and decisions made on or after May 1, 2025. The changes update the interpretation of suitable and available work and affect return-to-work (RTW), earnings calculations and loss of earnings (LOE) benefit entitlement in these cases.

 

Key Takeaways for Employers

  • RTW is a central focus including potential RTW with the accident employer in Ontario or in the SAWP worker’s home country
  • LOE Benefits may extend beyond the agricultural season including the non-agricultural season and future seasons
  • Post-Injury earnings may be based on available work in the SAWP worker’s home country
  • Average earnings calculations follow special rules including different short-term and long-term calculations
  • Early claim filing and employer participation are critical in these cases

WSIB Policy 12-04-08 Updates

Filing a claim

  • Employers should ensure, where possible, that a SAWP worker submits a Worker’s Report of Injury/Disease (Form 6) before leaving Canada, and that the WSIB is notified in advance of departure

RTW

  • Employers work with SAWP workers and the WSIB to return the worker to suitable and available work with the accident employer during the agricultural season – within the scope of the worker’s work permit
  • WSIB RTW assessment may be done to assist the parties with:
    • RTW in Ontario
    • RTW in their home country
  • WSIB RTW plan may be developed:
    • If the worker is able to return to agricultural work in Ontario or not
    • If the worker can return to part-time/full-time agricultural work in Ontario, but is unable to perform “intended work” in their home country during the non- agricultural season

Entitlement to loss of earnings (LOE) benefits

  • SAWP workers may be entitled to receive full/partial/no LOE benefits in the:
    • Accident year’s agricultural season
    • Non-agricultural season and future agricultural seasons, if the WSIB expects the worker:
      • Is never able to return to agricultural work in Ontario
      • Is able to return to part-time/full-time agricultural work in Ontario but is unable to do intended work during the non-agricultural season, or
      • Is able to return to part-time/full-time agricultural work in Ontario

Determining the Suitable Occupation for LOE Benefits

  • Earnings for the SAWP worker’s LOE benefit calculation are based on:
    • Actual employment earnings, or
    • The earnings associated with the applicable suitable occupation (SO)
  • WSIB may determine the intended work is the SO in the worker’s home country when it’s suitable and available
  • WSIB uses the minimum/average minimum wage as post-injury earnings if it can’t confirm the worker’s post-injury earnings from the home country SO or intended work

Calculating Earnings

  • Generally calculated the same as for Ontario resident workers, but the duration of the short-term average earnings cycle is different for SAWP workers:

1.  Short-term average earnings

  • Apply for the remainder of the worker’s contract; room and board excluded
  • Repatriating the worker before their contract ends does not change that

2.   Long-term average earnings

  • Begin the day after the worker’s contract ends; calculated as non-permanent employment
  • Pre-injury earnings period includes the agricultural and non-agricultural seasons

3.  Recurrences

  • LOE benefits are based on the worker’s average earnings at the date of accident or their earnings when most recently employed – whichever is higher
  • WSIB calculations vary depending on whether the worker is entitled to LOE benefits during the accident year agricultural season, the non-agricultural season, and/or a future agricultural season

4.  Average earnings for survivors

  • If the worker’s death results from a work-related injury/illness, their long-term average earnings are used to calculate periodic payments for their survivors

Please contact the OEA if you have questions about the information in this handout or anything related to your WSIB claims or costs. We are independent of the WSIB, our legal services are available at no additional cost to you, and all conversations are confidential.

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