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The focus of WR
The WSIB’s WR program integrates return to work, re-employment, and labour market re-entry (LMR). The “WR goal” is for the WPPs to return the worker to work that he/she has the skills to perform, that is consistent within his/her functional abilities and that, to the extent possible, restores his/her pre-injury earnings, ideally returning to the pre-injury job. WR activities begin when the worker is able to return to suitable or pre-injury work with the injury employer. Your WR obligation continues as long as the worker remains disabled and remains in your employ.
The WPPs’ cooperation obligations
Employers and workers are required to,
- contact each other as soon as possible after the injury occurs and maintain communication throughout the period of the worker’s recovery and impairment
- attempt to identify and provide suitable employment (see below) that is safe, productive, and consistent with the worker’s functional abilities and that, where possible, restores the worker’s pre-injury earnings
- give the WSIB any information it may request concerning the worker’s return to work, and
- notify the WSIB of any difficulty or dispute concerning their cooperation with each other in the worker’s early and safe return to work.
To try to ensure good communication from the outset, employers should provide injured workers with an information package that includes the name(s) and telephone number(s) of the individual(s) to be contacted during business hours, on the employer’s behalf. All voicemail messages left by the injured worker on the employer’s telephone should be recorded (including the date, time, and the content of the message) as part of the documentation process.
Duration of the WPPs’ cooperation obligations
The cooperation obligations apply to the WPPs from the date of injury/disease until the earliest of,
- the date the worker’s LOE benefits are locked in (usually 72 months after the date of injury), or
- the date an employment relationship no longer exists between the WPPs because either,
- the worker voluntarily quits, or
- the employer terminates the worker’s employment for reasons that are not related to the worker’s work-related injury/disease and related absences from work, or treatment for the work-related injury/disease, or the claim for WSIB benefits, in any way.
The WPPs’ cooperation obligations also end when the WSIB is satisfied that the injury employer currently has no suitable work, and is not expected to have any suitable work in the reasonably foreseeable future.
You should call the OEA for advice if any of the following situations arise:
- you are thinking about terminating or laying off an injured worker, or
- you don’t want to provide accommodation for the injured worker, or
- an injured worker has resigned, or
- an injured worker has left the workplace without an explanation, or
- an injured worker has entered the WT phase of the WR process.
“Work” may include the combining or “bundling” of tasks or duties which together may constitute either a temporary or permanent job, or a short-term training program that results in a job with the injury employer. But there is no requirement for the injury employer to create a new job.
Post-injury work, including the worker’s pre-injury job, is considered “suitable” if it is work that,
- is safe, i.e., it does not present a health or safety risk to the worker, to his/her coworkers, and/or to third parties, it is performed at a workplace that is covered by either the OHSA or the Canada Labour Code, and the worker is functionally able to safely commute between his/her home and the workplace
- is productive, i.e., it provides an objective benefit to the employer’s business
- the worker is medically able to perform, according to his/her physical and/or cognitive functional abilities (the worker’s mental alertness, reasoning, judgment, or short-term memory, all of which may be affected by the work-related injury/disease and/or the medication being used to treat the work-related injury/disease) as stated on the FA Form, and
- restores the worker’s pre-injury earnings, if possible.
Some of the things you need to think about when trying to identify suitable employment include,
- functional abilities information
- modified duties
- possible modifications to the workplace
- alternative duties
- where the worker lives, and
- your human rights obligations.
It is important to speak with the injured worker when preparing an offer of suitable work to match the worker’s functional abilities to duties that are available in your workplace. You should document all of the options you have considered. If, after having considered all of the options, you are unable to offer the worker suitable work, you must notify the WSIB decision-maker immediately.
Suitable Occupation (SO)
If an employer is unable or unwilling to offer suitable work to a worker who is unable to perform his/her pre-injury job because of the work-related injury/disease, the WSIB will consider training the worker to do a SO.
The SO that is identified for the worker represents a category of jobs suited to the worker’s transferable skills that is safe, productive, within his/her functional abilities and, where possible, restores his/her pre-injury earnings. The SO must also be available either with the injury employer or in the labour market.
“Available” work with the injury employer
Work with the injury employer is “available” if it exists at the pre-injury worksite, or at a comparable worksite of the injury employer. In determining whether suitable work is “available” as it relates to the injury employer, the WSIB will look at whether a job vacancy has been posted, advertised or otherwise communicated, or at evidence of hirings or transfers taking place on or after the date the injured worker is able to do suitable work.
In a unionized workplace, the WSIB will respect the terms of the collective agreement whenever possible, but may require the WPPs to consider modifying the operation of specific provisions of the collective agreement in order to meet their WR obligations. If the worker has a permanent impairment, or is likely to have a permanent impairment, and his/her condition is stable but the worker is unable to return to his/her pre-injury job, the WPPs and the WSIB will look at whether it is reasonable to believe the job will be available on a long-term basis. Suitable work must, therefore, also be sustainable.
“Available” work in the labour market
Post-injury work in the labour market is considered “available” if employment exists and is in demand in the labour market, to the extent that the injured worker has a realistic chance of getting a job.
WR services for occupational diseases, disablements and recurrences
If lost time is incurred long after the injury/disease, WR activities will begin as soon as the worker is functionally fit to return to work and all WR services will continue to be provided, where possible. If the worker has a new employer at that point, the WSIB will encourage the new employer to provide accommodated work since it is unlikely a cooperation or re-employment obligation would continue to apply to the injury employer.
What to expect if you are unable to arrange suitable and available work
If the WPPs are unsuccessful in arranging suitable and available work for the injured worker, the WSIB will meet with the WPPs at the worksite as soon as possible following the date of injury. The WSIB will also ensure the injured worker is receiving appropriate medical care through specialty clinics and occupational health assessment programs (OHAP), and provide dispute resolution services when it is notified of a dispute.
There is a heavy emphasis on human rights obligations. Employers have an obligation to offer suitable and available work to the injured worker. If there is no available work, employers must show they considered accommodating the worker up to the point of undue hardship. You should document all discussions with the injured worker and/or the WSIB, immediately after they take place, so you have an accurate and complete record of your WR activities.
How to bring an injured worker back to work
Be proactive and establish a return to work program before injuries occur. You should,
- determine your needs according to the size of your company, the nature of your business, and the number of claims you handle
- set clear expectations and procedures
- ensure commitment by all parties (senior management, workers, supervisors, claims personnel, and union representatives)
- inform all employees of your return to work program
- ensure all workers understand their duty to cooperate in return to work as outlined in the legislation, and their role in the WR process
- get feedback on your return to work program by surveying workers, supervisors, and union representatives, and
- evaluate the success of your program.
Maintain contact with the injured worker in order to,
- ensure the injured worker knows about your return to work program and his/her statutory duty to cooperate
- reassure the worker and find out how he/she is recovering
- determine whether the worker is capable of returning to regular or modified work
- receive the worker’s help in identifying opportunities for WR, and
- ensure the worker continues to remain part of the workplace by inviting the worker to staff meetings and social functions, and keeping the worker up-to-date on changes and activities in the workplace.
If the worker is capable of returning to modified work, develop and offer a return to work plan using information from the worker’s FA Form. The offer should be in writing and should include,
- a description of the job
- the physical demands of the job
- the start date and completion date of the plan
- the hours of work required for the job, and
- the wages payable for the job.
Send a copy of the offer to the WSIB. Contact the WSIB regularly (every one to two weeks) to update the WSIB on your return to work / WR efforts, and to ensure you are kept up-to-date on the worker’s claim.
What to do if the worker says the post-injury job you offered is not suitable
If the worker rejects the post-injury job you have offered, he/she must let you know that the offered job is not suitable, and provide reasons for this position, i.e., because the objects to be lifted are too heavy, the tasks are painful, etc. You must consider the reasons given and, through dialogue with the worker, consider further accommodations where appropriate. If the WPPs cannot reach an agreement, both WPPs need to notify the WSIB as soon as possible, and provide the WSIB with all of the information that is relevant to the dispute, i.e., job descriptions, physical demands analyses, and/or functional abilities information.
The WSIB Return to Work Specialist (RTWS) will meet with the WPPs at the worksite as soon as possible following the date of injury. The WSIB will also ensure the injured worker is receiving appropriate medical care through specialty clinics and occupational health assessment programs (OHAP), and provide dispute resolution services when it is notified of a dispute.
If the WSIB determines that the job you have offered the worker is not suitable, the worker will receive full LOE benefits while he/she continues to cooperate with the employer and the WSIB in the WR process.
If, however, the WSIB believes that the job you have offered the worker is suitable, the WSIB will determine that the worker is able to earn the wages associated with the offered job. The WSIB will inform both parties of this decision orally, adjust the worker’s LOE benefits, and confirm its decision in writing to both parties. The worker’s LOE is adjusted, usually as of the date of his/her next available shift, by deducting the earnings associated with the suitable work from the pre-injury earnings, regardless of whether the worker has accepted the job offer or not.
It is important to note that a dispute over job suitability does not mean the WPPs are uncooperative in the WR process. Workers who raise a health and safety concern under the OHSA or the Canada Labour Code are also not considered to be in breach of their obligation to cooperate in WR.
What to do when the injured worker is back at work
Remember that you want to encourage and help the injured worker to recover from the injury and to return to the pre-injury job as quickly as possible upon returning to work. You should consider meeting with the worker on the job. Ask the worker how he/she is handling the current job duties, and document all of the worker’s comments and concerns.
When necessary, modify the work and/or the workplace to provide work that is consistent with the worker’s functional abilities, and that respects applicable human rights legislation, i.e., reduced hours, reduced productivity requirements, assistive devices, etc. Good communication and cooperation between the WPPs is essential. Adjust your return to work plan as needed. Return the worker to the pre-injury job if he/she is ready to return to regular duties sooner than expected. If the worker finds the work too challenging, you may need to remove certain duties or prolong the duration of the modified job. Establish new target dates if the change in job duties is extended.
Complete an “Employer’s Subsequent Statement” Form 0009C to let the WSIB know the worker has returned to work. Update the WSIB about the worker’s progress on a regular basis, including a change in hours, a change in pay, and a return to his/her regular job.
Accommodate 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.”
WSIB policies refer to the Ontario Human Rights Commission’s (OHRC) “Policy and guidelines on disability and the duty to accommodate,” which has been replaced by the “Policy on ableism and discrimination based on disability.” This document is available on the OHRC’s website.
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 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.
How the WSIB determines non-cooperation
The WSIB will review the pattern of actions and behaviours of the WPP, and consider all relevant facts and circumstances including the degree to which the WPP has initiated and/or participated in the WR process. The WSIB will need to be convinced, on a balance of probabilities, that the WPP knew of his/her/its obligation, had the ability to carry that obligation out, and failed to do so, in order for a non-cooperation penalty to be applied.
When workers will not be found in breach of their obligation to cooperate
“Compelling circumstances” that are beyond a worker’s control, i.e., a strike or lockout, a death in the family, or an unexpected illness or injury may be considered a valid reason for a worker being unable to cooperate in WR. At the same time, however, his/her LOE benefits may be reduced if the employer has offered suitable and available work, and the worker’s loss of earnings is no longer fully attributable to the work-related injury/disease.
When employers will not be found in breach of their obligation to cooperate
“Compelling circumstances” that are beyond an employer’s control, i.e., a summer holiday or shutdown, a general layoff, a strike or lockout, and/or a corporate reorganization may be considered a valid reason for an employer being unable to cooperate in WR. For small employers, compelling circumstances may also include a death in the family or an unexpected illness or injury.
Advanced notice in a potential non-compliance situation
Prior to making a finding of non-cooperation or re-employment breach against an employer, the WSIB will provide the employer with a warning about a possible penalty – orally, where possible, and in writing. Prior to imposing a penalty, the WSIB issues a notice informing the employer of the finding of non-cooperation or re-employment breach, and the WSIB’s expectations for compliance. The written notice for non-cooperation penalties comes into effect seven WSIB business days after the date of the written notice. The one exception to this rule is that for small employers with fewer than 20 workers, non-cooperation penalties come into effect 14 WSIB business days after the date of the written notice.
What to do if the worker is not cooperating
If you do not believe the worker is fulfilling his/her obligation to cooperate in the WR process, you must contact the WSIB as soon as possible. The WSIB may send a RTWS to the workplace to help the employer and worker come to a resolution.
WR non-cooperation penalties for workers
If the worker has breached his/her obligation to cooperate in the WR process, the WSIB applies an initial partial penalty that reduces the worker’s LOE by 50% from the date the written notice comes into effect. This penalty stays in effect until the 14th calendar day following that date, or until the worker starts cooperating again, whichever is earlier.
If non-cooperation continues beyond the 14th calendar day after the date the written notice comes into effect, the WSIB applies a full penalty and stops the worker’s LOE benefits.
WR non-cooperation penalties for employers
a) Initial penalty
For employers, the WSIB will levy an “initial penalty” of 50% of the cost of the worker’s LOE benefits from the date the written notice comes into effect (seven WSIB business days after the date of the WSIB’s written notice) until the 14th calendar day following that date, or until the employer starts cooperating again, whichever is earlier.
b) Full penalty
If the employer’s non-cooperation continues beyond the 14th calendar day after the written notice comes into effect, the WSIB will levy a “full penalty” which is equal to 100% of the cost of the worker’s LOE, plus 100% of any costs associated with providing WT services to the worker.
The full penalty will continue to apply until the earliest of,
- the day after the day the WSIB is satisfied the employer has started cooperating again
- the date no further LOE benefits are payable and no WT services are provided, or
- 12 months after the date the written notice came into effect.
Re-employment obligations and potential penalties continue to apply to employers, as well.