Policy
When certain conditions are met, injury employers may have, in addition to their obligations to cooperate in the return-to-work (RTW) process, an obligation to re-employ a worker who has been unable to work due to a work-related injury.
This document should be read in conjunction with 19-02-07, RTW Overview and Key Concepts.
This policy does not apply to a construction employer's construction workers. For policies applicable to construction employers who employ construction workers, see the Re-employment in the Construction Industry section of the RTW chapter in the Operational Policy Manual.
Purpose
The purpose of this policy is to outline an injury employer's re-employment obligations, how the WSIB determines compliance with those obligations, and the applicable penalties for non-compliance.
Guidelines
Re-employment conditions
Injury employers have an obligation to re-employ their workers if the following three conditions are satisfied:
- the worker has been “unable to work” as a result of the work-related injury/disease
- the worker was continuously employed with the injury employer for at least one year before the date of injury, and
- the injury employer regularly employs 20 or more workers.
1. Unable to work
Workers are considered unable to work if, because of the work-related injury/disease, they:
- are absent from work
- work less than regular hours, and/or
- require accommodated work that pays, or normally pays, less than their regular pay, regardless of whether the injury employer reimburses a worker for an actual loss of earnings or not.
An injury employer’s decision to pay advances is not relevant to whether a worker has been “unable to work”.
“Unable to work” does not include a worker who loses time/earnings from work to attend a health care appointment.
2. One year of continuous employment before the date of injury
Workers who are hired one year or more before the date of injury are considered to be continuously employed, unless the year was interrupted by a work cessation intended by the worker or the injury employer to break the employment relationship.
Generally, the WSIB finds that the following types of work cessation do not break the employment relationship:
- strikes and lock-outs
- sabbaticals, sick leaves, parental leaves, leaves of absence, and vacations
- work-related injuries/diseases resulting in time off work
- layoffs of less than three months, if it is shown that the intention of the workplace parties was for the worker to return to work for the injury employer, or through a union hall’s hiring process, or
- layoffs of more than three months, if the recall date was stipulated, and the recall occurs.
3. Employer regularly employs 20 or more workers
Generally, the number of workers employed by the injury employer on the date of injury is considered the number of workers regularly employed. For more information about determining the date of injury, see 11-01-04, Determining the Date of Injury.
In cases where the injury employer has numerous geographically distinct plants or branches, or employs workers who work outside Ontario or outside of Canada, only workers whose earnings must be reported to the Ontario WSIB for premium purposes are included when determining the number of workers regularly employed.
With respect to injury employers in Schedule 2, the total number of workers employed in Ontario by a Schedule 2 employer on the date of injury is considered the number of workers regularly employed.
Re-employment obligation
If the re-employment conditions as outlined above have been met, an injury employer’s re-employment obligation starts when it receives notice that a worker is medically able to perform the essential duties of either their pre-injury employment, or suitable work.
Notice may be provided to the injury employer by the worker, the worker's treating health professional(s), and/or the WSIB.
Obligation - worker fit for essential duties
When the worker is medically able to perform the essential duties of their pre-injury work (with or without accommodation), the injury employer is required to:
- offer to re-employ the worker in the position that the worker held on the date of injury, or
- offer to provide the worker with alternate employment of a nature and at earnings comparable to the worker’s job on the date of injury.
Obligation - worker fit for suitable work
When the worker is medically able to perform suitable work (with or without accommodation), and is unable to perform the essential duties of their pre-injury work (with or without accommodation), the injury employer is required to offer the worker the first opportunity to accept suitable work that may become available with the injury employer.
If the re-employment obligation has commenced and the injury employer receives subsequent notice that a worker’s level of fitness to return to work has changed, the re-employment obligation also changes to correspond with the worker’s changed fitness level.
Ongoing nature of the re-employment obligation
Because the re-employment obligation is ongoing, the injury employer must offer work that is most similar in nature and earnings to the worker’s pre-injury job. This obligation applies every time a more similar job becomes available, throughout the period of the re-employment obligation.
Duration of re-employment obligation
The injury employer is obligated to re-employ the worker until the earliest of:
- two years from the date of injury
- one year after the worker is medically able to perform the essential duties of their pre-injury work, or
- the date on which the worker reaches 65 years of age.
The earliest applicable date may change if there is an improvement or deterioration in the worker’s level of impairment (e.g., worker has a recurrence and moves from being fit for essential duties to only being capable of suitable work).
Worker severs the employment relationship
In cases where a re-employment obligation exists, but the worker voluntarily quits their job, no further re-employment obligation will generally apply.
Accommodation requirements
Injury employers with re-employment obligations have a duty to modify the work to accommodate the needs of the worker to the extent that the accommodation does not cause the employer undue hardship. If the injury employer has control of the workplace, they also have a duty to modify the workplace as required by the worker, to the extent of undue hardship.
If a worker can perform or fulfill the essential duties of their pre-injury job with accommodation, or a job becomes available that can be made suitable through accommodation, and the accommodation does not cause the injury employer undue hardship, the employer must provide the accommodation to allow the worker to continue in or return to work. A worker’s accommodation requirements may be temporary or permanent.
For more information, see “Duty to accommodate” and “Undue hardship”, in 19-02-07, RTW Overview and Key Concepts.
Determining a worker’s ability to work
The worker's ability to work can be determined based on the workplace parties’ review of relevant information regarding the worker’s functional abilities, or through a decision by the WSIB, either on its own initiative or by request of either workplace party. See 19-02-07, RTW Overview and Key Concepts for more information about determining the worker’s ability to return to work, and the use of the WSIB’s “Functional Abilities Form for Planning Early and Safe Return to Work”.
In some cases, the workplace parties may be unsure or unable to agree on whether the worker can return to some form of work, and if so, whether the worker is fit for essential duties of the pre-injury job, or fit for suitable work. Either party can contact the WSIB, and the WSIB will:
- assist them to reach consensus on the issue, or
- make a determination as to the worker’s level of fitness to return to work, and
- promptly give the workplace parties written notice of the determination.
Since the worker's level of fitness for work can change over time, the workplace parties and the WSIB monitor the worker's fitness level to ensure that appropriate re-employment activities occur at appropriate times.
Determining fitness for essential duties
In cases where the worker is off work entirely, or back to suitable work, the workplace parties and/or the WSIB determine whether the worker is medically able to perform the essential duties of their pre-injury job.
To determine the essential duties of a worker's pre-injury job, the duties that are necessary to achieve the actual job outcome are considered. The "job outcome" is the overall objective of the job in terms of the production of the final product or provision of service. In addition, other factors that are considered include, but are not limited to, the following:
- how often each duty is undertaken
- the proportion of time spent at each duty
- the effect on the job outcome if a duty is removed
- the effect on the work process before or after a duty, if a duty is removed
- the current job description, and
- the normal productivity expected in the job. This refers to the rate, range or level of production or service expected for the job.
In some cases, the worker’s functional abilities may prevent them from performing a duty (duties) necessary to achieve the pre-injury job outcome, or limit their rate, range or level of production. The workplace parties and/or the WSIB consider whether an accommodation may allow the worker to perform the duty (duties) as required. If so, the employer must provide the accommodation unless it causes undue hardship, and the determination is made that the worker is fit for the essential duties of their pre-injury job.
When a worker is fit for the essential duties of the pre-injury job with accommodation, the work or workplace accommodation offered must also be safe and consistent with the worker’s functional abilities.
Determining if an alternate job is comparable
When the worker is fit for the essential duties of their pre-injury job (with or without accommodation), if the injury employer does not offer to re-employ the worker in the position that the worker held on the date of injury (with accommodation if necessary), then the employer must offer to provide the worker with an alternate job of a nature and at earnings comparable to the worker’s job on the date of injury.
When determining if an alternate job offered is comparable to the pre-injury job, in addition to comparable earnings, the WSIB may consider a number of other factors, including:
- job duties to be performed
- skills, qualification and experience required
- degree of physical and mental effort required
- level of responsibility and supervision of other employees
- rights and privileges associated with the position
- bargaining unit status
- geographic location of the alternative worksite
- hours of work, working conditions, and right to work overtime, and
- employee benefits including but not limited to vacation, health care, life insurance, and pension benefits.
Any one factor may be more or less important in a particular case depending on the circumstances.
Any alternate job offered must also be considered safe, productive, and consistent with the worker’s functional abilities. For further information, see “Suitable work” in 19-02-07, RTW Overview and Key Concepts.
Determining fitness for suitable work
If the worker is not fit to perform the essential duties of pre-injury job (with or without accommodation), the workplace parties and/or the WSIB determine if the worker is fit to return to suitable work. This is determined by comparing the worker’s functional abilities and limitations to the demands of the job. If the worker is fit to return to suitable work, the injury employer must offer the first suitable work that is or becomes available.
Suitable and available work
Suitable work means post-injury work that is safe, productive, and consistent with the worker's functional abilities, and that restores the worker's pre-injury earnings to the greatest extent possible.
The factors the WSIB examines to determine if suitable work is “available” at the pre-injury worksite, or at another worksite, include but are not limited to:
- whether a job vacancy has been posted, advertised or otherwise communicated, or
- evidence of hirings or transfers that occur on or after the date the worker is fit for suitable work.
For further information, see “Suitable work” and “Available work” in 19-02-07, RTW Overview and Key Concepts.
Workplace party disputes over job offer
Workers and injury employers are encouraged to resolve disputes with respect to a job offer on their own. This includes whether:
- an offered accommodation to the pre-injury job suits the worker’s needs
- an alternate job offered is comparable to the pre-injury job, or
- the job offered is suitable.
If the workplace parties are not successful in resolving a dispute, they must notify the WSIB. The WSIB will assist the workplace parties to reach agreement on the specific issue, or make a determination with respect to the job offer.
WSIB finds the job offer is appropriate
If the WSIB determines that the specific job offered is appropriate, the WSIB informs both parties of its decision. The WSIB will generally adjust the worker's wage loss benefits based on the earnings of the offered job, as of the date of the worker’s next available shift. If the worker declines to return to the job offered, the injury employer’s re-employment obligation ends.
WSIB finds the job offer is not appropriate
If the WSIB determines that the specific job offered is not appropriate, the WSIB informs both parties of its decision. The WSIB will generally continue to pay the wage loss benefits as long as the as the worker continues to demonstrate co-operation with the injury employer and the WSIB in the RTW process.
Depending on the worker’s fitness level, the injury employer must:
- consider other accommodations to the pre-injury job, short of undue hardship
- offer the worker another job that is most comparable in nature and earnings to the worker’s pre-injury job, or
- continue to attempt to identify a suitable job that is available, or becomes suitable through accommodation short of undue hardship.
Special cases
There are a number of special circumstances that impact the injury employer’s obligation to re-employ their workers who have been unable to work due to a work-related injury/disease.
Fixed term contract workers
The injury employer of a fixed term contract worker is only required to re-employ the worker in the pre-injury job, an alternate job that is comparable, or suitable work, for the remainder of the fixed term employment contract that was interrupted by the work-related injury/disease.
However, in cases where an injury employer has routinely extended or renewed a worker’s fixed term employment contract in the past, with no actual break in employment, the WSIB may conclude that the re-employment obligations extend beyond the end of the fixed term employment contract for the normal duration of the re-employment obligation.
Emergency workers
If an emergency worker is the employee of a regular employer covered under the WSIA and receives benefits under 12-04-03, Emergency Workers, the regular employer is responsible for complying with the re-employment obligation.
The deemed (emergency) employer however, reimburses the regular employer for the costs of meeting the re-employment obligation.
The above guidance applies to a member of a municipal volunteer brigade, a volunteer ambulance brigade, or an auxiliary member of a police force under 12-04-02, Volunteer Forces, as these workers are considered as though they are emergency workers for re-employment purposes.
Seasonal employment
The WSIB reviews the past hiring practices of the injury employer to determine whether the employer intended to continuously employ the seasonal worker for the purposes of establishing if the condition of one year of continuous employment before the date of injury has been met.
If the workplace parties or the WSIB questions whether the number of workers employed on the date of the worker’s injury fairly represents the number of workers regularly employed, the WSIB determines the average number of workers employed in each of the 12 or fewer months that make up the full regular season of the injury employer’s operation before the date of the injury. If there are 20 or more workers in the majority of the months of the full regular season, the 20 or more workers re-employment condition is considered to have been met.
When calculating the length of the re-employment obligation period, the off-season period is not excluded. However, during the off-season period the injury employer’s re-employment obligation is not in effect, nor is the employer subject to a re-employment penalty.
Temporary employment agencies
The re-employment obligation applies to temporary employment agencies if the worker was continuously on the temporary employment agency’s placement roster for at least 12 months prior to the date of injury. It is not necessary that the worker be continuously on work assignments during this period.
A temporary employment agency meets the re-employment obligation to offer the pre-injury job, or an alternate job that is comparable, by returning the worker to the employment placement roster for normal rotation to job assignments. The temporary employment agency meets the re-employment obligation to offer suitable work by returning the worker to the employment placement roster and attempting to place the worker in the first opportunity for suitable work that becomes available.
Successor employers
Following the sale or transfer of a business that employs workers covered under the WSIA, the question of whether a re-employment obligation attaches to a successor employer depends on whether the successor employer is the same legal entity as the original employer.
If the successor employer is the same legal entity as the original employer, re-employment obligations generally attach to the successor employer. On the other hand, if the successor employer is a different legal entity than the original employer, re-employment obligations generally do not attach to the successor employer.
Complying with re-employment obligations
At the worker's request, or on its own initiative, the WSIB can review whether an injury employer has fully complied with their re-employment obligations.
To conduct this review, the WSIB determines if the injury employer:
- has been notified of their re-employment obligations
- made appropriate offer(s) of the pre-injury job, an alternate job that is comparable, or suitable work that is available
- made appropriate job offers at times required
- accommodated the work and/or workplace as necessary, to the extent of undue hardship, and
- maintained employment for the duration of the re-employment obligations.
Failure to comply with re-employment obligations may result in penalties for the injury employer and wage loss payments to the worker.
The WSIB reviews the specific facts of each situation but generally does not levy re-employment penalties in circumstances such as terminations for reasons not connected to the injury/disease or work cessations that are not intended by the worker or the injury employer to break the employment relationship (e.g., strikes, sick or parental leaves, temporary or seasonal lay-offs).
Terminations - presumption
If the worker is terminated while the re-employment obligation is still in effect, the WSIB can examine the circumstances to determine whether the termination was related to the work-related injury/disease and represents a breach of the injury employer’s re-employment obligation.
The WSIB presumes the injury employer has not fulfilled their re-employment obligations when a worker is terminated within six months of being re-employed, and the re-employment obligation is still in effect. Workers have three months to ask the WSIB to investigate non-compliance. If the request is made after three months, the WSIB is not required to investigate, but may choose to do so. The WSIB may investigate on its own initiative at any time.
Injury employers can rebut the presumption by showing that the termination was not caused in any part by the work-related injury/disease and related absences from work, treatment for the work-related injury/disease, or the claim for benefits. When a rebuttal is successful, the WSIB will not levy a re-employment penalty. However, if the worker continues to experience a loss or earnings due to the injury/disease, they may be entitled to LOE benefits and RTW services, see 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review).
Re-employment penalties for employers
When the WSIB is considering levying a re-employment penalty, the WSIB informs the injury employer about their obligation to re-employ the worker, and identifies the specific requirement they are failing to meet, along with the possible penalty for non-compliance. This is done verbally, where possible, and in writing.
If the injury employer remains non-compliant, the WSIB notifies the employer that a penalty is to be levied for a breach of their re-employment obligations. The penalty is applied as of 10 calendar days after the date of the written notice.
If the injury employer breaches their re-employment obligations at different times in the same claim, the WSIB may levy more than one penalty.
Amount of the penalty
Generally, the WSIB levies a re-employment penalty based on the amount of the worker’s actual net average earnings (NAE) for the year before the injury. This amount is not subject to the ceiling used in the calculation of LOE benefits.
The re-employment penalty is an amount owing to the WSIB in addition to the actual costs of ongoing benefits and services in the claim that are included in the injury employer's claims experience.
When applying a re-employment penalty, the penalty is apportioned based on the length of the remaining obligation period at the time the breach occurs.
Reducing the penalty
The WSIB may reduce the penalty for injury employers who have breached their re-employment obligations but subsequently come into full or partial compliance:
- If the injury employer subsequently comes into full compliance and continues to comply fully for the remainder of the obligation period, the penalty will be based on the number of weeks the employer did not meet their re-employment obligations.
- If the injury employer subsequently comes into partial compliance the penalty may be reduced by 50% if the employer offers suitable work at no wage loss, or by 25% if the employer offers suitable work at a wage loss. The penalty is only reduced if the employment is maintained for the remainder of the obligation period.
For information about re-employment penalties applicable to the construction industry, see 19-05-04, Re-employment Penalties and Payments—Construction Industry.
Concurrent co-operation and re-employment obligations
If an injury employer breaches co-operation and re-employment obligations during overlapping periods in the same claim, the WSIB will apply a single penalty. In these cases, the WSIB will levy the higher penalty, see 19-02-08, RTW Co-operation Obligations.
Payments to workers
When the injury employer fails to fully comply with their re-employment obligations, the WSIB may issue re-employment payments or pay LOE benefits to the worker, depending on the worker's level of fitness for work.
Loss of earnings benefits – fit for accommodated pre-injury or suitable work
If a worker is medically able to perform the essential duties of the pre-injury job with accommodation or is only able to perform suitable work, and the injury employer fails to comply with their re-employment obligations, the WSIB pays LOE benefits to the worker from the date the re-employment obligation was breached.
Full LOE benefits are paid as long as the worker has not returned to work, and co-operates in health care measures and appropriate RTW services, even if these services extend beyond the date the re-employment obligations come to an end.
Re-employment payments - fit for pre-injury work (without accommodation)
If a worker is medically able to perform the essential duties of the pre-injury job without accommodation, they may no longer be entitled to LOE benefits. However, if the injury employer fails to comply with their re-employment obligations, the WSIB may issue re-employment payments to the worker.
Re-employment payments are equal to LOE benefits (i.e., 85% of a worker’s pre-injury net average earnings) and are paid from the date the re-employment obligation was breached. Re-employment payments are issued for up to one year from the date of the breach, or until the end of the re-employment obligations (whichever comes first), if the worker has not returned to work and co-operates in appropriate RTW services.
Application date
This policy applies to all decisions made on or after November 30, 2020.
Policy review schedule
This policy will be reviewed within five years of the application date.
Document History
This is a new document.
This document replaces, in part, 19-02-02 dated January 2, 2015.
References
Legislative Authority
Workplace Safety and Insurance Act, 1997, as amended
Sections 21, 23, 33, 37, 40, 41, 42, 43, 70, 71, 77, 86, 146
O. Reg. 35/08
Human Rights Code, R.S.O. 1990, c. H.19
Minute
Administrative
#3, October 22, 2020, Page 578