Concurrent employment can bring WSIB claim headaches
The fact that many employees are working more than one job can present interesting challenges if that worker has a work-related accident with one employer but is losing time from both. It also brings up issues regarding the obligations an employer has to accommodate disabled workers under the Workplace Safety & Insurance Act (WSIA) regardless of if they are the “Accident Employer” or not.
An employer had a part-time worker who was injured while working for them, making them the Accident Employer. Unbeknownst to the employer, this worker had concurrent employment with another company on a part-time basis.
While the employer offered modified work and was accommodating the worker to try to save costs under WSIB, the concurrent employer was not. This resulted in loss of earnings (LOE) benefits being paid out to the worker by the WSIB and charged to the employer who, as the Accident Employer, became responsible for these additional costs even though it was as a result of the concurrent employer’s actions.
The WSIB has deemed that the Concurrent Employer in this case was excluded from the obligations under Policy 19-02-02 (Work Reintegration and Re-Employment).
In the submission to the Appeals Division at WSIB, it was argued that a Schedule 1, Concurrent Employer should be party to the WSIB’s work reintegration responsibilities under Policy 19-02-02, as OPM Policies are governed by the WSIA.
To support the argument, it was noted that the WSIB operates under a no-fault system, which provides that regardless of who may be responsible for an incident, employers are protected from other liability. We believe this should include protection from negligence on the part of Concurrent Employers. Since the Accident Employer is financially responsible for workplace injury claim costs, the current interpretation of Policy 19-02-02 and the exclusion of Concurrent Employers from these responsibilities not only places Accident Employers at a financial disadvantage. It also is in contravention of WSIB’s “no-fault” system.
Human Rights perspective
One can also look at this situation in relation to Human Rights legislation. Under subsection 10(1) of the Human Rights Code, a person who claims or receives benefits under the WSIA is deemed to have a disability for the purposes of the Code. Therefore according to the Code, if a person with a disability requires accommodation to perform the essential duties of a job, “the employer must provide accommodation unless to do so would cause the employer undue hardship.”
Interestingly, WSIB Policy 19-02-02 indicates the following in regards to accommodation:
All employers have a duty to modify the work or the workplace to accommodate the needs of the worker to the extent of undue hardship. This duty arises through the:
- Obligation to re-employ set out in the Workplace Safety and Insurance Act, 1997 and/or
- The Ontario Human Rights Code or the Canadian Human Rights Act.”
Finally, the WSIB Policy 11-01-03 (Merits and Justice) states:
In situations where the application of a relevant policy would lead to an absurd or unfair result, a case manager may depart from said policy.”
Taking this into consideration we can only conclude that current interpretation of Policy 19-02-02 to exclude Concurrent Employers from Work Reintegration and Re-Employment obligations can only lead to a prejudicial outcome, placing Accident Employers in a disadvantaged position. If the Code has primacy over conflicting legislation and policy, then the WSIB – as an administrative body – has a responsibility and jurisdiction to review the policy in question and apply the Code to ensure compliance.
It was argued that by removing this obligation from Concurrent Employers, it essentially provides an opportunity for them to ignore duties under both the WSIA and section 5 of the Human Rights Code, especially in situations when administrative bodies are not monitoring workplace parties for compliance. It also inadvertently allows workers the opportunity to both disregard their obligations and unfairly take advantage of the PLOE paid by the Accident Employer.
What is the result?
What was the outcome of this? You will have to wait and see as the final decision from the Appeal Division of the WSIB is pending.
What can we learn from this experience?
It is important to understand the full employment history and current situation for each of your employees. A quick review of the monthly cost statement also revealed the LOE benefits were being paid while the worker was supposedly fully accommodated by the injury employer.
Lastly, offering modified duties to cover the time lost at the Concurrent Employer is a strategy that has been used in the past if appealing to the WSIB to hold the Concurrent Employer accountable doesn’t work.
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