Interim changes to the work reintegration policies under the Workplace Safety and Insurance Act came into force recently. The new work reintegration policies formally integrate existing policies on early and safe return-to-work, re-employment and labour market re-entry. These interim work reintegration policies enhance the Workplace Safety and Insurance Board (WSIB) early return-to-work program in force as of December 1, 2010, but are subject to a consultation period until February 15, 2011.
The new work reintegration policies are an integrated set of guidelines aimed at ensuring a worker’s opportunities for successful return to work (RTW) and are consistent with the Act and human rights legislation. The WSIB is now involved much earlier in the process and guided by the following principles:
- Appropriate, early RTW that maintains the dignity and productivity of a worker
- Early support and intervention by all concerned parties (employer, employee, WSIB and health practitioner) to respond to recovery and RTW barriers
- Maximizing opportunities for RTW with the original employer, including retraining for a suitable occupation with that employer
- Providing the worker with meaningful input and choice in relation to the programs offered
The return-to-work process starts as soon as the employer learns of a workplace-related injury. The WSIB expects the employer and the worker to both co-operate in identifying and undertaking RTW opportunities within the workplace, failing which the WSIB may impose significant penalties or withhold benefits for those not co-operating.
The WSIB’s role in work reintegration includes providing education and advice, case management, RTW coordination, health recovery support, accommodation assistance, dispute resolution and ensuring compliance with co-operation and re-employment obligations and work transition services. Moreover, qualified WSIB staff will manage injured workers’ pathways to re-employment. The new program will provide injured workers with a sound assessment and training if required that will achieve the goal of equipping workers to return to work with their original employer or in the general labour market.
The WSIB has established the following hierarchy as an order of preference for RTW:
- Pre-injury job with original employer
- Pre-injury job with original employer, with accommodation if required
- Work comparable in nature and earnings to pre-injury job with original employer, with accommodation if required
- Alternate suitable work with original employer, with accommodation if required
- Work comparable in nature and earnings to pre-injury job in the labour market, with accommodation if required, or
- Alternate suitable work in the labour market, with accommodation if required
Suitable work is defined as both available and sustainable work that can come from post-injury work or the worker’s pre-injury job as long as it is safe, productive and consistent with the worker’s functional abilities. The goal is to restore the worker’s pre-injury earnings.
The WSIB defines available work as it relates to the original employer as work that exists at the pre-injury worksite, or at a comparable worksite arranged with the original employer. The WSIB looks at objective workplace criteria to establish availability. For post-injury work to be “sustainable”, there must be a reasonable prospect that it will be available on a long-term basis with the original employer. Unless the post-injury work is sustainable, it is unlikely to be considered the best RTW alternative.
If sustainable work is not available with the original employer, the WSIB will consider sustainable and available work in the general labour market. To qualify as such, the worker must have a reasonable chance of obtaining employment with average or good employment prospects.
Work transition and suitable occupation
When the workplace parties have been unsuccessful in arranging a return to work with the original employer as set out in the above process, the WSIB provides a work transition (WT) assessment to determine what specialized assistance a worker requires to enable a RTW with the original employer or, if necessary, in a suitable occupation (SO) that is available in the labour market. This policy replaces the Labour Market Re-entry program.
Work transition activities may include literacy and basic skills ESL training, academic upgrading, vocational skills training, training on the job, job search training, employment placement services and work trials. The WSIB pays directly all expenses it considers appropriate to enable the worker to engage in WT assessments and subsequent WT activities. The original employer is not liable for the WT expenses.
Once the WT activities have been achieved, the SO must be found shortly thereafter. The SO is a category of jobs suited to the worker’s transferable skills that are safe, productive and consistent with the worker’s functional abilities. The goal there is also to restore the worker’s pre-injury earnings.
Work transition assessments are generally provided between six and nine months from the date of injury. Work transition plans will not generally exceed three years in duration, and will be developed based on the circumstances of the worker.
The new work reintegration policies do not make any changes to the re-employment obligations but reaffirm and clarify the specific responsibilities of the parties the RTW process (employers, employees, WSIB and health practitioners), specifically the employer’s re-employment obligations.
In addition to the employer’s obligation to co-operate in the above RTW process, employers have an obligation to re-employ an injured worker who has been unable to work as a result of the work-related injury or disease 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 employed with the employer for at least one year before the date of injury
- The employer regularly employs 20 or more workers
When a worker is medically able to return to work and perform the essential duties of the pre-injury employment, the employer is required to offer to the worker his or her pre-injury job. If the worker is unable to reintegrate into the pre-injury job, the employer must offer the worker the first available suitable employment.
This re-employment obligation continues until the earliest of:
- Two years after the date of injury
- One year after the worker is medically able to perform the essential duties of the pre-injury employment, or
- The date the worker turns 65 years old
Employers should note that if a worker is terminated within six months of being re-employed, the WSIB presumes the employer has not fulfilled the re-employment obligation. Employers may rebut this presumption by showing the termination was not caused in any part by the work-related injury or disease, treatment for the work-related injury or disease or the claim for benefits.
Note that there are different rules for the construction industry.
Re-employment obligations in the construction industry
Employers in the construction industry are subject to industry-specific re-employment obligations. The definition of which construction employees are covered by re-employment obligations is broad, including activities integral to construction such as supervising, surveying, estimating, engineering or overseeing health and safety.
The construction employer’s obligation to re-employ begins when it is notified that the injured construction worker is medically able to perform:
- The essential duties of his or her pre-injury job
- Suitable construction work, or
- Suitable non-construction work
The employer must offer to re-employ the injured worker in the first available job that is consistent with the worker’s medical ability to return to work.
In all cases where the worker is medically able to perform some type of construction work, an employer who has more than one construction job available must offer to re-employ the worker in the construction job that is most similar in nature and earnings to the one the worker had on the date on injury.
The construction employer’s duty to re-employ continues until the earliest of:
- Two years from the date of injury
- One year after the worker is medically able to do the essential duties of the pre-injury job
- The date the worker declines an offer of work, or
- The date the worker turns 65 years old
Duty to accommodate
All employers have a duty to modify the workplace to accommodate the needs of an injured worker up to the point of undue hardship. The WSIB refers to the accommodation policies of the Ontario Human Rights Commission to assess undue hardship. The threshold required to constitute undue hardship is relatively high.
Penalties for violations to re-employment obligations and RTW
Penalties can be significant. Employers may be penalized if the WSIB determines that they are not fulfilling their re-employment obligations. Employers can be fined up to the equivalent of the worker’s net average earnings for the year before the injury. And the WSIB may make payments to the worker as if the worker were entitled to loss of earnings benefits
If non-cooperating employees violates their RTW obligations, and the WSIB determines that they are not co-operating in the RTW process, the WSIB may reduce, suspend or stop the worker’s loss of earnings benefits.
For more information from the WSIB, see the following topics on the board’s website:
The stakeholders’ report that brought about the changes can be found here, under the heading Key engagement findings.
During the consultation period ending February 15, 2011, the WSIB is especially interested in views regarding clarity of the policies, the suggested approach taken and their usefulness in supporting the return-to-work efforts of the workplace parties. Send written submissions to:
Director, Benefits Policy
Workplace Safety and Insurance Board
200 Front Street West, 10th floor
Toronto, Ontario M5V 3J1
Email: [email protected]
Telephone: (416) 344-2344
Ontario employers should review their current return-to-work policy to ensure consistency with the new WSIB work reintegration policies, particularly in light of the significant penalties in cases of non-compliance. To help employers review their return to work process and policies, check out HRinfodesk.com or The Human Resources Advisor or the Human Resources PolicyPro published by First Reference Inc.
First Reference Human Resources and Compliance Managing Editor