There are a lot of moving parts when managing a WSIB claim, especially one that has become prolonged or complex. Most employers are aware that ensuring their company is compliant with Health & Safety best practices will likely result in reduced workers’ compensation costs. The same can be said with respect to important Human Resources practices and procedures. The problem is that busy claims managers sometimes lose sight of this while they attempt to juggle all the moving pieces of a claim.
Here’s one tip that may help save busy HR professionals from incurring needless costs:
Filling in record of employment form correctly:
Record of Employment or ROE is a form that employers complete for employees receiving insurable earnings who stop working and experience an interruption of earnings. The ROE is the most important document related to accessing the Employment Insurance (EI) program. Regardless of whether the employee intends to file a claim for EI benefits, an employer must issue an ROE when:
- An employee has had, or is anticipated to have, seven consecutive calendar days with no work or no insurable earnings from the employer. This is called the seven-day-rule.
- An employee’s salary falls below 60 percent of their regular weekly earnings because of illness, injury, quarantine, pregnancy, the need to care for a newborn child placed for the purposes of adoption, the need to provide care or support to a family member who is ill with a significant risk of death, or the need to for a parent to care for a critically ill child.
If an employer issues a hard-copy ROE, it must be issued within five calendar days of the first day of an interruption of earnings, or the day the employer becomes aware of an interruption of earnings.
Connection to the WSIB’s re-employment obligation:
WSIB policy states employers have an obligation to “re-employ” their injured workers when a claim closes as long as certain criteria are met. This is known as the re-employment obligation. If a worker is medically able to come back to work, the employer is required to offer to “re-employ” the worker in the position that they held on the date of injury or offer to provide comparable work in both nature and earnings.
In situations where a worker may not be medically capable of returning to their pre-injury job, but can do suitable work, the re-employment obligation requires employers to offer the worker the first opportunity to accept suitable employment that may become available. However, if the employer does not have suitable work available at that time, the obligation still applies every time a suitable job becomes available throughout the period of the re-employment obligation.
In order to enforce this policy, the WSIB levies penalties on employers who are in breach of their obligation. If a worker is terminated within the first six months of the re-employment obligation, WSIB will automatically presume that the employer did not fulfill the obligation. Generally, the penalty is based on the worker’s actual net average earnings for the year before the injury and is not subject to a ceiling.
What if worker incorrectly maintains they have been terminated within the first six months?
There are many times when a claim can become contentious. Perhaps the employer feels the injury was never work-related, there may have been return to work issues, one of the workplace parties may have been non-cooperative, or there could have simply been a misunderstanding. Whatever the reason, what do you do if a worker states maintains that they have been terminated and yet was not?
Even though WSIB will automatically presume a breach to the re-employment obligation within the first six months, they will allow the employer a chance to rebut the accusation before they determine whether to levy a penalty. Under policy, it is the employer’s responsibility to prove a breach did not occur.
This is where the Record of Employment (ROE) comes into play! By submitting an issued ROE indicating the worker remains off work for medical reasons (Code D) as opposed to being terminated (Code M), the WSIB will consider this sufficient proof that the employer did not breach their re-employment obligation.
A worker received loss of earning (LOE) benefits from the WSIB for a workplace injury because the employer did not have modified work suitable for the worker’s restrictions and limitations. The WSIB later determined the worker’s compensable injury recovered and terminated her benefits. However, the worker continued to have limitations and restrictions related to a non-compensable, pre-existing condition.
The worker in question did not understand that her employer still did not have suitable modified work available for her and that she now needed to apply for E.I. benefits. The worker also had not heard from her employer regarding her employment status and told her WSIB case manager that she thinks her employer may have fired her.
To rebut the accusation, the employer provided the WSIB with a copy of the ROE issued when the worker started to receive LOE benefits (under the seven-day-rule). That ROE indicated the worker experienced an interruption of earnings (LOE benefits) due to medical reasons (Code D). The employer further explained that no other ROE (such as one stating the worker was dismissed or Code M was issued, proving the employer did not terminate the worker. From the employer’s perspective, the worker merely continued to remain off work for medical reasons.
Ultimately, the WSIB agreed that the employer was not in breach of their re-employment obligation and the company was saved from being levied with a significant penalty.
Bringing it all together:
- Staying on top of regular HR practices, even as something as common as a Record of Employment, can help save you from needless WSIB costs.
- Maintaining regular contact with injured workers can help alleviate potential misunderstandings about return to work or a worker’s employment status.
- Do not be afraid to discuss your concerns with WSIB.
- Recognize if you cannot continue to manage a claim and seek expert advice in order to avoid a re-employment obligation breach.
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