The Office of the
Employer Adviser
Return to Work in the
New World of Work Reintegration
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OEA
• Advise, represent, educate employers on WSIB & Section
50 related issues
• www.employeradviser.ca
• Fact sheets on various Workplace Safety & Insurance
issues
• Employer’s Guides
• Webinars
• Regular email updates
• The OEA On Twitter: @askoea
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Work Reintegration
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Final policies effective July 15, 2011
Combines RTW, re-employment and LMR
New expectations for employer participation
New employer non-cooperation penalties
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Work Reintegration (WR)
Principles
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Maintain dignity and productivity of workers
Early Board intervention and support
Focus on injury employer
Offer workers high quality and practical WT programs
Enforce WSIA obligations
Application of Human Rights Act standards
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Return to Work Process
• Employer involved in WR when learns about injury/
disease
• Employers and workers need to take specific steps
• The WPP and the process adapt to changes
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RTW Co-operation Obligations
• Initiate early contact
• Maintain appropriate communication during worker’s
recovery
• Identify and secure RTW opportunities for the worker
• Give WSIB relevant information about worker’s RTW
• Notify the WSIB of disputes over worker’s RTW
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The Board’s Role
• Meet with WPPs at the worksite within 12 weeks after
the date of injury if parties unable to arrange suitable
and available work
• WSIB proactively engages appropriate medical
support
• Help worker overcome his/her health recovery barrier
• Provide dispute resolution services
• Enforces WPP obligations
• Provides Work Transition (WT) if WPP unsuccessful
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RTW Hierarchy
• Pre-injury job with the injury (accident) employer
• Pre-injury job with the injury employer, with accommodation
• Work comparable in nature and earnings to pre-injury job with
the injury employer, with accommodation where required
• Alternate suitable work with the injury employer, with
accommodation where required
• Work comparable in nature and earnings to pre-injury job in
the labour market with accommodation where required
• Alternate suitable work in the labour market, with
accommodation where required
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Suitable Work
• Safe
• Consistent with the worker’s functional abilities
• Restores the worker’s pre-injury earnings where
possible
• Available
• Productive
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What is Available Work?
• Work that exists with the injury employer at the pre-injury
worksite or a comparable worksite
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Available Work Factors
• Consider applicable collective agreement
• Whether a job vacancy has been posted, advertised or
otherwise communicated, or
• Evidence of hirings or transfers on or after the date the
worker is fit for suitable work
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Does Suitable Work Have to
be Sustainable?
• Yes
• In cases where a worker has a permanent impairment
(present or likely), and his or her clinical condition is stable,
and he or she is unable to return to the pre-injury job, the
workplace parties and the WSIB consider whether the
work has reasonable prospects of being available in the
longer term
• If work lacks long term prospects likely will be found
to be unsustainable
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Duration of RTW Obligations
• Start from the date of injury
• Ends on earlier of the date
• the worker’s LOE no longer reviewable by WSIB, or
• employment relationship ends because either
• worker voluntarily quits, or
• employer terminates the employment for reasons unrelated to the work
injury/disease (and related absences from work), treatment for the work
injury/disease, or the claim for benefits
• Co-operation obligations also end when WSIB satisfied
that no current suitable work with the injury employer
exists, or will exist in the reasonably foreseeable future
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Accommodation
• WSIB expects employers to provide accommodation if it
results in suitable work becoming available
• Any modification to the work or the workplace, including
• reduced hours
• reduced productivity requirements
• provision of assistive devices
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Resolving Disputes
• If WPPs unable to resolve a dispute, the WSIB will
• assist the WPPs to reach agreement on the issue, or
• determine if offered work is suitable
• A dispute over job suitability does not mean WPPs
being un-cooperative
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Job Not Suitable
• If WSIB determines offered job not suitable
• Worker gets full LOE while co-operating with
employer and the WSIB in the WR process
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Job Is Suitable
• WSIB deems worker able to earn wages associated with
offered job
• Adjusts LOE by deducting deemed earnings from preinjury earnings whether the worker has accepted the
suitable job offer or not
• Orally informs WPPs of decision
• Confirms decision in writing
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Written Notice of Non-compliance
• Prior to making a finding of non-co-operation or reemployment breach WSIB warns WPP about penalty
• done orally (where possible) and in writing
• Non-co-operation penalties effective 7 WSIB business
days after the date of the written notice
• Small Business (< 20 workers, 14 WSIB business days)
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Summary of Penalties
Penalty starts
7 business
days from
date on
written notice
Worker
Employer
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Initial Penalty
first 14 days
of breach
50% LOE
50% LOE
Ongoing
Penalty
15th day of
breach +
100% LOE
100% LOE +
100% WT
Costs
Up to 12
Months
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Re-employment in WR
(Non-Construction Employer)
• Distinct obligation in addition to RTW
• Worker has a re-employment right if
1. worker unable to work because of a work-related
injury / disease
2. worker employed with the injury employer for at least
one year before the date of injury, and
3. employer regularly employs 20 or more workers
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Re-employment
(Construction Employer)
• Distinct obligation in addition to RTW
• Worker has a re-employment right if
1. worker unable to work because of a work-related
injury/disease
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Worker Unable to Work
• Absent from work, or
• Works less than regular hours, and/or
• Requires accommodated/modified work that pays, or
normally pays, less than his or her regular pay,
regardless of whether the employer reimburses the
worker for an actual loss of earnings or not
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Essential Duties
• If worker medically able to perform essential duties of pre-injury
job employer must
• offer to re-employ the worker in pre-injury position, or
• offer to provide the worker with work of a nature and at
earnings comparable to pre-injury job
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Suitable Work
• If worker medically able to perform suitable work (although
unable to perform the essential duties of pre-injury job)
employer must
• offer worker first opportunity to accept suitable work that may
become available with the employer
• Remember hierarchy
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Duration of Re-employment
Obligation (Non-Construction)
• Employer must re-employ worker until the earliest of
• the second anniversary of the date of injury
• one year after the worker is medically able to perform
the essential duties of his or her pre-injury
employment, or
• the date on which the worker reaches 65 years of age
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Duration of Re-employment
Obligation in the Construction
Industry
• Employer must re-employ worker until the earliest of
• the second anniversary of the date of injury
• one year after the worker is medically able to perform
the essential duties of his or her pre-injury
employment, or
• the date the worker reaches 65 years of age
• the date the worker declines an offer from the
employer
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Presumption of Breach
• WSIB presumes employer breached re-employment
obligation if worker terminated within 6 months of being reemployed
• Workers terminated within 6 months of re-employment
have 3 months to ask the WSIB to investigate breach
• WSIB not required to investigate a complaint of breach
made after 3 months
• may choose to do so
• WSIB may investigate on its own initiative at any time
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Voluntary Severance
• Re-employment obligation exists
• Worker voluntarily quits his or her job
• no further re-employment obligation will generally
apply
• Severance must be voluntary without pressure
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Re-employment Duty To
Accommodate
• Employers have duty to accommodate work and or
workplace
• This duty arises through
• s. 41(6) 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
• Construction Regulation, and/or
• the Ontario Human Rights Code (the Code) or the
Canadian Human Rights Act
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Undue Hardship
• Undue hardship assessed on following factors
• cost (may be assistance for small employers)
• outside sources of funding, if any
• health and safety requirements, if any
• Excluded factors
• business inconvenience
• employee morale
• collective agreements
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Cost of Undue Hardship
• Costs constitute undue hardship if they are
• quantifiable
• shown to be related to the accommodation; and
• so substantial would alter the essential nature of the
enterprise, or
• so significant would substantially affect viability of
business
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Re-Employment Penalty
• Re-Employment penalty based on the worker’s actual
pre-injury net average earnings
• Penalty applied 7 WSIB business days after the date
of written notice
• Penalty may be reduced by
• 50% if the employer subsequently offers suitable
work at no wage loss, or
• 25% if the employer offers suitable work at a wage
loss if employment is maintained for the
remainder of the obligation period
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Re-Employment Payments
• Workers whose re-employment rights breached get
• re-employment payments equal to LOE benefits, i.e.,
85% of a worker’s pre-injury NAE
• re-employment payments paid up to one year, or the
end of the re-employment obligation (whichever comes
first) if
• worker hasn’t returned to work with another
employer, and
• is available for and co-operates in a WT plan or a
RTW placement program
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Concurrent WR and
Re-Employment Obligations
• An employer that breaches both a co-operation and reemployment obligation in the same claim will get a
single penalty
• The WSIB will choose the penalty which will most likely
lead to a positive RTW outcome for the worker
• If breached at different periods in claim, may get more
than one penalty
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Work Transition Assessment…
• Considered when WPPs unsuccessful in RTW efforts
• WSIB provides a work transition (WT) assessment
• Determines what specialized assistance a worker
needs to enable RTW with injury employer or,
• if necessary, a suitable occupation (SO) that is
available in the labour market
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…WT Assessments
• Considered for workers who
• have or likely to have a permanent impairment
• incapable of performing the pre-injury job, and
• where employer unable to provide suitable and
sustainable work, or
• the employer has identified a job but it is unclear if the
work is suitable
• Generally provided between 6 and 9 months following
the date of injury
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Determining a SO
• WSIB works with WPPs and considers
• worker’s functional abilities
• worker’s employment-related aptitudes, abilities, and
interests
• what jobs are available with the injury employer
through direct placement, accommodation, or
retraining
• labour market trends, and likelihood of worker
securing and maintaining work within the occupation
with another employer
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Work Transition Plans
• WT plan outlines the assistance and services worker
needs to RTW with the injury employer in identified
suitable and sustainable work or to re-enter the labour
market in SO
• Worker given choices regarding specific
education/training providers and programs
• WSIB does not offer a WT plan if it would not
reasonably increase the worker’s prospects for
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employment in a SO
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Training on the Job (TOJ)
• A TOJ program is hands-on training at an employer’s
work site
• worker learns and acquires new skills specific to their
identified SO
• WSIB arranges TOJ and a training plan for the worker
which includes measurable goals/milestones
• intention is to lead to long term employment
• TOJ suitable for workers who are experiential
learners and do not require extensive or technical
training program to enable a RTW in the identified SO
• TOJ generally run from 4 to 26 weeks
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55+ Workers
• Workers aged 55 and over who require a WT plan have two
options
• participating in a WT plan aimed at achieving the SO, or
• choosing a 12 month Transition Plan (TP) focused on self
directed WR
• A self directed TP option is in conjunction with an irrevocable
no review option
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WR Acronyms
JST
LMI
MTCU
OD
SO
TOJ
TP
WPPs
WR
WT
WTS
JOB SEARCH TRAINING PROGRAM
LABOUR MARKET INFORMATION
MINISTRY OF TRAINING, COLLEGES, AND UNIVERSITIES
OCCUPATIONAL DISEASES
SUITABLE OCCUPATION
TRAINING ON THE JOB PROGRAM
TRANSITION PLAN
WORKPLACE PARTIES
WORK REINTEGRATION
WORK TRANSITION
WORK TRANSITION SPECIALIST
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Thank You!
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Office of the Employer Adviser
1-800-387-0774
ask.oea@ontario.ca
www.employeradviser.ca
Follow us on Twitter: @askoea
C 2013 Office of the Employer Adviser
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