the office of the employer adviser

Expert. Confidential. Free. www.employeradviser.ca 1-800-387-0774

The Office of the Employer Adviser

Return to Work in theReturn to Work in theNew World of Work ReintegrationNew World of Work Reintegration

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

Work Reintegration

• Final policies effective July 15, 2011• Combines RTW, re-employment and LMR• New expectations for employer participation• New employer non-cooperation penalties

Work Reintegration (WR) Principles

• 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

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

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

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 7

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

Suitable Work• Safe• Consistent with the worker’s functional abilities• Restores the worker’s pre-injury earnings where

possible • Available• Productive

What is Available Work?

• Work that exists with the injury employer at the pre-injury worksite or a comparable worksite

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

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

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 13

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

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

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

Job Is Suitable

• WSIB deems worker able to earn wages associated with

offered job

• Adjusts LOE by deducting deemed earnings from pre-injury

earnings whether the worker has accepted the suitable job

offer or not

• Orally informs WPPs of decision

• Confirms decision in writing

Written Notice of Non-compliance

• Prior to making a finding of non-co-operation or re-

employment 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)

Summary of PenaltiesPenalty starts

7 business days from

date on written notice

Initial Penaltyfirst 14 days

of breach

Ongoing Penalty

15th day of breach +

Worker 50% LOE 100% LOE

Employer 50% LOE

100% LOE +100% WT CostsUp to 12 Months

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

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

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

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

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

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

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

Presumption of Breach• WSIB presumes employer breached re-employment obligation

if worker terminated within 6 months of being re-employed

• 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

Voluntary Severance

• Re-employment obligation exists

• Worker voluntarily quits his or her job

• no further re-employment obligation will generally

• Severance must be voluntary without pressure

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

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

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

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

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 33

Concurrent WR and Re-Employment Obligations • An employer that breaches both a co-operation and re-

employment 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

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

…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

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

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 employment in a SO

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

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

WR AcronymsJST JOB SEARCH TRAINING PROGRAMLMI LABOUR MARKET INFORMATIONMTCU MINISTRY OF TRAINING, COLLEGES, AND UNIVERSITIESOD OCCUPATIONAL DISEASESSO SUITABLE OCCUPATIONTOJ TRAINING ON THE JOB PROGRAMTP TRANSITION PLANWPPs WORKPLACE PARTIESWR WORK REINTEGRATIONWT WORK TRANSITIONWTS WORK TRANSITION SPECIALIST

Thank You!

• 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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