The Office of the Employer Adviser

1. The Office of the Employer Adviser Return to Work in the New World of Work Reintegration

2. 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

3. Work Reintegration • Final policies effective July 15, 2011 • Combines RTW, re-employment and LMR • New expectations for employer participation • New employer non-cooperation penalties 3

4. 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 4

5. 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 5

6. 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

7. 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

8. 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

9. Suitable Work • Safe • Consistent with the worker’s functional abilities • Restores the worker’s pre-injury earnings where possible • Available • Productive 9

10. What is Available Work? • Work that exists with the injury employer at the pre-injury worksite or a comparable worksite

11. 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

12. 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 12

13. 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

14. 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

15. 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 15

16. 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

17. 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

18. Written Notice of Non-compliance • Prior to makinga 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 businessdays after the date of the written notice • Small Business (< 20 workers, 14 WSIB business days)

19. Summary of Penalties

20. Re-employment in WR (Non-Construction Employer) • Distinct obligation in addition to RTW • Worker has a re-employment right if • worker unable to work because of a work-related injury / disease • worker employed with the injury employer for at least one year before the date of injury,and • employer regularly employs 20 or more workers

21. Re-employment (Construction Employer) • Distinct obligation in addition to RTW • Worker has a re-employment right if • worker unable to work because of a work-related injury/disease

22. 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

23. 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

24. Suitable Work • If worker medically able to perform suitablework (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

25. 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

26. 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

27. 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

28. 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

29. 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 theextent 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

30. 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

31. 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

32. 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 32

33. 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

34. 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

35. 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

36. …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

37. 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

38. 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

39. 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

40. 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

41. WR Acronyms JST JOB SEARCH TRAINING PROGRAM LMI LABOUR MARKET INFORMATION MTCU MINISTRY OF TRAINING, COLLEGES, AND UNIVERSITIES OD OCCUPATIONAL DISEASES SO SUITABLE OCCUPATION TOJ TRAINING ON THE JOB PROGRAM TP TRANSITION PLAN WPPs WORKPLACE PARTIES WR WORK REINTEGRATION WT WORK TRANSITION WTS WORK TRANSITION SPECIALIST

42. 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