FINK & BORNSTEIN DEFENDS YOU AGAINST OHSA AND WSIA PROSECUTIONS!

Do you know that employers and workers can be charged with quasi criminal offences under the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA)? Do you know that the penalty for breaking the OHSA can involve a fine of up to $25,000.00 per count for individuals, plus a twelve month jail term, or a fine of $500,000.00 for Corporations? Do you know that the penalty for breaking the WSIA can involved a fine or up to $25,000.00 per count for individuals, and a six month jail term or a fine of $100,000.00 for Corporations? Do you know that employers and workers can be prosecuted under the Criminal Code for workplace activities causing injuries to others?

How can Fink & Bornstein Professional Corporation protect you from such prosecutions?

1. We can advise you on your obligations under the WSIA and OHSA.
2. We can pro-actively review your Company’s operations and procedures, to ensure compliance with OHSA and WSIA.
3. We can advise you on how to deal with a WSIB Audit of your operations that might lead to a prosecution.
4. We can advise you on how to respond to a Ministry of Labour inspection or investigation.
5. We can defend you in Court, if you are charged with violating the WSIA, OSHA, or Criminal Code for workplace related matters.
   

Highlights of the new WSIB Return to Work Policy obligation for Employers

1. If an Employer does not take the Injured Worker back to work, when the WSIB states that the Worker is ready to come back to work (in some full or limited capacity), the Employer is subject to a fine equal to one year of benefits plus the full cost of retraining the Worker which includes: schooling, monitoring, transportation, etc..  These fines could easily exceed $50,000.00 per event.
2. Once the Employer is told that they have not met the WSIB’s obligations, they have 7 days to remedy the breech. 
   
3. Small businesses can ask the WSIB for assistance with the costs of accommodation.  In other words, the WSIB can give Small Employers grants to help them accommodate Injured Workers.  Small Employers are generally businesses that have 1 to 20 employees, but can also go up to 50 employees in some circumstances. 
   
4. Any preexisting disabilities that an Injured Worker has have to be considered by the Employer.  The WSIB can provide all Employers with assistance, by paying the Worker while he undergoes training on the job, for a specific period of time.
5. There is no end to an Employer’s obligation to return Injured Workers to work.  In other words, the obligation can be imposed years after the injury.  An Employer has to notify the Board of any problems during the return to work.  An Employer cannot provide an Injured Worker with work that is simply suitable to the injury.  The work must be “sustainable”.  Sustainable means that if the Worker were to apply for a similar job in the General Labour Market, he/she could possibly get such a job.  The Employer’s obligations to provide accommodation to the Worker include those obligations under the Human Rights Act.  The Ontario Human Rights Act indicates that Employer must make changes to the workplace, up to the point of the Employer’s bankruptcy.  The only defense to this is work that is “not productive”.  For instance, one does not have to have one painter painting the top of a wall, and another painter painting the bottom of the wall, in order to accommodate a Worker who cannot carry a paint brush above shoulder level.
6. Therefore as one can see, the new Policies provide opportunities for small Employers, by obtaining grants and training on the job, subsidization from the WSIB, and severe penalties from larger Employer, who effectively now must have all Injured Workers returned to their labour force.
   

Responsibilities of the Workplace Parties in the RTW Process

Policy

The workplace parties (workers and employers) are required to co-operate in the return to work (RTW) process.

When certain conditions are met, employers may have, in addition to their obligations to co-operate in the RTW process, an obligation to re-employ an injured worker who has been unable to work as a result of the work-related injury/disease.

The focus of the workplace parties’ RTW activities is to work together to return the worker to the pre-injury job (with accommodation where necessary) and, if this is not possible, to identify suitable and available work that is most comparable in nature and earnings to the pre-injury job.

The WSIB supports and assists the RTW efforts of the workplace parties by providing education, case management support, onsite facilitation, accommodation, RTW co-ordination, assistance, dispute resolution, work transition (WT) services, and by ensuring co-operation/re-employment if necessary.

Guidelines
Workplace parties’ co-operation obligations

The workplace parties must co-operate with each other and the WSIB in the RTW process by

• initiating early contact 
• maintaining appropriate communication throughout the worker’s recovery  
• identifying and securing RTW opportunities for the worker 
• giving the WSIB all relevant information concerning the worker’s RTW, and
• notifying the WSIB of any dispute or disagreement concerning the worker’s RTW.

In order to determine if the workplace parties are co-operating in the RTW process, the WSIB will look at the extent of co-operation in early and safe RTW and WT services.

In those cases where the worker is not functionally capable of performing any type of work, the workplace parties are expected to maintain regular communication in preparation for a future RTW.

In those cases where WT services are being provided, the worker and employer are required to co-operate throughout the WT process and the WSIB will provide necessary education and support relating to those services. Failure to cooperate may lead to a reduction or suspension of benefits and termination of services.

Ensuring compliance with co-operation and re-employment obligations

The WSIB informs and educates the workplace parties about their obligations to co-operate in the worker’s early and safe RTW, and supports them in the ways noted above.
In those cases where education and support has been provided to the workplace parties but either or both of them refuses to co-operate, the WSIB may

• reduce or suspend the worker’s benefits, and/or
• levy a penalty on the employer that is equivalent to the costs of providing benefits to the worker.

Application of non-co-operation penalties

In assessing whether non-co-operation has taken place, the WSIB generally looks to the pattern of actions and behaviours of the workplace parties. The WSIB considers and weighs all of the relevant facts and circumstances, including the degree to which the workplace party has initiated/participated in required activities.
For a non-co-operation penalty to be levied, the WSIB must be convinced, on a balance of probabilities, that a workplace party

• had knowledge of his or her obligation
• had the capability to carry it out, and
• did not carry it out.

Initial penalty—worker

The WSIB reduces the worker’s wage loss benefits by 50%

• from the date the written notice comes into effect
• until the 14th calendar day following that date, or 
• until the worker starts co-operating again, whichever is earlier.

Full penalty—worker

For early and safe RTW activities, if the non-co-operation continues beyond the 14th calendar day following the date the written notice comes into effect, the WSIB suspends the worker’s wage loss benefits.

For WT activities, if the non-co-operation continues beyond the 14th calendar day following the date the written notice comes into effect, the WSIB reduces the worker’s wage loss benefits to reflect the earnings of an experienced worker in the suitable occupation. The WT assessment and/or the WT plan may also be terminated.

Note: Wage loss benefits remain suspended until the date the worker starts co-operating again, at which point the WSIB stops the non-co-operation penalty and restores wage loss benefits. Wage loss benefits are restored on the day following the day that the WSIB is satisfied of the worker’s renewed co-operation.

Initial penalty-employer

The WSIB levies an initial penalty of 50% of the cost of the wage loss benefits to the worker

• from the date that the written notice comes into effect
• until the 14th calendar day following that date, or 
• until the employer starts co-operating again, whichever is earlier.

Full penalty-employer

If the non-co-operation continues beyond the 14th calendar day following the date that the written notice comes into effect, the WSIB levies a penalty of

• 100% of the cost of the wage loss benefits payable to the worker, plus
• 100% of any costs associated with providing WT services to the worker.

The full penalty continues to be levied until the earliest of

• the date the employer starts co-operating again
• the date no further wage loss benefits are payable and no services are being provided, or
• 12 months following the date that the written notice comes into effect.

Note: If the WSIB is notified that an employer has started co-operating again, the WSIB  stops the non-co-operation penalty on the day following the day that it is satisfied of the employer’s renewed co-operation.

For both worker and employer non-co-operation penalties, the date the written notice comes into effect is seven WSIB business days after the date of the written notice.

Re-employment obligations

In addition to the co-operation obligations cited above, employers have an obligation to re-employ their injured workers if the following three conditions are satisfied

1. the worker has been “unable to work” as a result of the work-related injury/disease
2. the worker was employed with the injury employer for at least one year before the date of injury, and
3. the employer regularly employs 20 or more workers.

When the worker is medically able to perform the essential duties of his or her pre-injury employment, to comply with the re-employment obligation, the employer is required to

• offer to re-employ the worker in the position that the worker held on the date of injury, or
• offer to provide the worker with work of a nature and at earnings comparable to the worker’s employment on the date of injury.

When the worker is medically able to perform alternate suitable work (although he or she is unable to perform the essential duties of his or her pre-injury employment), to comply with the re-employment obligation, the employer is required to offer the worker the first opportunity to accept alternate suitable employment that may become available with the employer.

Re-employment condition for “unable to work”

A worker is considered unable to work if, because of the work-related injury/disease, he or she

• is 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.

Thus, an employer’s decision to pay advances in these circumstances is not relevant to whether a worker has been "unable to work."

Duration of re-employment obligation

The employer is obligated to re-employ 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.

Terminations within six months of re-employment

Presumption

When a worker is terminated within six months of being re-employed, the WSIB presumes that the employer has not fulfilled the re-employment obligation.

Workers who are terminated within six months of re-employment have three months to ask the WSIB to investigate non-compliance. If the request is made after three months, the WSIB is not required to investigate, but may choose to do so. The WSIB may investigate on its own initiative at any time.

Rebutting the Presumption

Employers can rebut the presumption by showing that the termination within six months of re-employment was not caused in any part by

• the work-related injury or disease (and related absences from work)
• treatment for the work-related injury or disease, or
• the claim for benefits.

Worker severs the employment relationship

In cases where a re-employment obligation exists, but the worker voluntarily quits his or her job, no further re-employment obligation will generally apply. However, if it appears that the worker was pressured into resigning, the re-employment obligation will continue.

Accommodation

All employers have a duty to modify the work or the workplace to accommodate the needs of the worker to the extent of undue hardship. This duty arises through the

• obligation to re-employ set out in the Workplace Safety and Insurance Act or the associated Construction Regulation, and/or
• the Ontario Human Rights Code (the Code) or the Canadian Human Rights Act.

If a job becomes available that can be made suitable through accommodation, and the accommodation does not cause the employer undue hardship, the employer must provide the accommodation. A worker’s accommodation requirements may be temporary or permanent.

During the RTW process, employers and, when relevant, unions and workers are expected to comply with human rights legislation and associated policies.

The Code guarantees equal access to employment opportunities to any person with a disability, whether such disability is work or non-work-related. Pursuant to the Code, if a person with a disability requires accommodation to perform the essential duties of a job, the employer must provide accommodation unless to do so would cause the employer undue hardship.

To assist in determining undue hardship, the WSIB refers to the Ontario Human Rights Commission’s (OHRC) Policy and Guidelines on Disability and the Duty to Accommodate.  Since relevant human rights legislation also protects workers from discrimination on grounds such as disability, race, religion and sexual orientation, employers may have accommodation requirements during the RTW or WT process in addition to those related to the work related-impairment.    

WSIB financial support for accommodation

In the case of small businesses, the WSIB will consider assistance with the costs of accommodation where the accommodation provides a long term solution to the worker’s impairment and the accommodation would otherwise result in undue hardship.

 

Applying a re-employment penalty

Amount of the penalty

Generally, the WSIB levies a re-employment penalty against the employer based on the worker’s actual net average earnings (NAE) for the year before the injury. This amount is not subject to the ceiling used in the calculation of loss of earnings (LOE) benefits.
The penalty is applied from the date the written notice to the employer comes into effect, i.e., seven WSIB business days after the date of the written notice.
In cases where the employer has breached its obligation to re-employ, the 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

where the employment is maintained for the remainder of the obligation period.

Note: For information on re-employment penalties applicable to the construction industry, see 19-05-04, Re-employment Penalties and Payments—Construction Industry.

Re-employment payments or loss of earnings benefits

A. Worker fit for essential duties (without accommodation)—calculating re-employment payments

If a worker is medically able to perform the essential duties of the pre-injury employment without accommodation, but the employer fails to re-employ, the WSIB issues re-employment payments to the worker, including interest, effective from the date the re-employment obligation was breached.

Re-employment payments are issued for up to one year, or the end of the re-employment obligation (whichever comes first), if the worker has not returned to work with another employer, is available for and co-operates in a WT plan or a RTW placement program.

Re-employment payments are equal to LOE benefits, i.e., 85% of a worker’s pre-injury NAE.

B. Worker only fit for accommodated or alternate suitable work—calculating loss of earnings benefits

If a worker is medically able to perform the essential duties of the pre-injury job only with accommodation, or only able to perform alternate suitable work, and the employer fails to re-employ, the WSIB pays LOE benefits to the worker including interest, effective from the date the re-employment obligation was breached.

If the employer fails to offer any work, full LOE benefits are paid if the worker has not returned to work with another employer, and is available for and co-operates in

• health care measures, and
• his or her early and safe RTW, or
• a WT assessment and, if required, a WT plan or RTW placement program,

no matter whether the assessment, plan or placement program extends beyond the date the re-employment obligation comes to an end.

Concurrent co-operation and re-employment obligations

If an employer breaches both a co-operation and re-employment obligation in the same claim, the WSIB will apply a single penalty. The WSIB will choose the penalty which will most likely lead to a positive RTW outcome for the worker.

Warning and notice of non-compliance

In those cases where the WSIB is considering making a finding of non-co-operation or of a re-employment breach, the WSIB first warns the workplace party about this possibility and the possible penalty. This is done verbally (where possible) and in writing.

If WSIB determines that a penalty should be applied, before the penalty takes effect, the WSIB issues a notice informing the workplace party of the finding of non-co-operation or re-employment breach and the WSIB’s expectations for compliance.

Resolving workplace party disputes about job suitability

In all instances, workers and employers are encouraged to resolve disputes regarding the suitability of offered work through their own efforts and initiatives. However, when the workplace parties are not successful in resolving the dispute themselves, the WSIB will

• assist the workplace parties to reach agreement on the issue, or
• make a determination as to whether or not the offered work is suitable.

Note: A dispute over job suitability does not mean that the workplace parties are not being co-operative in RTW activities.

Dispute resolution steps

In cases where the workplace parties cannot agree on whether an offered job is suitable, whether the worker has attempted to perform the offered job or not, the following steps should take place whenever reasonably possible

1. the worker notifies the employer that the offered job is not suitable and provides reasons
2. the employer considers the reasons, and through dialogue with the worker, considers further accommodations if appropriate
3. in the event that agreement cannot be achieved, both workplace parties promptly notify the WSIB and provide all information relevant to the dispute, e.g., job descriptions, physical demands analyses, and/or functional abilities information.

Where offered job is found not to be suitable—maintaining wage loss benefits

In the event the WSIB determines that the offered job is not suitable, the WSIB continues to pay the worker full wage loss benefits as long as the worker continues to demonstrate co-operation with the employer and the WSIB in the RTW process.

Where offered job is found to be suitable—adjusting wage loss benefits

If the WSIB determines that the job offered is suitable, a finding is made that the worker is able to earn the earnings associated with the suitable job. The WSIB then

• verbally informs both parties of its decision
• adjusts the worker’s wage loss benefits, and
• confirms its decision in writing.

The worker’s wage loss benefits are adjusted by deducting the earnings associated with the suitable work from the pre-injury earnings—whether the worker has accepted the suitable job offer or not. The worker’s wage loss benefits are generally adjusted as of the date of the worker’s next available shift. 

Application date

This policy applies to all decisions made on or after December 1, 2010.

Document history

This document replaces 19-02-03 dated October 12, 2004, 19-04-02 dated October 12, 2004, 19-04-03 dated January 5, 2009, 19-04-08 dated October 12, 2004, and 19-04-09 dated April 7, 2008.

References

Legislative authority

Workplace Safety and Insurance Act, 1997, as amended
Sections 21, 23, 33, 37, 40, 41, 42, 43, 44, 77, 86
O. Reg. 35/08

Minute

Administrative
#2, October 22, 2010, Page 483
Reprinted from http://www.wsib.on.ca/en/community/WSIB/230/OPMDetail/24347?vgnextoid=5b0bc0d9ca3d7210VgnVCM100000449c710aRCRD&vgnextchannel=ed6eee40cb05e110VgnVCM1000000e18120aRCRD