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This
article provides an overview of an organizations obligation
to register with the Ontario Workers Compensation Board and
focuses on the employers responsibilities for reporting work-related
injury or disease and the employers return to work and accommodation
obligations under the law. It also provides information on whether
or not the employees entitlement to vacation time or sick
days will accumulate while he or she is off on WSIB insurance benefits.
Workers
Compensation is a provincial/territorial government insurance plan
set up to provide income to workers injured on the job or disabled
by certain industrial diseases and is based on the notions of no-fault
insurance and collective liability. The costs of compensating workers
and managing the system are a shared responsibility of employers
who pay an annual assessment into a general accident fund administered
by the Workers Compensation Board of their province or territory.
In return for receiving compensation for a work-related injury,
workers are restricted from suing their employer for the accident.
Employers are required to pay premiums to the workers compensation
board of a province or territory based on a rate per $100 of their
total insurable payroll. The board establishes the rate per $100
according to industry classification to which it assigns the employer.
Every
province and territory has workers compensation legislationidentifying
the industries covered, employers responsibilities for paying
assessments and responding to workplace accidents or diseases, and
the conditions under which an employee may claim workers compensation
benefits. Each province or territory sets its own policies, and
employers across Canada must be aware of each boards differing
requirements.
In
addition, under the Government Employees Compensation Act,
federal government employees are entitled to receive compensation
at the same rate and under the same conditions as private sector
employees covered by the workers compensation legislation
of the province where the federal employee works. However, for workers
compensation purposes, federal employees in the Yukon, Northwest
Territories and Nunavut are considered to be employees in Alberta.
This
article provides an overview of an organizations obligation
to register with the Ontario Workers Compensation Board and
focuses on the employers responsibilities for reporting work-related
injury or disease and the employers return to work and accommodation
obligations under the law.
Workers
Compensation and Coverage
In
Ontario, the Workplace Safety and Insurance Act is the legislation
governing workers compensation. The Act requires employers
covered by the legislation to register
with the Workplace Safety and Insurance Board (WSIB) within 10 days
of employing their first worker. The Act covers most full-time and
part-time employees from the time they are hired including learners,
students, seasonal workers (even those brought in from other countries),
managers and superintendents.
Executive
officers and independent contractors are excluded from automatic
coverage under this legislation, although they may apply for optional
coverage. Some employers are totally excluded and may not apply
for coverage. These include (this is not an exhaustive list):
-
Banks,
trusts and insurance companies
-
Private
health care practices (such as those of doctors and chiropractors)
- Trade
unions
- Private
day cares
- Travel
agencies
- Clubs
(such as health clubs)
- Photographers
- Barbers,
hair salons, and shoe-shine stands
- Taxidermists
- Funeral
directors and embalmers
A
complete listing of excluded industries may be obtained by contacting
the WSIB
offices.
Employers
who hire contractors or sub-contractors may be liable for paying the
contractors/sub-contractors workers compensation
premiums depending on whether the WSIB considers a contractor to be
an employer, worker or independent operator. If contractors employ
workers they are considered employers and must register with the WSIB
and pay premiums on behalf of their workers. If you are hiring contractors
you should obtain from the WSIB a certificate
of clearance which assures you that a business, contractor or
subcontractor is registered with the WSIB, and has an account in good
standing. It clears your organization of financial liability and ensures
they won't be held responsible for someone else's WSIB payments.
Employers
who fail to register will have to pay a penalty charge, as well
as the regular premium for the year. They may also be liable for
the cost of all work-related accidents that occur at their business
while they are not registered.
Reporting
Work-Related Injury or Disease Responsibilities and Rights under
WSIA
Under
the Workplace Safety and Insurance Act (WSIA), an employer
has several responsibilities after a work-related injury or disease
occurs. These include:
-
First
aid;
-
Paid
transportation to a health care facility, if necessary;
-
Reporting
the accident to the Workplace Safety and Insurance Board (WSIB);
-
Investigating
and locating the reason for the accident;
- Continuing
regular employee benefits for up to one year while the worker
is absent;
- Returning
the worker to the same or a similar job when the worker is able
to return to pre-injury employment and to a suitable position
if the worker is not able to return to pre-injury employment;
and,
- Pay
the worker their regular daily rate for the day of an accident.
The
employer must provide first aid according to standard first aid
practices, and make an accurate record of the incident and first
aid given. The employer must also report accidents to the Workplace
Safety and Insurance Board (WSIB) if an employee has to obtain health
care for a work-related injury or disease or if an employee has
to take time off work and cannot earn regular wages because of the
injury or disease.
The
Workplace Safety and Insurance Board (WSIB) Form
7, the Employers Report of Injury/Disease,
is used for reporting workplace accidents. Ontario imposes the following
workplace accident reporting obligations on employers:
An
accident or injury must be reported to the WSIB within three days
if an employee receives health care or medical treatment. Any accident
or injury that keeps an employee away from work and reduces an employees
employment income for more than seven days must also be reported.
Health
care refers to the services of a doctor, nurse, chiropractor
or physiotherapist at a hospital, or other health care facility,
including the employees place of work.
An
accident does not have to be reported if the only treatment the
employee receives is workplace first aid, even if that
treatment is administered by an in-house nurse. First Aid
means the cleaning or treating of minor cuts, scrapes, scratches,
and burns, including the application of bandages, dressings, cold
compresses, ice-packs, and splints.
Employers
should keep records of all accidents or injuries whether they need
to be reported or not.
If
an employer has a surveillance protocol for monitoring and testing
employees for possible exposure to infectious diseases, and it is
suspected that an employee has been exposed, the employer does not
need to report the incident unless the employee tests positive or
requires treatment.
A workplace fatality or other critical incident also requires employers
to:
-
Contact
the police and ambulance services immediately.
-
Immediately
contact by telephone, telegram or fax, the local office of the
Ministry of Labour and the employee's union (if applicable).
-
Notify
the Ministry of Labour in writing of the circumstances of the
incident within 48 hours.
The
WSIB can provide a Crisis Intervention Counselor to help the employer
and employees deal with the incident.
If
the worker is absent due to a work-related injury or disease, the
employer is required to continue making contributions to regular
employment benefits such as health insurance, life insurance, and
pensions for at least one year. If an employee usually contributes
to any of these benefits, they will be required to continue contributing
during the absence, or the employer is no longer obligated to provide
the benefit.
Return
to Work and Accommodation Obligations
Employers
also have certain responsibilities and obligations under the law
when an injured employee is ready to return to work:
Workplace
Safety and Insurance Requirements
Under
s. 41 of the Workplace Safety and Insurance Act (WSIA), the
employer is obligated to re-employ the injured worker if:
- The
employer employs 20 or more workers;
- The
worker was unable to work because of the work-related injury;
and
- The
worker has been employed by the accident employer for one or more
years of continuous service at the time the injury occurred.
This
re-employment obligation lasts until the earliest of:
- Two
years from the date of injury;
- One
year after the worker is medically fit to do the essential duties
of the job; or -the date the worker turns 65.
The
employer is required to:
- Offer
the worker his/her pre-injury job if he/she can do the essential
duties of that job, or comparable work;
- Offer
the worker suitable work, if it's available; and
- Provide
accommodations in the workplace (not to the workplace) to the
extent that it does not cause undue hardship to the employer.
Under
the law, employers are required to reinstate a worker after they
have recovered, unless the employer regularly employs less than
20 people, or the worker has not worked continuously for at least
one year before taking the time-off. If the worker's job is unavailable,
the employer is required to give them a job that is comparable in
responsibility and pay. If the worker cannot perform the essential
duties of the worker's job, then the employer is required to offer
them the first vacant position that is suitable to their skills
and physical ability. Worker re-employment and re-instatement rights
last for two years from the day of the injury or one year from the
date the worker is able to return to pre-injury employment, whichever
comes first. If a worker turns 65, the employer is no longer obligated
to re-employ the worker.
The
WSIB will decide when the worker is ready to return to work. Workers
and employers must co-operate with each other in the effort to return
the injured worker to work as soon as is safely possible. If an
employer gives a partially disabled worker suitable work and cannot
accommodate the worker to perform the essential duties of the worker's
pre-injury job, and then a job comes up that is more similar to
the worker's original position, the employer must offer this job
to the workerOr, if the worker's condition improves while
she or he is employed in another job, and the worker becomes able
to return to pre-injury employment, the employer must offer the
worker their original position or one that is comparable.
If
the employer is unable to re-employ an injured worker, the WSIB
will determine whether the worker needs further help to return to
the labour market. If so, a Labour
Market Re-entry (LMR) Plan will be designed to provide the worker
with the skills, knowledge, and abilities needed to successfully
gain employment.
If
an employer does not comply with the return to work obligations
of the legislation, penalties will be levied by the Board. If an
employer terminates an injured worker within six month's of their
returning to work, the employer must prove that the termination
was not because of the injury or the compensation claim.
However,
the Ontario Employment Standards Act (ESA) does not take
away an employers right to dismiss an employee. The Act does
require that an employee be given working notice, severance pay
(if applicable) or a combination of the two. An employer can terminate
the employment of an employee who has been employed continuously
for three months or more if the employer has given the employee
proper written notice of termination and the notice period has expired.
The
WSIA allows the employer to prove that the termination was not related
to the worker's injury, i.e. downsizing. Before terminating or laying
off an injured worker, check with the Ontario Employer Advisor (OEA)
for advice. The Employer Adviser can be contacted at 1-800-387-0774,
or in Toronto at 416-327-0020. The Office of the Employer Adviser
(OEA) has been serving the employer community since 1985. The OEA
is an independent agency of the Ontario Ministry of Labour, the
OEA is in business to help employers manage and reduce the cost
of injuries in their workplaces
Human
Rights Code Requirements
In
addition to any WSIA and WSIB requirements, employers are also subject
to requirements in the Human Rights Code when a disabled
or injured employee returns to work. Under Human Rights legislation,
even if the employee is receiving WSIB benefits the employer still
has a duty to accommodate the disabled employee and help them return
to work as soon as possible. This duty to accommodate also covers
personal illness not related to the job.
The
duty to accommodate under human rights legislation implies that
the employee has a right to return to work in his or her pre-disability
job or a similar job if the employee can fulfill the essential duties
of the job after accommodation. If the employee cannot fulfill the
essential duties of the job, despite the employers effort
to accommodate short of undue hardship, there is no right to return
to work. The employer either accommodates the employee to the point
of undue hardship so he or she can return to his or her job as soon
as possible; or, if the employee cannot return to his or her job
or alternative job despite the best effort of the employer to accommodate
the employee, the employer can terminate with reasonable notice
or pay in lieu of notice.
For
an employer dealing with a disabled employee, the first step is
to have a doctor provide a prognosis of impairment, to determine
how long the employee will need to be on a leave of absence from
work, how long his or her impairment is for (permanent or temporary),
and also how the employer can accommodate the impairment.
An
employee with a disability should be assessed in terms of his or
her ability to perform essential duties on the job, and cannot be
judged incapable of performing them until efforts have been made
to accommodate him or her up to the point of undue hardship. The
first step to accommodation is to distinguish the essential from
the non-essential duties of the job (although courts and other decision-making
bodies have provided little guidance on how to do this). Where possible,
non-essential duties should be reassigned to another person.
The
inability of an employee to perform the essential duties of a job
should not be reached without actually testing the ability of that
person. It is not enough for the employer to assume that the person
cannot perform an essential requirement; rather, there must be an
objective determination of that fact. The most appropriate accommodation
is the one that meets individual needs; best promotes the employees
integration into a full participation in the workplace, and ensures
dignity and confidentiality. According to the policy, Integration
in this context means inclusivenesstaking steps to facilitate
the employees equal participation in the workplace as opposed
to creating a separate system to accommodate the employees
needs.
However,
employers also have rights. An employer can deny a disabled or impaired
person a job if the disability or impairment would interfere with
the person's ability to successfully perform the duties of the job
or would pose a direct threat to property or to the safety of other
people. An employer cannot fire a person merely on the basis of
a disability, but can fire or otherwise discipline someone for good
cause, or if the disability creates a burden on the employers
ability to conduct business or to guarantee the employee's safety
or the safety of other people.
With
respect to leave of absence, there is no fixed rule as to how long
a disabled employee may be absent before the duty to accommodate
has been met. The Human Rights Commission indicates that this depends
on the ability of the employee to perform the essential duties of
the job, considering the unique circumstances of every absence and
the nature of the employees condition. Factors that must be
considered are: predictability of absences both in regards to when
it will end and if it may recur; the frequency of the absence; the
employees prognosis and length of absences (it is more likely
that the duty to accommodate will continue with a better prognosis,
regardless of the length of absence); and, the nature of the business
and/or the operational needs.
However,
if an employer alleges cause, it must exist and be true (not fabricated).
It must also be proven when required by WSIB and/or the courts.
An employer does not have to give working notice, or pay severance
(if applicable) to an employee who is dismissed for just cause,
but, it is up to the employer to show that just cause exists. Dissatisfaction
with work performance is not sufficient grounds to justify depriving
an employee of the entitlement to compensation. The employer must
be prepared to show that the employees behaviour or conduct
was so unacceptable that it is not only cause for dismissal, but
dismissal without compensation or notice in lieu of compensation.
The employer has to show that the employee was warned of performance
problems and that dismissal was the outcome for failure to meet
reasonable performance standards.
Functional
abilities information is determined by the health care professional
treating the injured/ill employee and tells the employer what kinds
of activities the employees illness or injury allows the employee
to carry out safely. Employers should investigate the situation
and should retain a doctor or the services of an agency that will
assess the employee's functional abilities and require the employee
to go be assessed.
The
employer should also communicate with the claims representative
at the WSIB and discuss the employees claim and any issues.
If the results of the test differ from what the employee's doctor
says, the employer can submit this to the WSIB and contest the employee's
claim. If the WSIB confirms the employee's claim, at least the employer
knows the ailment is real and can decide if they can further accommodate
the employee without incurring undue hardship. If after the employers
best effort it cannot, the employer has to make the decision to
dismiss the employee and provide reasonable notice of termination
or pay in lieu of termination.
For
more information on return to work, go to the WSIB---Return
to Work website.
Accumulation
of Vacation and other Entitlements
Whether
or not the employees entitlement to vacation time or sick
days will accumulate while he or she is off on WSIB insurance benefits
will depend on if there is a workplace policy, an employment contract
or collective agreement in place to which the employee is subject.
If so any obligation on the part of the employer will be found in
the employment agreement or collective agreement. Where there is
no employment agreement or collective agreement which governs the
situation, the provisions of the Workplace Safety and Insurance
Act (WSIA) will apply.
The
WSIA does not provide for the accrual of sick credits, vacation
credits or seniority while a worker is off on WSIB benefits. However,
under the Employment Standards Act, an employee is entitled
to at least two weeks vacation time after each 12 months of
employment, whether it is active or inactive employment. Under the
WSIA the employer is simply required to continue the employees
employment benefits for the first year following the workers
injury. This is, of course, provided the employer was making such
contributions when the worker was injured and the worker maintains
any contributions he/she is responsible for making during that period.
Employment
benefits include payments made by the employer for: health care
(such as extended health coverage, whether for the worker, his/her
spouse or same-sex partner or dependent); life insurance; and pension
benefits including RRSP contributions. However, vacation credits,
sick credits and seniority are not considered employment benefits
for the purposes of the WSIA. So it is at your discretion as an
employer.
Thus,
the employer can state in their workplace policy in a WSIB claims
policy that vacation and paid holiday credits do not accrue during
a period of WSIB absence; and vacation credits and statutory/paid
holidays (lieu days) are paid out if an employee who has been on
WSIB leave returns to work at a time during the year that vacation
credits and lieu days cannot reasonably be scheduled.
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By
Yosie Saint-Cyr, Editor at HRinfodesk
Published
on HRinfodesk- Canadian Payroll
and Employment Law.
HRinfodesk
is a service that is published by First Reference which includes
legislative updates, a Library of Articles, FAQs, a Calendar of
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by jurisdiction, topic, date and keyword.
First
Reference is a publisher of Canadian employment law reference
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Publications
include The Human Resources Advisor, Human Resources PolicyPro
and the HRinfodesk Bulletin and website.
For
more information or to purchase one of our publications, go to
www.firstreference.com.
This
article offers general comments on legal developments of concern
to businesses. Every effort has been made to ensure the accuracy
and timeliness of this information. These publications are written
for informational purposes only and should NOT be relied upon
as legal advice. The reader should always obtain legal advice
from a qualified lawyer or other qualified professional which
will be responsive to the case or circumstance of the individual
©1999-2004
First Reference Inc.
Yosie
Saint-Cyr was called to the Quebec bar in 1988 where she practiced
employment and labour among other fields till 1999. She is a researcher,
policy analyst, and content provider with an extensive background
in employment and labour law across Canada. She also obtained
a Certificate in Technical & Professional Writing from York
University---Glendon in 2003. She is currently the Editor at HRinfodesk.com
a Canadian online information service that provides subscribers
with a single access point to find answers and solutions to employment
and labour law questions across Canada.

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