By Joe Russo, General Counsel
On September 1, 2008, new regulations under Ontario’s Workplace Safety and Insurance Act went into effect regarding the employer’s obligation to offer to re-employ workers following a workplace injury in the construction sector. Note that the new regulations apply only to workplace injuries that occur after September 1, 2008. Workplace injuries that occurred prior to September 1, 2008 are still subject to the previous return-to-work regulations.
Under the new regulations, when a construction worker is injured, the employer is under an obligation to re-employ the worker once the worker is medically able to perform
any one of the following:
1. the essential duties of his/her regular construction job;
2. other suitable construction work; or
3. other suitable non-construction work.
The key word here is “suitable”. This means that the work offered to an injured worker has to be safe for the worker and any co-workers and must be productive for the employer (i.e., the work has to provide objective benefit to the employer’s business). In other words, the work must be both safe and meaningful. Also, when offering re-employment to the injured worker, the employer must accommodate the worker to the extent that such an accommodation does not cause undue hardship on the employer. The requirement to accommodate lasts until the earliest of:
1. two years from the date of the injury;
2. one year after the worker is medically able to do the essential duties of his/her regular construction job;
3. The date the worker declines an offer of work; or
4. The date the worker reaches 65 years of age
Another interesting feature of the new regulations is that a worker who feels that the employer is not complying with the regulation may ask the WSIB to review what the employer is doing. If the employer is found to have breached the re-employment obligation, the WSIB may penalize the employer for an amount up to the worker’s net average earnings for the year prior to the injury.
Also, if a worker is terminated within six months of being re-employed following an injury, the WSIB will presume that the employer has breached his re-employment obligation and the onus is then on the employer, and not the worker, to prove this is not the case. It seems that with these new regulations for the construction industry, the WSIB has attempted to address some of the issues that construction workers have had with the previous regulations. However, only time will tell if the new regulations work out as intended.
