Re-employment obligations exist if a worker is 'unable to work' as a result of a workplace injury / disease, has worked continuously for an employer for one year before the date of injury; and the employer regularly employs 20 or more workers. Under these conditions the employer must offer to re-employ the injured worker in the pre-accident job, a comparable job, or a suitable job.
The obligation to re-employ lasts for the earliest of;
- two years after the date of injury
- one year after the worker is able to do the essential duties of their pre-accident job, or
- the date the worker reaches age 65
A construction employer's obligation to re-employ begins when they are notified that an injured worker is medically able to perform;
- the essential pre-injury duties
- suitable construction work, or
- suitable non-construction work
The obligation to re-employ mirrors the above with one exception. That being, construction re-employment obligations cease on the date that the worker declines an offer from the employer to re-employ the worker.
In one scenario, a employer decided to terminate a worker without cause within the first six months of the worker returning to work. The appropriate paperwork was generated and agreed to by both parties. However, it is important to remember that s. 41(10) of the WSIA presumes that the employer has not fulfiled its re-employment obligations under WSIA when the termination occurs within six months of the employee's return to work. Such a breach carriers a penalty of up to one year of the employee's net average earnings. In addition, the employee may be entitled to ongoing WSIB benefits.
Provisions in the WSIA provide an opportunity for an employer to rebut the presumption by showing that the termination was not related to the injury or claim for WSIB benefits. Regardless, even if the employer returns the worker back to gainful employment, the breach of re-employment may still exist. Therefore, the key is proper documentation to support the termination which may include relevant evidence from the terms of the collective agreement, written company policy and / or practices. Records are necessary demonstrating progressive escalating disciplinary action taken for reasons unrelated to the work injury.
Each case is unique. This information provides employers with general guidelines. For more information, please contact Greg Sathmary (Ottawa) at 613-260-0600 or Industrial Mediation Professional Corporation at 1-800-660-3554.
