When re-employment obligations for construction employers apply

In addition to your obligation to co-operate in the return to work (RTW) process, a construction employer is obligated to re-employ its construction workers — regardless of how many construction workers it employs or the worker’s length of employment — when the worker is unable to work because of their work-related injury, illness, or disease.

When your re-employment obligation begins

Your re-employment obligation starts on the date you receive notice the worker is medically able to do the essential duties of their pre-injury job with, or without accommodation, or suitable construction work, or suitable non-construction work.

The re-employment obligation

The re-employment obligation depends on what work the worker is fit to do based on their medical restrictions and whether the worker is unionized or not. Please feel free to contact the OEA for advice on your specific circumstances.

How long your re-employment obligation lasts

You must re-employ your construction worker until the earliest of:

• 2 years from the date of injury
• 1 year after the worker is medically able to do the essential duties of their pre-injury job
• the date the worker turns 65, or
• the date the worker declines your offer of work

The earliest applicable date may change if the worker’s level of impairment improves or worsens.

If a re-employment obligation exists, but the worker voluntarily quits their job, the WSIB will look at the reasons why the worker quit as it decides whether you continue to have a re-employment obligation to your worker.

Terminating the injured worker

The WSIB presumes a construction employer has breached its re-employment obligation if a construction worker is terminated:

• within 6 months of being re-employed, other than at a construction project
• within 6 months of being re-employed at a construction project but before their work on that project is completed, or
• when their work on a construction project is complete, and you do not re-employ them at another construction project within 6 months after the date they were re-employed, even though:
  • the worker is medically able to do the essential duties of their pre-injury job, and the pre-injury job or a comparable job is available — or becomes available — at the same construction project or at a different one, or
  • suitable work is available — or becomes available — at the same construction project or at a different one

You can rebut the presumption by proving, on a balance of probabilities, that the termination or inability to continue to re-employ the worker within six months was not related in any way to the worker’s work-related injury, illness, or disease.

If you terminate the worker before they are re-employed, or more than 6 months after they are re-employed, but during the re-employment obligation period, you may be found in breach of your obligation if the facts support it.

• You may also be found in breach of your re-employment obligation for other reasons such as failing to offer appropriate work or not fulfilling your duty to accommodate the worker to the point of undue hardship.

Re-employment penalty

If a construction employer has breached its re-employment obligations, the WSIB may:

• apply a financial penalty to the employer’s account, based on the worker’s actual net average earnings for the year before their injury, and
• pay the worker for up to 1 year, as if they were entitled to loss of earnings benefits
• The WSIB may waive or reduce the penalty in certain circumstances

If you breach your co-operation and re-employment obligations in the same claim, the WSIB will apply the penalty that will most likely result in a positive RTW outcome for the worker.

Non-construction workers

None of the information outlined above applies to a worker who works for a construction employer but does no construction work — such as office staff. For more information on a construction employer’s re-employment obligations to its non-construction workers, please refer to the OEA’s Re-employment for Non-construction Employers page on this website.

Appealing a RTW decision

Employers who disagree with a WSIB decision regarding RTW, re-employment, or RTW assessments or plans have only 30 days from the date of the decision to appeal it to an Appeals Resolution Officer (ARO). If the employer disagrees with the ARO decision, the employer has 6 months from the decision date to appeal to the Workplace Safety and Insurance Appeals Tribunal.

Assistance

Please feel free to contact the OEA if you have any questions about your rights or obligations in the RTW process, or if you need help returning a worker to work.