When re-employment obligations for injury employers apply

In addition to your obligation to co-operate in the return to work (RTW) process, an injury employer has an obligation to re-employ their worker when:

• the worker is unable to work because of their work-related injury or disease
• the worker had worked for you for at least 1 continuous year before the date of their injury, and
• you regularly employ 20 or more workers

When your re-employment obligation begins

The injury employer’s re-employment obligation starts on the date it receives notice that the worker is medically able to perform the essential duties of their pre-injury job, with or without accommodation, or suitable work.

When the worker is medically able to perform the essential duties of their pre-injury job, with or without accommodation, you must offer the worker their pre-injury job or an alternate job, with or without accommodation, that is comparable in nature and earnings to their pre-injury job.

When the worker is medically unable to perform the essential duties of their pre-injury job with or without accommodation, but they are medically able to perform suitable work with or without accommodation, the worker must be offered the first opportunity to accept suitable work as soon as it is available.

How long your re-employment obligation lasts

The injury employer must re-employ their worker until the earliest of:

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

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 re-employment obligation generally no longer applies.

Terminating the injured worker

If you terminate the worker within 6 months of re-employing them, and your re-employment obligation is still in effect, the WSIB will presume that you breached it. You can rebut this presumption by proving the termination had nothing to do with the work-related injury or disease, or the worker’s WSIB claim.

If you terminate the worker before they are re-employed or more than 6 months after they are re-employed, but within the obligation period, the WSIB may still decide that you breached your re-employment obligation if the facts support it.

Re-employment penalty

The WSIB will apply a financial penalty against an injury employer if it decides the employer has breached its re-employment obligation. The amount of the penalty is based on the worker’s actual net average earnings for the year before their injury. The WSIB may reduce the penalty if you later fully or partially comply with your re-employment obligation. If the injury employer breaches its co-operation and re-employment obligations during overlapping periods in the same claim, the WSIB will apply the higher penalty.

Construction workers

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

Appealing a re-employment 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, including re-employment, or if you need help returning a worker to work.