Overview

Workers who are unable to return to their pre-injury job or who require accommodation to be able to return to their pre-injury job, because of the work-related injury, illness or disease they are experiencing, may be eligible to receive WSIB RTW services.

RTW goal

The WSIB and the workplace parties (the injury employer and the worker) should all do their best to return the worker to work that:

• the worker has the skills to perform
• is safe, productive and consistent with the worker’s physical and cognitive functional abilities, and
• restores the worker’s pre-injury earnings as much as possible

Suitable and available work

The injury employer must make every effort to provide the worker with suitable and available work. Under the Workplace Safety and Insurance Act, 1997, and either the Ontario Human Rights Code or the Canadian Human Rights Act, the injury employer is required to accommodate the worker’s needs unless it would cause undue hardship to the employer.

If the worker can perform the essential duties of their pre-injury job with accommodation that does not cause the employer undue hardship, the employer must provide the accommodation to enable the worker to stay at work or return to work. Otherwise, if a job is available or becomes available that can be made suitable for the worker through accommodation that does not cause the employer undue hardship, the employer must provide the accommodation to enable the worker to stay at work or return to work. Where neither situation is possible, the WSIB may consider providing the worker with opportunities to obtain new work in the local or broader labour market.

Co-operation obligations

The injury employer and the worker are required to co-operate in the RTW process. The injury employer must also comply with their re-employment obligation, if applicable. The workplace parties’ co-operation obligations start on the date of injury, illness or disease, and end on the earliest of:

• the date the worker’s loss of earnings benefits can no longer be reviewed
• the date the employment relationship ends because the worker voluntarily quits, or because the employer terminates the worker’s employment for reasons that have nothing to do with the worker’s work-related injury, illness or disease, or with the worker’s claim for WSIB benefits
• the date the WSIB is satisfied the injury employer has no suitable work to offer the worker, and is not expected to have any in the reasonably foreseeable future, or
• the date the WSIB is satisfied the injury employer has met its co-operation obligation by offering the worker suitable work, and the worker does not return to that job after the WSIB has decided it is suitable

Non-co-operation penalties

An employer or worker who does not comply with their co-operation obligation may have one or more non-co-operation penalties applied against them. If an injury employer breaches a co-operation obligation and a re-employment obligation during overlapping periods in the same claim, the WSIB will apply whichever penalty is higher. The WSIB generally does not charge a non-co-operation penalty where there are compelling reasons that explain why an injury employer or worker is unable to co-operate.

Note: Any disagreement the workplace parties may have about whether a job that has been offered to the worker is suitable is not an example of non-co-operation. The same is true in a situation where a worker expresses concern about a health and safety issue under the Occupational Health and Safety Act or the Canada Labour Code.

Appealing a RTW decision

The workplace parties must contact the WSIB if they are unable to resolve any disagreements during the RTW process. Employers who disagree with a WSIB decision regarding RTW, re-employment, or RTW assessments/plans have only 30 days from the date of the decision to appeal it to an Appeals Resolution Officer (ARO). ARO decisions must be appealed within six months of the decision date 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.