What are an Employer’s Obligations to a Worker Receiving WSIB Benefits?


April 2, 2017

What are an Employer’s Obligations to a Worker Receiving WSIB Benefits?

When a worker sustains a workplace injury or illness, the Employer has an obligation to continue contributions for the worker’s employment benefits for one (1) year following the date of the injury. This includes contribution for health care benefits, life insurance benefits, and pension benefits.

Employment benefits not subject to the employer’s obligation include; Employment Insurance (EI), Canada Pension Plan (CPP), and vacation and sick credits. If the worker is paying for any portion of the benefit plan, the worker must continue his share of these contributions.

The maximum penalty for an employer’s non-compliance with its obligations to continue the worker’s benefit contributions is the sum of one (1) year’s employer contributions for all employment benefits on behalf of the worker. Employers are additionally liable to workers for any loss suffered as a result of non-compliance.

The employer must pay the worker for the day of the accident, pursuant to Section 34 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, CHAPTER 16 Schedule A (“WSIA”).

The employer pursuant to s. 40 of the WSIA, must co-operate in the employee’s return to work. Section 40 of the Act provides;

The employer of an injured worker shall co-operate in the early and safe return to work of the worker by,

  1. contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker’s recovery and impairment;
  2. attempting to provide suitable employment that is available and consistent with the worker’s functional abilities and that, when possible, restores the worker’s pre-injury earnings;
  3. giving the Board such information as the Board may request concerning the worker’s return to work; and
  4. doing such other things as may be prescribed.

To aid the employer in attempting to provide suitable employment for the worker, it should provide a Functional Abilities Form (FAF) to the worker. The FAF should only be used when the worker is functionally able to return to some kind of work. A FAF is an optional form designed to help workers and employers meet their return-to-work obligations by being a communication tool for the workplace parties. It can be used as a tool to facilitate return to work discussions between the employer and the injured worker.

Pursuant to section 22(5) of the (“WSIA”) , the employer must ensure that the worker has consented to the disclosure of his information provided by a heath care professional under subsection 37(3) of the WSIA prior to providing him with the FAF.

Once the worker’s limitations are established from the FAF, the employer has the responsibility to attempt to provide “suitable work”. Suitable work includes work that:

  1. is safe and within the worker’s (functional) physical capabilities;
  2. the worker has the skills to do (or can acquire the skills to do); and
  3. restores the worker’s pre-injury earnings as closely as possible.

The employer must offer to re-employ a worker who is medically fit to return to the essential duties of their pre-injury job or suitable work if: the employer regularly employs 20 or more workers and the worker was continuously employed with employer for at least one year at the time of the injury.

Once the employer is in receipt of the worker’s FAF, it should develop a Return to Work Plan, by working cooperatively with the worker to identify suitable and available work for the worker to come back to. It is the employer’s responsibility to make modifications to the work or the workplace if it will enable the worker to return to either the pre-injury job or another suitable and available job. The employer has an obligation to provide the WSIB with information about the worker’s return to work.

If the employer is having difficulty accommodating the pre-injury job or agreeing with the worker on suitable work, it should contact the claim adjudicator assigned to the file to request assistance. The services that the claims adjudicator may offer the employer when experiencing this difficulty are; a return to work mediator trained to act as an impartial third party to help resolve return to work problems and/or a WSIB ergonomist who will look at the job to be done and the functional abilities of the worker to suggest a modified job or workplace modifications.

The employer’s re-employment obligations under the (“WSIA”)are in effect for the earliest of:

  1. one year after the worker is declared fit to return to the essential duties of their pre-injury job or suitable work; or
  2. two years from the date of injury/illness; or
  3. the date the worker reaches age 65.

If it is not possible to for the worker to return to work within the two (2) year period, the WSIB will provide the worker with a labour market re-entry (LMR) assessment and if necessary, a labour market re-entry plan. If you would like to discuss the employer’s obligations to a worker receiving WSIB benefits further, please contact us.

When a worker sustains a workplace injury or illness, the Employer has an obligation to continue contributions for the worker’s employment benefits for one (1) year following the date of the injury.