Note: This Overview is intended to provide a general guide to Board policies and programs. It does not constitute official Board policy.
The new Workers Compensation Act contains provisions requiring certain employers to re-employ injured workers when they are ready to return to the workplace. Re-employment is intended to return the worker to a place in the labour market resembling, as closely as possible, the position held at the time of their injury. The purpose of these new provisions is to eliminate some of the barriers to a safe and successful return to work.
Employers who have 20 or more workers, except for those in the construction industry, are required to re-employ workers who suffer a work-related injury.
To qualify for these re-employment rights, a worker must be employed for 12 continuous months and have lost time as a result of a workplace accident. The re-employment provisions apply where the initial time loss related to the accident is on or after February 1, 1996. Re-employment also applies to workers who are seasonally employed or who are contract or temporary workers if a pattern of continued and repeated employment with the pre-injury employer can be established.
Offers of re-employment are linked to the worker's ability to return to work. Workers who are able to return to work to perform either the essential duties of their pre-injury work or other suitable work, are eligible for re-employment. Once the Board decides, based upon all available medical evidence, that the worker can return to work, there are two main paths that re-employment can follow. The first is when the worker is able to perform the essential duties of their pre-injury work, and the second is when the worker is able to work but cannot perform the essentials of their pre-injury work.
If a worker can perform the essential duties of their pre-injury work, the employer is obligated, if able to do so, to offer to reinstate the worker in the pre-injury employment. If the employer is unable to reinstate a worker in pre-injury employment, the employer must offer alternative work equivalent to pre-injury employment. If alternative work is unavailable, then the employer must offer to re-employ the worker in suitable work.
If a worker cannot perform the essential duties of thieir pre-injury work, but can safely do other work, then the employer is obligated to offer the worker the first opportunity to accept any suitable work that becomes available. As the worker's condition improves, the employer is required to offer work more compatible to the worker's ability. This means the employer must offer work within the organization as it becomes available. The worker has the right to priority placement in any work which the employer fills or intends to fill once the employer has received notice that the worker is able to return to work.
Any employer who terminates the re-employed injured worker's employment within six months of the return to work is presumed to have breached the re-employment obligation. The WCB will require the employer to demonstrate that the termination was for reasons unrelated to the injury.
The Board recognizes that the re-employment provisions of the Workers Compensation Act will require some employers to amend current workplace employment practises to comply with the legislation. The Board can offer mediation services to a worker and employer in situations where they are unable to resolve an issue related to re-employment. The Board may also impose penalties for breach of re-employment obligations.
More details concerning the rights and responsibilities of all parties can be found in within the re-employment policies which follow.