The WSIA recognizes that the construction industry differs from other industry sectors. The provisions for re-employment and ESRTW reflect those differences and have historically differentiated between construction and non-construction employers. This differentiation made it difficult to apply the re-employment provisions for construction workers and employers.

 
On September 1, 2008, the Ontario Regulation 35/08 Return to Work and Re-Employment —Construction Industry took effect, replacing Ontario Regulation 259/92, which had been in place under the former Workers’ Compensation Act. The new regulation very much reflects the re-employment provisions for non-construction employers and brings the construction industry in line with the other industry sectors. The new regulation applies to employers primarily involved in construction work, regardless of how many workers they employ. It also applies to all accidents that occur after September 1, 2008.  Any accidents that occurred prior to that are still covered by the old regulation.

 
When a construction worker is injured, their employer becomes obligated to re-employ them once they are notified that the worker is medically able to perform either the essential duties of their pre-accident job, other suitable construction work, or suitable non-construction work. In accordance with the ESRTW requirements, employers are required, as with non-occupational injuries, to accommodate the work or the workplace to the extent that the accommodation does not cause the employer undue hardship. This obligation lasts until the earliest of:
 
•    Two years from the date of injury
•    One year after the worker is medically able to do the essential duties of the pre-injury job
•    The date the worker declines an offer of work, or
•    The date the worker reaches 65 years of age

 
The provision regarding a worker declining an offer of modified duties is unique to the re-employment provisions for construction employees. However, any offer of work must be consistent with the other provisions for ESRTW. Specific provisions exist for the work to be both safe for the worker and any co-workers, and productive, providing objective benefit to the employer’s business. These provisions exist in order to ensure that workers return to safe and meaningful work.  

 
The new regulation also recognizes the difference between unionized and non-union construction workers, and makes provisions for employers in each of those situations.

 
At the request of a worker, or on its own initiative, the WSIB can review an employer’s compliance with the re-employment obligation. If an employer is found to have breached their re-employment obligation, the WSIB may levy a penalty on the employer not exceeding the amount of the worker’s net average earnings for the year preceding the injury.  

 
The WSIB may also make payments to the worker for a maximum of one year as if the worker were entitled to wage loss benefits. In addition, the worker may be entitled to additional benefits, such as retraining or vocational rehabilitation.  

 
If a worker is terminated within six months of being re-employed following an injury, the WSIB presumes that the employer has breached its obligation to re-employ. The employer may rebut this presumption by showing that the termination was not related to the injury or claim for benefits. After the initial six months, the WSIB will still investigate all circumstances surrounding a termination to determine whether the employer has complied with its obligation to re-employ.

 
To support the new regulation, the WSIB has also released four new operational policies that provide guidance on how to interpret and apply the legislation. These include Operational Policies 19-05-01, 19-05-02, 19-05-03 and 19-05-04.  For more information on the new regulation or the operational policies, please visit the WSIB website at www.wsib.on.ca.  

 
As an employer, be aware of your obligations surrounding ESRTW and re-employment. Be sure to consult legal counsel before terminating workers to ensure that you are aware of all applicable legislative provisions and potential outcomes.

 
David Marchione is an OHS consultant and paralegal with Gowling Lafleur Henderson LLP in Toronto, specializing in workers’ compensation matters. You can contact him at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or through the company’s website, www.gowlings.com/ohslaw.