Re-Employment After Injury: WSIB Claims
Information adopted from the Ontario Worker Adviser (OWA) website. Used with permission.
The law may require your employer to offer you re-employment after your injury. Not all employers have this obligation and not all workers qualify. Also, time limits apply. If your employer does not offer to re-employ you after an injury, contact your Union Representative as soon as possible.
Does my employer have to re-employ me after a work-related injury?
Your employer must offer to re-employ you after a work-related injury if:
- It regularly employs 20 workers or more, and
- It employed you for at least 12 continuous months before your injury.
Special rules apply to construction workers, seasonal workers, trainees, temporary help agency workers and contract workers.
Even if your employer has an obligation to re-employ you, you must still co-operate in early and safe return to work activities.
When must my employer re-employ me?
When you are able to perform the essential duties of the job that you were doing at the time you were injured, your employer must:
- Offer to re-employ you in the job that you did on the day of your injury, or
- Offer to provide another job that is similar in nature and pays at least 90% of what you were earning before your injury.
To perform the essential duties of the job means to be able to do the job at a normal production level.
If you are unable to perform your pre-injury job, but are able to do some other kind of work, your employer must offer you the first suitable employment that becomes available. Work is considered suitable if it is safe, productive, within your functional abilities and, to the extent possible, restores your pre-injury earnings.
If you were injured at work, you must inform the Workplace Safety and Insurance Board (WSIB) and your employer when you are able to perform the essential duties of your regular job or do suitable work. You must also tell the WSIB about any material change in circumstances.
The WSIB can notify you and your employer when it believes you are able to perform the essential duties of your job before the accident or do suitable work. Your employer can also contact you and the WSIB if it believes it has a job available that you can do.
How long does my employer’s re-employment obligation last?
Your employer must try to re-employ you until the earliest of the following:
- Two years after the date of your injury,
- One year after the WSIB advises the employer that you are able to perform the essential duties of your regular job,
- The day that you turn 65 years of age.
Is my employer required to take steps to help me return to work?
Yes. Your employer must accommodate you by changing your job or workplace, or by providing assistive devices that will help you to perform the essential duties of your regular job or another job. For example, your employer may have to change equipment, work schedules, or the way the work is done in an effort to make it easier for you to return to work.
Your employer can only refuse to make accommodations if it shows the expense would cause it undue hardship in terms of cost or health and safety requirements.
What if my employer fires me after I return to work?
- Your employer dismisses you after you return to work:
- You can object to the WSIB. You also need to contact your Union Representative to see if a grievance is in order. Both will investigate.
- Your employer dismisses you within six months of your return to work:
- The employer must show the WSIB that your injury was not the cause for the decision to dismiss you.
- Your employer dismisses you more than six months after returning to work:
- The WSIB will examine all the circumstances and decide whether your employer met its re-employment obligation.
- Your employer dismisses you within six months of when your re-hire date:
- You must object to the WSIB within three months of the date you were dismissed. If you wait longer, the WSIB is not required to consider your objection.
What does the WSIB do if my employer fails to meet its re-employment obligation?
If your employer refuses to re-employ you, contact the WSIB and your Union Representative. You can ask the WSIB to determine whether your employer has met its re-employment obligation. WSIB can decide if you are able to perform the essential duties of your old job or other suitable work. The WSIB will also decide whether your employer has tried hard enough to accommodate your disability.
If the WSIB decides your employer has not met its re-employment obligation, you are entitled to full or partial re‑employment payments. These payments are the same amount you would receive if you were entitled to loss of earnings benefits. The payments can last up to one year.
To receive benefits, you must be available for and co-operate in:
- a medical rehabilitation program,
- early and safe return to work activities, or
- a work transition assessment and plan.
WSIB cannot force your employer to re-employ you, but it can make the employer pay a substantial penalty if it does not.
Can I appeal a WSIB decision on re-employment?
Yes. But, you must submit an Intent to Object Form to WSIB within 30 days of the date of the decision. For more information on appeals, see Appeals at the WSIB and contact the Workers’ Compensation Department. If you miss the 30 day deadline you can ask the WSIB for an extension.
Can I complain under the Ontario Human Rights Code?
Yes, the Ontario Human Rights Code considers a workplace injury to be a disability and your employer must accommodate you. The employer’s duty to accommodate your needs under the Human Rights Code does not depend on how many people work for your employer or how long you worked for your employer before the injury. You need to start a human rights complaint right away because time limits involved. Do not wait for the WSIB to make a decision. For help, you may contact Ontario’s Human Rights Legal Support Centre at 1-866-625-5179. You may also contact the Human Rights Tribunal of Ontario at 1-866-598-0322.