Return-to-Work Disputes: Know Your Rights
One of the most common, and most misunderstood, areas of WSIB law is what happens when your employer asks you to return to work after an injury. Many injured workers feel pressured to return before they are ready, accept modified duties that are not actually suitable, or agree to return-to-work arrangements that do not reflect what the law requires.
Here is what you need to know.
The Legal Framework
Ontario’s Workplace Safety and Insurance Act (WSIA) imposes obligations on both employers and workers in connection with return to work following a workplace injury. These obligations exist alongside, and are separate from, the accommodation obligations under the Human Rights Code, which apply to workers with disabilities.
Under the WSIA, employers with 20 or more employees have a duty to re-employ injured workers in certain circumstances. Specifically, if you have been employed for at least one year and are medically capable of performing the essential duties of your pre-injury job or suitable modified work, your employer must offer you that work.
What Is “Suitable Work”?
Suitable work is work that is within your functional abilities as determined by your treating healthcare providers and confirmed through the WSIB’s functional abilities assessment process. It must not endanger your health or safety or the health or safety of anyone else in the workplace.
The key word is “suitable.” An employer cannot offer you just any work and call it suitable. The work must be consistent with your functional limitations, reasonably comparable to your pre-injury position in terms of earnings where possible, and genuinely available, not invented for the purpose of getting you off benefits.
WSIB adjudicators and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) have considered many disputes about what constitutes suitable work. The threshold is meaningful, employers cannot satisfy their re-employment obligations by offering token modifications that do not actually accommodate your restrictions.
When Your Employer Pushes You Back Too Soon
Pressure to return to work before you are medically ready is one of the most common complaints among injured workers. Sometimes this pressure is subtle, a suggestion that your job might not be there if you do not return. Sometimes it is explicit.
You have the right to return to work only when you are medically capable of doing so. WSIB benefits, including loss-of-earnings benefits, are intended to bridge the period during which you are unable to work due to your injury. Returning before you are ready and re-injuring yourself does not just set back your recovery, it can complicate your claim.
If you feel you are being pressured to return before you are ready, document everything. Keep records of communications from your employer. Make sure your treating physician has accurately documented your functional limitations. Advise your WSIB case manager of the pressure you are experiencing.
The Re-Employment Obligation and What Happens When Employers Ignore It
If your employer fails to re-employ you in accordance with their obligations under the WSIA, they may be subject to a penalty, currently up to $100,000. More importantly, the failure to re-employ may result in WSIB ordering the employer to pay you an amount equivalent to your loss of earnings.
These consequences are real, but they require that you assert your rights. Many injured workers do not know that the re-employment obligation exists, let alone that there are consequences for employers who ignore it.
Modified Duties: Your Right to Refuse Unsuitable Work
If your employer offers you modified duties that you genuinely believe are not suitable given your functional limitations, you have the right to raise that concern, with your WSIB case manager, with your treating physician, and if necessary through the appeals process.
What you should not do is refuse work that is genuinely suitable. Refusing suitable modified work can result in a suspension or reduction of your WSIB benefits. The distinction between unsuitable work that you are justified in refusing and suitable work that you must accept is not always obvious, which is one of the key reasons to have legal representation when navigating a return-to-work dispute.
If You Are in a Return-to-Work Dispute
Return-to-work disputes move quickly. WSIB timelines for raising objections and filing appeals are strict, and missing them can affect your ability to recover benefits you are owed. If you are in a dispute with your employer about return to work, seek legal advice as early as possible.
At Yombo Grossman Law, we represent injured workers at every stage of the WSIB process, including return-to-work disputes. We know the system, we know the arguments, and we know how to protect your rights when your employer does not follow the rules.
This article is for informational purposes only and does not constitute legal advice. Contact Yombo Grossman Law for a consultation.
