Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

The Ontario Ministry of Labour is seeking submissions on a proposed new regulation under the Ontario Occupational Health and Safety Act (“OHSA”) that would provide assistance with OHSA reprisal complaints, including education, legal advice and representation, to non-unionized workers and small employers (fewer than 50 employees). The proposed regulation would expand the mandate of the Office of the Worker Advisor (“OWA”) and the Office of the Employer Advisor (“OEA”) to provide reprisal complaint assistance. Currently, the OWA and OEA assist workers and employers under the Workplace Safety and Insurance Act, 1997 (“WSIA”).

Section 50 of the OHSA prohibits employers from dismissing, disciplining, penalizing, or intimidating or coercing a worker because he or she has, among other things, acted in accordance with or sought enforcement of the OHSA, its regulations or an order under the OHSA or testified in any OHSA proceedings.  Workers who allege violation of this prohibition may resolve their complaint through binding arbitration under a collective agreement (if any) or by filing a complaint with the Ontario Labour Relations Board (“OLRB”). The Dean Panel, which was appointed to review Ontario’s occupational health and safety regime, found that the OLRB system was too complicated for unrepresented parties and reprisal complaints were often abandoned without being adjudicated.  To address this situation, the Dean Panel recommended expanding the mandate of the OWA and the OEA to provide assistance to workers in pursuing and assistance to small employers in responding to reprisal complaints. The proposed regulation will expand the mandate of the OWA and OEA to provide reprisal complaint support and advocacy services to workers and small employers, respectively.

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On July 15, 2011 the WSIB introduced several changes including those to the NEER window and the final version of Work Reintegration guidelines.

What do these changes mean? In general, they are aimed at increasing pressure on employers to return injured workers to the workplace. This is being done through a renewed emphasis on the return of injured workers to the accident employer rather than into the general labour market. The WSIB has also increased the amount of time that an injury claim may have an effect on WSIB premiums by one year. This has been done through extending the NEER window from 3 to 4 years. Four years is a long time for an injury to have an impact on an employer's costs.

Are increasing potential costs to employers the right way to go? One has to ask if getting more aggressive with employers alone is likely to improve the chance of injured workers returning to work. Greater scrutiny of employee claims of workplace injury and reduced incentives for malingering would also be in order.

Employers will need to devote even more resources into active claims and potentially revisit internal procedures aimed at returning injured workers. If they don't, they'll pay.

Heenan Blaikie’s Jeremy Warning recently spoke at the Construction Labour Relations Conference in Toronto, hosted by Insight Information. During the session “Preparing for the Worst: How to Respond to a High Risk Incident” Jeremy provided advice to construction managers on what to do if there is an injury at the workplace.

This is the third video from Jeremy’s presentation from a four-part series recorded by Reed Construction Data Canada. We will post the last video next week.

Once upon a time, if an employer was outside the NEER window and was finding it difficult to reintegrate a worker who had a workplace injury, it was relatively straightforward to arrange to have the worker go into the WSIB's "Labour Market Re-entry" program. For the employer, this often effectively solved the problem of trying to "accommodate" the worker's restrictions, usually at little or no cost to the employer. However, LMR was an enormously expensive program for the WSIB.

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