Obligation to re-employ
54.(1) The employer of a worker who as a result of an injury has been unable to work and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section. Determination re return to work (2) The Board shall determine, (a) with respect to an injured worker who has not returned to work with the pre-injury employer, whether the worker is medically able to perform the essential duties of the worker’s pre-injury employment or is medically able to perform suitable work; and (b) with respect to an injured worker who the Board has previously determined to be medically able to perform suitable work, whether the worker is medically able to perform the essential duties of the worker’s pre-injury employment. Board to notify employer (3) The Board shall notify the employer upon determining that the worker is able to perform the essential duties of the worker’s pre-injury employment or is medically able to perform suitable work. Obligation to re-employ (4) Upon receiving notice from the Board that a worker is able to perform the essential duties of the worker’s pre-injury employment, the employer shall offer to reinstate the worker in the position the worker held on the date of injury or offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker’s employment on that date. Idem (5) Upon receiving notice from the Board that a worker, although unable to perform the essential duties of the worker’s pre-injury employment, is medically able to perform suitable work, the employer shall offer the worker the first opportunity to accept suitable employment that may become available with the employer. Impaired worker (6) In order to fulfil the employer’s obligations under this section, the employer shall accommodate the work or the workplace to the needs of a worker who is impaired as a result of the injury to the extent that the accommodation does not cause the employer undue hardship. Notification of Board (7) An employer shall give written notice to the Board of the particulars of the way in which the employer intends to accommodate the work or the workplace to the needs of a worker under subsection (6). Duration of obligation (8) An employer is obligated under this section until the day that is the earliest of, (a) two years after the date of the injury to the worker; (b) one year after the date the Board notifies the employer that the worker is medically able to perform the essential duties of the worker’s pre-injury employment; and (c) the date the worker reaches sixty-five years of age. Construction industry requirements (9) Employers engaged primarily in construction shall comply with such requirements to re-employ workers who perform construction work as may be prescribed in the regulations and subsections (4) to (8) do not apply in respect of such employers in relation to such workers. Termination of re-employment (10) An employer who, having re-employed a worker in accordance with this section, terminates the employment within six months, is presumed, unless the contrary is shown, not to have fulfilled the employer’s obligations under this section. Determination re: employer compliance (11) A worker may apply to the Board for a determination whether the employer has fulfilled the employer’s obligations to the worker under this section and the Board shall make the determination. R.S.O. 1990, c. W.11, s. 54 (1-11). Same (11.1) On its own initiative, the Board may determine whether the employer has fulfilled the employer’s obligations to the worker under this section. 1994, c. 24, s. 11. Limitation period (12) The Board is not required to consider an application under subsection (11) by a worker who has been re-employed and whose employment is terminated within six months if it is made more than three months after the date of termination of employment. Consequences of non-compliance (13) If the Board finds that an employer has not fulfilled the employer’s obligations under this section, the Board may, (a) levy a penalty on the employer of a maximum of the amount of the worker’s net average earnings for the year preceding the injury; and (b) make payments to the worker for a maximum of one year as if the worker were entitled to compensation under section 37, and subsections 37(2) and (3) apply to the payments with such modifications as the circumstances may require. Conflict with collective agreement (14) If this section conflicts with a collective agreement that is binding upon the employer and if the obligations of the employer under this section in respect of a worker afford the worker greater re-employment terms in the circumstances than the terms available to the worker under the collective agreement, this section prevails over the collective agreement. Idem (15) Subsection (14) does not operate to displace the seniority provisions of a collective agreement. Application (16) This section does not apply in respect of, (a) employers who regularly employ fewer than twenty workers; or (b) such classes or subclasses of employers and workers as may be exempted by the regulations. Emergency workers (17) If a worker is injured while engaged in employment described in subsection 1(2) or (4), the worker’s employer, other than the employer described in subsection 1(2) or (4), shall be deemed to be the employer for the purposes of this section. Idem (18) If an employer re-employs a worker to whom subsection (17) applies, the employer described in subsection 1(2) or (4) shall pay the costs incurred in complying with subsection (6). R.S.O. 1990, c. W.11, s. 54 (12-18). Workers’ Compensation Board