Who is a worker?
* IE is insurable earnings
This guide is NOT for account closures for individuals and companies carrying on business in construction in 2013.
The WSIB sets an annual maximum for insurable earnings. For 2012, the annual maximum was $81,700. For 2013, the annual maximum is $83,200.
The WSIB requires employers to report the earnings of all their workers*.
Defining a worker
A worker is anyone you employ in your business under a contract of service or apprenticeship. In this relationship you, for example, set:
- The nature and place of work
- When it is performed, and
- How it is performed.
In some cases an unpaid employee may still be considered a worker (e.g. training participant).
A family member, including spouse, children and other relatives, employed under a contract of service and receiving earnings is considered a worker. Their earnings must be included in the premium calculation.
Workers can be employed either full-time or part-time, including:
- Seasonal, temporary or occasional employees
- Students, apprentices and learners
- Training participants.
- Domestics working for you for more than 24 hours a week.
*An occasional (or casual) worker is an individual who works occasionally i.e. less than part-time, and would be on an irregular schedule. If such a worker is employed for the purposes of the employer’s industry, insurable earnings must be reported and premiums must be paid for the work performed. However, if such a worker is employed otherwise than for the purposes of the employer’s industry, there is no need to report insurable earnings or remit premiums for the work performed.
Contractors may also be workers. Please see the section on Contractors.
Workers are eligible for WSIB benefits.
The WSIB considers executive officers to be a select group of individuals who control the direction of the entire organization rather than just a department or branch. The WSIB has the authority to determine who is an executive officer. For a complete list of positions eligible for executive officer, see below.
If you are incorporated and you consider one (or more) of the individuals on your payroll to be an executive officer, you must be able to demonstrate that the individual in question:
- Holds a position (as corporate officer or director) listed on the chart under “Limited liability companies” and is named in your corporation’s minute book as holding this position; and
- Does in fact perform the duties and executes the responsibilities of an executive officer, as defined by the WSIB.
Individuals confirmed as executive officers by the WSIB are not considered workers unless they have optional insurance.
An individual such as a sole proprietor, a partner, or an independent operator who incorporates, is not considered an executive officer.
|Employer Type||Description||Executive Officers|
|Limited liability companies||Legally incorporated with
without share capital
|Municipalities||Incorporated and non-incorporated, including cities, towns, villages,
and Indian bands
|Public health service
facilities (e.g. hospitals), utilities, municipal agencies, school boards, colleges
Sole owners, partners, independent operators and executive officers are not required under the Workplace Safety and Insurance Act to report insurable earnings, and are not covered by the WSIB in case of a workplace injury or illness, unless they have optional insurance. By having optional insurance, they (or their dependants) lose the right to sue for damages resulting from a workplace injury/illness.
An owner’s spouse, or other family member must hold a position as a partner or executive officer and must receive earnings that are verifiable if audited to qualify for optional insurance.
Optional insurance takes effect the date the signed written request is received by the WSIB.
The optional insurance amount should reflect the earnings of the person covered. Optional insurance is always set at an annual earnings level, subject to the annual maximum insurable earnings, regardless of the period the insurance is actually in effect.
The minimum coverage period for optional insurance is three months.
To update the amount of optional insurance, use the Optional Insurance Request/Change form ( 84.8kb, PDF) included in your reconciliation package.
Cancelling optional insurance
Optional insurance is continuous and stays in effect until the person covered provides a signed, written request asking for cancellation of optional coverage.
If the person covered is no longer with the firm and is not available to sign the cancellation form, the employer must provide us the date the person in question left the company. In such cases the WSIB will accept an authorized signature instead of the insured person’s signature.
The WSIB may cancel optional insurance with 15 days notice if the employer defaults on premium payments. If there are multiple accounts, optional insurance is cancelled for all accounts, no matter which account is in default.
A contractor/subcontractor or owner operator may be a worker, independent operator or employer for WSIB purposes. Workers are automatically covered and you are required to pay premiums for this coverage. Coverage for contractors/subcontractors ruled by the WSIB to be independent operators is not mandatory.
A contractor/subcontractor who employs workers/helpers is an employer and must be registered with the WSIB. If you retain a contractor/subcontractor to perform a service and there is evidence that the contractor/subcontractor retains help, you should verify that the contractor/subcontractor working for you is registered with the WSIB and remains in good standing. (Refer to Clearances.)
For the period being reconciled, you may have retained contractors who you considered as independent operators or employers in their own right. As a result, you may not have reported payments made to them as insurable earnings on your Premium Remittance forms. If you did not obtain rulings from the WSIB confirming independent operator status, or did not obtain a clearance for those contractors/subcontractors who employ help or have optional insurance, the WSIB strongly encourages you to do so.
If the WSIB finds that these contractors/subcontractors were in fact your workers, unregistered employers, or registered employers not in good standing, you could be liable for insurance premiums that are owed in connection with the work or service they performed on your behalf.
The following sections explain how the WSIB determines if a contractor/subcontractor is a worker or an independent operator, and how obtaining clearances can protect you from liability for a contractor’s/subcontractor’s premiums.
In all cases where you have not, or are not, reporting payments made to contractors/subcontractors, contact a WSIB account representative to confirm the status of the contractors/subcontractors.
Is the individual your worker or an independent operator?
The WSIB uses questionnaires to help determine if a contractor/subcontractor is an independent operator or your worker.
There are industry-specific and general questionnaires available from a WSIB account representative and on our website.
If you consider the contractor/subcontractor you retain to be an independent operator, you and your contractor/subcontractor should submit a completed and signed questionnaire along with supporting documentation to a WSIB account representative.
If the WSIB determines the contractor/subcontractor is your worker you:
- Will be notified of the decision in writing
- Must include the labour portion of the contractor’s/subcontractor’s gross earnings when calculating the premium subject to annual maximum insurable earnings.
If the WSIB determines the contractor/subcontractor is an independent
- Will be notified of the decision in writing
- Will not be required to pay premiums for that contractor/subcontractor
- Must keep the decision letter on file for your records.
Please note that incorporation is only one factor in determining whether a person is an independent operator. If your contractor/subcontractor is an incorporated individual or partnership, you and your contractor/subcontractor should complete, sign and submit the appropriate questionnaire, and supporting documentation, if required.
To protect yourself against liability for unpaid premiums, you should:
- Keep the independent operator decision letter issued to your company from the WSIB, as proof of the status ruling.
An individual ruled to be an independent operator, and who does not have WSIB optional insurance coverage, is not protected by the Workplace Safety and Insurance Act (Act).
The WSIB is the authority to determine who is a worker or an independent operator under the Act and reserves the right to review this ruling at any time.
To avoid liability for unpaid premiums the WSIB recommends that you request a Clearance if your contractor/subcontractor retains help. The WSIB issues a Clearance when the contractor’s/subcontractor’s account is in good standing.
The Clearance waives the WSIB’s right to hold you liable for any premiums owed by the contractor/subcontractor for the labour portion of the contract that are due within the period of the Clearance.
If your contractor/subcontractor is an independent operator with optional insurance, you should also check their standing to avoid liability.
A Clearance is not an instrument for determining worker/independent operator status.
A Clearance is not proof an owner, partner, or executive officer has WSIB optional insurance coverage. More information on Optional Insurance.