Policy

A worker who is unable to continue working due to a short-term or long-term layoff, and whose employability is clearly affected by his/her work-related impairment/disability and associated clinical restrictions, may qualify for

• additional loss of earnings (LOE) benefits, temporary total disability benefits (TT), future economic loss (FEL) supplement, or s.147(2) supplement, and possibly
• labour market re-entry (LMR) services.

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Guidelines

Short-term layoffs

A short-term layoff refers to

• a work disruption with a specific recall date, or
• a work disruption without a specific recall date that lasts, or is expected to last, three months or less.

• Was the recall date provided in writing?
• Can it be shown with some degree of certainty that the recall will occur on the date specified (consider the employer’s past practices, the relationship between the employer and the workforce, and any unusual or unique circumstances)?

• if the worker is not in receipt of LOE, FEL, or permanent disability (PD) benefits at the time of the work disruption, additional benefits/services should probably not be allowed
• if the worker is in receipt of partial LOE/FEL/PD benefits at the time of the work disruption, the partial benefits should probably continue, or
• if the worker is in receipt of full LOE/FEL/TT minus PD/TT benefits at the time of the work disruption, the full benefits should probably continue.

1. The worker is in the early phase of recovery (i.e., there is a recent date of accident/recurrence/deterioration).
2. The worker is still receiving WSIB-approved active (non-maintenance) health care treatment (e.g., physiotherapy) on a frequent basis.
3. The worker is on a graduated return to work program.
4. The worker requires a high degree of accommodation. (Tasks and work processes have been specifically accommodated for the worker’s impairment/disability and are not likely to exist with or be provided by another employer.)
5. The worker has an impairment/disability that is significant enough that it clearly presents an obstacle to the worker finding alternate employment. (Workers who have more than one work-related impairment/disability may be significantly impaired/disabled due to the combination of their impairments/disabilities.)

NOTE

The employability of workers to whom only factor(s) 4 and/or 5 apply would generally not be affected when the layoff is recurring, or periodic, and of very short duration, i.e., a two-week plant closure every year during the summer and/or the December holiday season. Consequently, these workers would generally not be entitled to additional benefits.


Date of entitlement

If the decision-maker decides that additional benefits/services are in order, in most cases, these would be paid/provided from the date the work disruption started.


Health care monitoring

In all cases, the worker’s benefits may be adjusted when the health care information indicates that the worker has recovered to the extent that the worker

• is fit for the pre-injury job, or
• is fit for suitable work, and
  • no longer requires active treatment and/or a graduated return to work program, and
  • the worker’s clinical restrictions do not present an obstacle to finding alternate employment.

• the pre-accident job, then the pre-accident job is the SEB, or
• suitable work with the accident employer that is also available in the general labour market, then the suitable work is the SEB.

Each of the preceding steps must be followed sequentially as detailed below.

1. The employer’s re-employment obligations

First, decision-makers consider whether the employer has breached its re-employment obligations (see 19-04-02, Re-employment Obligation to 19-04-10, Re-employment Provisions and Collective Agreements).


2. The workplace parties’ co-operation obligations

Workplace parties have obligations to co-operate in early and safe return to work (ESRTW) by maintaining communication, and maintaining ongoing efforts to identify and secure suitable and available work which restores the worker’s pre-injury earnings, if possible (see 19-02-02, The Goal of ESRTW and the Roles of the Parties).


Employer non-co-operation

Full benefits (i.e., LOE benefits, FEL /s.147(2) supplement) may be payable if the employer is not co-operating and the worker is unable to return to the pre-accident job because of his/her work-related impairment/disability. Indicators that the employer is not attempting to provide suitable and available work and, therefore, is not co-operating include, but are not limited to

• The employer is not aware of the worker’s functional abilities information.
• The employer has not discussed with the worker how available jobs could be accommodated.
• The employer has not prepared or provided job descriptions or physical demands analyses, etc.

• The worker is not applying for available jobs.
• The worker is applying only for jobs that he/she is not qualified for as per the terms of the collective agreement.
• The worker is not responding to written or telephone contacts from the employer.

• it has no recall date, or
• a recall did not occur on the date provided, or
• it has a recall date, but the date is far in the future and the likelihood of an actual recall occurring on that date is low.

• Full benefits should probably continue to be paid past the three-month mark, and health care monitoring of the claim file should continue.
• The worker’s clinical condition is monitored to determine when the worker is fit to do the pre-accident job or suitable work with the accident employer, and
  • no longer requires active treatment and/or a graduated return to work program,
  • the worker’s clinical restrictions do not present an obstacle to finding alternate employment, and
  • the suitable work is available in the general labour market.
• When this is the case, the suitable and available work would usually become the worker’s SEB, full benefits would be adjusted and, if appropriate, a partial benefit would be paid based on the SEB.
• If the decision-maker is unable to determine an appropriate SEB for the worker, and the worker meets the eligibility criteria for an LMR assessment (see “LMR assessment and eligibility criteria” below), then the WSIB offers an LMR assessment.

• The decision-maker determines whether the suitable work that the worker was doing at the time of the work disruption is available in the general labour market.
• If the suitable work that the worker was doing at the time of the work disruption is available in the general labour market, then that suitable and available work would usually become the worker’s SEB and, if appropriate, a partial benefit would be paid, based on the SEB.
• If the decision-maker is unable to determine an appropriate SEB for the worker, and the worker meets the eligibility criteria for an LMR assessment, then the WSIB offers an LMR assessment.

• Was the worker in contact with the WSIB from the start of the work disruption, and periodically thereafter?
• Has the worker demonstrated availability for suitable work and/or made regular efforts to obtain suitable work?
• Has a failure on the worker’s part to notify the WSIB regarding the layoff led to delayed decision-making?

• have a likely permanent impairment/disability
• are unable to perform their pre-accident job due to the work-related impairment/disability, and
• have not previously received LMR services.

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References

Legislative authority

Workplace Safety and Insurance Act, 1997, as amended
Sections 40, 41, 42, 43, 107, 108, 110

Workers' Compensation Act, R.S.O. 1990, as amended
Sections 37, 43, 54, 147(2)


Minute

Administrative
#18, June 26, 2007, Page 441

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