Policy

A worker who is unable to continue working due to a strike or lockout, 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,
• and possibly labour market re-entry (LMR) services.

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Guidelines

General rule for entitlement

Generally, workers affected by a strike or lockout should have their benefit status maintained, i.e.,

• if the worker is not in receipt of LOE, FEL, or permanent disability (PD) benefits at the time of the strike or lockout, 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 strike or lockout, 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 strike or lockout, 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 due to the combination of their impairments/disabilities.)

• 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,
  • 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 available in the general labour market, then the suitable work is the SEB.

• the labour dispute is prolonged (more than three months), and
• it is unknown when the labour dispute will be settled, and
• the worker demonstrates that he/she has made efforts to mitigate the loss of work, and
• the likelihood is high that the worker will choose to continue the LMR plan (if required) if the strike is resolved (see "Indicators that worker likely to continue with LMR plan", below), and
• the decision-maker is unable to determine an appropriate SEB for the worker and the worker
  • has a likely permanent impairment/disability, and
  • is unable to perform the pre-injury job due to the work-related impairment/disability, and
  • has not previously received LMR services.

• the worker’s impairment/disability is so significant that a return to the accident employer is unlikely
• the worker has a low paying job
• the worker has low seniority
• the worker is no longer involved in strike activities, e.g., picketing
• the employer’s business is in financial trouble.

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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
#21, June 26, 2007, Page 442

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