Return to Work – Responsibilities and Re-employment Obligations Policy 21-413 | Effective Date: January 11, 2022

Purpose

The purpose of this policy is to:

• Inform workplace parties of their responsibilities in return to work;
• Advise workplace parties of their re-employment rights and obligations; and
• Communicate WorkSafeNB’s commitment to ensuring that workplace parties meet legislative requirements.

Scope

This policy applies to all employers, injured workers, unions, health care providers, physicians, and WorkSafeNB when involved in the rehabilitation and return to work of an injured worker.

Statements

Early and safe return to work is recognized as being therapeutic for the injured worker and is an integral part of their rehabilitation. The Workers’ Compensation Act provides the framework for the early and safe return to work process, placing the obligation on the employer, with the cooperation of the injured worker. The legislation also provides an opportunity for WorkSafeNB to partner with workplaces, being a resource and assisting injured workers, employers, unions, medical practitioners in working cooperatively throughout the process.

The specific legislated obligations of employers are:

• To contact the injured worker and WorkSafeNB soon as the circumstances permit after the injury by accidents occurs;
• To offer the injured worker suitable work, including any necessary accommodations;
• To maintain communication throughout the period of the injured worker's recovery and impairment;
• To cooperate with any WorkSafeNB - sanctioned program for returning to work;
• To give WorkSafeNB any information requested concerning the injured worker's return to work; and 
• To not discriminate against a worker because the worker suffered an injury by accident.

The specific legislated obligations of injured workers are:

• To contact the employer and WorkSafeNB as soon as the circumstances permit after the injury by accident occurs:
• To cooperate with the employer when the employer is attempting to provide suitable work;
• To maintain communication throughout the period of recovery and impairment;
• To cooperate with any WorkSafeNB - sanctioned program for returning to work; and 
• To give WorkSafeNB any information requested concerning the injured worker's return to work.

Re-employment

For most injured workers, early and safe return to work occurs immediately, enabling the injured worker to stay at work. For other injured workers, early and safe return to work may require an accommodation such as modified duties, progressing to their pre-injury job. Recovery while at work forms an invaluable part of treatment. 

For those injured workers who were unable to stay at work, the focus is to have all parties work together in returning the injured worker to employment. For the employer, it is their legislated obligation to re-employ if:

• The employee has been employed with them for at least 12 continuous months on the date of the injury; and
• The injured worker is medically able to return to pre-accident employment or suitable work

The re-employment obligation applies for one year, from the date the injured worker is entitled to compensation, for employers who regularly employ fewer than twenty workers; or two years, from the date the injured worker is entitled to compensation, for employers who regularly employ twenty or more workers. To facilitate re-employment, the employer must accommodate the work, the workplace or both for an injured worker to the extent that the accommodation does not cause the employer undue hardship.

When a worker is medically able to perform the essential duties of the worker’s pre-injury job, the employer must offer to re-employ the worker in their pre-injury job or provide alternative employment of a nature and earnings comparable to the pre-injury employment.

Enforcement

If either or both workplace parties refuse to fulfil their legislated return to work obligations, WorkSafeNB may levy a penalty on the employer and/or diminish or suspend an injured worker’s benefit.

The non-discrimination provision under the WC Act is enforced by the Employment Standards Branch of the Government of New Brunswick. Human rights legislation also provides protection from discrimination, as well as an employer’s duty to accommodate injured workers who are disabled. Where there is a complaint, WorkSafeNB will work cooperatively with the appropriate organization to ensure all information needed to investigate is provided in a timely manner.

Interpretation

1. For an injured worker to successfully return to work, it is necessary that parties communicate regularly and clearly on issues affecting return to work activities. Communication is between WorkSafeNB and injured workers, accident employers, unions, medical practitioners, and others.
   
   
2. WorkSafeNB provides resources and assistance to both the injured worker and employer during the injured worker’s recovery and return to work. WorkSafeNB monitors the injured worker’s progress throughout the claim, co-ordinating any required health care and rehabilitation services.
   
   
3. Suitable work takes into consideration the injured worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the injured worker or coworkers. It may be an existing position or modified to adapt to the injured worker’s restrictions.
   
   
4. While return to work is a collaborative process, it is the responsibility of the accident employer to provide suitable work, including any accommodations. These accommodations could include job site modifications, equipment, and tools necessary to allow the injured worker to safely perform the employment. In cases where the employer has shown that accommodations will result in undue hardship, WorkSafeNB may assist.
   
   
5. Disputes about the suitability of work are not considered non-cooperation; however, the employer and the injured worker need to notify WorkSafeNB so that steps can be taken to resolve the dispute.
   
   
6. WorkSafeNB expects unions to assist the employer, injured worker and WorkSafeNB by supporting   re-employment or accommodation offers. In identifying suitable work, if the re-employment obligations under WC Act are stronger than those under a binding collective agreement, it is the re-employment obligations under the WC Act that must be met.

Enforcement

7. On the request of the employer or the injured worker or on its own initiative, WorkSafeNB will investigate and determine whether the employer has met their obligations. WorkSafeNB reviews the facts and if WorkSafeNB concludes that an employer has not met their obligations, WorkSafeNB:

• Informs accident employers verbally and in writing of their legislative obligation under the WC Act; and 
• Gives accident employers a reasonable period to comply with the legislated obligation.

If the accident employer does not comply within the stated timeframe, WorkSafeNB will apply the administrative penalty in an amount up to the injured worker's average net earnings for the 12-month period immediately before the injury by accident.

8. For the purposes of determining whether there is a re-employment obligation, WorkSafeNB will consider employment to be of 12 continuous months if the employment was not interrupted by a work cessation where either the worker or employer intended to sever the employment relationship. Thus, continuous employment may include seasonal workers who are subject to temporary layoffs that are not intended to end the employment relationship. In general, the following types of work cessation do not break the employment relationship:

• Strikes and lockouts;
• Sabbaticals, sick leaves, maternity and parental leaves, employer-approved leaves of absence, and vacations;
• Work-related injuries resulting in time off work;
• Lay offs with a mutual agreement that the worker will return to work for the employer; and
• Instances when the employer continued to pay the worker. 
  
  

9. The employer is presumed not to have fulfilled their re-employment obligations if the employer re-employs the worker and worker is dismissed:

• Within six months of re-employment if, at the time of re-employment, the worker was no longer receiving compensation; or
• Within six months of the worker ceasing to receive compensation when the worker was receiving compensation at the time of re-employment.

The employer may rebut this presumption if they can demonstrate the dismissal was not related to the worker’s injury.

10. If employers believe that providing accommodations will result in undue hardship, the onus of proof is the responsibility of the employer. WorkSafeNB will evaluate these claims, on a case by case basis, considering several factors including:

• Employer size;
• Interchangeability of workforce and facilities;
• Financial costs;
• Health and safety concerns;
• Disruption of operations; and 
• Impact on other protected rights. 

11. WorkSafeNB will diminish or suspend payment of compensation when evidence shows that the injured worker is not cooperating in aspects of their return to work as required by legislation, including not accepting suitable work.