Clear Path Blog

Information regarding reporting on accessibility is now available. Starting January 1, 2012 the Accessibility Standard for Customer service came into effect for all Ontario businesses and organizations with one or more employees.

Organizations with 20 or more employees are required to report their accessibility by December 31, 2012.

Instructions for reporting to the Ontario Ministry of Community and Social Services can be found by clicking here.

Instructions are also duplicated below

Step one: Create your ONe-Source account

The first thing you’ll need to do is set up your ONe-Source account. (You may already have one if you have used ONe-Source services before.)

Here’s how to create your ONe-Source account:

• Visit ServiceOntario’s ONe-Source for Business.
• On the right side of the page, you’ll see My Account. Click on Sign-up.
• Create your ID and password. Click on Continue.
• Set your recovery questions. Click on Continue.
• Review the Terms and Conditions of Use. Enter your Password and click on I agree.
• Complete your ONe-Source for Business profile. Click on Create My Account.

Step two: Complete, certify and submit your accessibility report

Now that you have created your ONe-Source account, you are ready to complete, certify and submit your accessibility report.

• Click on the Accessibility Compliance Reporting (ACR) tab and follow the prompts.

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An article published by the Labour and Employment Group and McCarthy Tetrault highlights a decision of the Ontario Divisional Court in regards to an employer's obligation to report critical injuries and fatalities to the Ministry of Labour (MOL)

This decision centered around Blue Mountain Resort in Collingwood Ontario when on Decemer 24, 2007 a guest at the resort drowned in a swimming pool located on the resort property. Blue Mountain did not contact or report the incident to the MOL, believing that because the incident involved a guest at the resort and not one of it's workers, and that the swimming pool was not supervised at the time, the accident was not a workplace accident that need to be reported to the MOL.

Read on in the article to find out the concequences of not reporting the incident and what the term "employer's obligation" means under the broad definition of "workplace".

Source article: The Broad Scope of an Employer's Obligations to Report Critical Injuries: The Blue Mountain, Resort Case: Author: Daniel Pugen, Ben Ratelband

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Over the holidays there were several news stories about workplace fatalities and in one case workplace violence.  Reading these stories is a reminder to us all about our responsibilities as employers to provide a safe and healthy workplace for our employees.  A good health and safety program provides a clear set of guidelines for activities that if followed diligently will reduce accidents. The key to a successful program is the matter in which it is implemented and maintained.

Accident #1

• December 14, 2011, Toronto ON - Security guard was struck by a motor vehicle while on break in the company’s parking lot.
• Motorist fled the scene leaving the victim knocked to the ground. Subsequently the security guard was then struck a second time by a reversing company tractor trailer. -The security guard was pronounced dead at the scene. 
• Since this incident originally began with the security guard being struck by the motorist and not the truck it became a Toronto Police investigation, however once that investigation is complete the Ministry of Labour (MOL) will step back in and check for any possible violations under the Occupational Health and Safety Act.

Accident #2:

• December 20, 2011, Milton ON - A 28 year old construction worker was killed on the job while doing renovations at a mushroom farm. He was run over by a front-end loader. 
• He was pronounced dead at the scene.

Accident #3

• December 28, 2011, Kitchener ON -The Ministry of Labour is investigating the death of an 11 year old boy while he was working at his family’s local meat, produce and baked goods market
• The boy suffered a fatal head injury when riding in an elevator between the basement storage area and the main floor of the business.
• The MOL has determined that the apparatus that the boy was injured on is not a standard elevator and was more of a “makeshift” device that is often used by other workers as well. Investigation is ongoing

Accident #4 (Workplace Violence)

• December 28, 2011, Toronto ON - An argument broke out between two employees (one male, one female) in the kitchen of a restaurant in Chinatown.
• Male worker stabbed the female worker in the neck. The woman died after several days in the hospital.

A workplace fatality may be the single most hardest thing for an organization to deal with. All of these incidents showcase how important it is to have a solid Internal Responsibility System (IRS) working together to ensure the safety of employees, specifically:

• Management providing a safe environment and setting standards for health and safety.
• Front Line Supervisors taking the responsibility for communicating the standards, monitoring the enforcement of them as well as inspecting the work area and removing any hazards.
• Employees ensuring they are complying, participating and raising safety concerns to the management when necessary.
• And last but not least having a Joint Health and Safety Committee that is entrusted with the authority to  monitor this system of Internal Responsibility.

Although some fatalities in the workplace may not be preventable, ultimately, organizations who use a proper hazard assessment process to identify and deal with hazards in the workplace have a better chance of avoiding these kinds of incidents.  As of June 15, 2010 Bill 168 legislation took this obligation further by requiring  Ontario businesses to take steps to protect their employees from workplace violence and harassment, including threats of domestic violence.

If you have questions about how to engage your leaders so they take their due diligence responsibilities seriously or with Bill 168, Joint Health and Safety Committees or any health and safety concerns please contact Anna at anna@clearpathemployer.com or by phone at (519) 624-0800. Our upcoming learning session Leadership Safety: 101 will out outline strategies for Managers and Supervisors involving due diligence, compliance and health and safety and the law.

News: Ontario Ministry of Labour starts off 2012 with Safety Blitzes

February is scheduled to be a month long inspection blitz on musculoskeletal disorders (MSDs).  The inspections will focus on manual material handling in the industrial, construction, mining and health care sectors. This will be the third time this type of inspection has been initiated.  During last year’s 3,550 visits 8,851 orders were handed to organizations. The most common were problems pertaining to training, maintaining equipment, keeping floors free from obstacles, materials handling and employers not taking every precaution reasonable under the circumstances to protect their workers.

What is an MSD?

Musculoskeletal disorders are a type of injury prone to individuals working in every sector involving manual material handling and repetitive movement.   MSDs are injuries that involved the muscles, nerves, tendons, ligaments, joints, cartilage or spinal discs. They result from forceful exertion, awkward body positions, hand arm and whole-body vibrations, contact stress and repetitive tasks. It can take time for MSDs to develop and can lead to chronic back pain, shoulder problems, carpal tunnel syndrome etc.

What is the impact of MSDs in Ontario?

• MSD claims account for 44% of all lost time
• MSD claims account for 44% of all lost time days
• MSD claims account for 41% of all lost time claim costs
• 913,000 losts work days
• 28,000 WSIB claims worth $112 million

How should I prepare for my visit?

Employers are required by law to take every reasonable precaution to protect workers from hazards and injury.  There are steps you can take to prepare for your visit, and ensure you are meeting your obligation to provide a safe workplace for your employees.

•  Familiarize yourself with the MSD hazards in your workplace
• Perform a workplace audit to identify the hazards
• Have documented information publicly available that explain strategies for preventing MSD injuries.
• Offer training to your employees that provides tools on recognizing MSD hazards and prevention tools (ex. Proper lifting techniques, avoid working on the floor, avoiding storing objects too high, encouraging more trips with lighter weight load as opposed to less trips with a heavier weight load)
• Consider implementing ergonomic principles to reduce repetitive or forced movements and fixed or awkward positioning
• Implement a health and wellness program that focuses on exercises to reduce MSD injuries as well as a positive healthy work environment
• Evaluate your program for preventing MSD injuries for their effectiveness. (Ex. Establish a feedback program from your employees through your JHSC)

Inspectors will be reviewing your JHSC, written procedures and training on MSD hazards, signs, symptoms and controls, how your workplace measures up under the Internal Responsibility System and your MSD statistics. Don’t get caught making excuses! Be prepared for your inspection by performing your due diligence and ensuring a safe workplace that has standards in place for the prevention of musculoskeletal disorders.

If you require assistance in this area, please don’t hesitate to contact us by phone (519) 624-0800, or email anna@clearpathemployer.com.  Our next learning session on Leadership Safety: 101 would also be beneficial to obtain a comprehensive overview of due diligence, Health and Safety and the law, inspections, investigations and incident reports.

 Sources:

Blitz Results: Preventing Musculoskeletal Disorders (2010), Ontario Ministry of Labour, www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report23.php

www.healthandsafetyontario.ca

 Blitz Results: Preventing Musculoskeletal Disorders (2010), Ontario Ministry of Labour,

www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report23.php

On December 8 2011 The Ontario Government proposed Bill 30: The Family Caregiver Leave Act. This would be an amendment to the Employment Standards Act (ESA) 2000 and would create a new category of leave under the ESA 2000-family caregiver leave.

The new leave would come into effect July 1 2012. The family caregiver leave would allow employees to take up to eight (8) weeks of unpaid leave in each calendar year (per each individual noted below ) to care for a relative that is suffering from a “serious medical condition”

Eligible Relatives:

• A spouse
• Parent, step-parent, foster parent of employee or employee's spouse
• Child, step-child, foster child of the employee or employee's spouse
• Grandparent, step-grandparent, grandchild, step-grandchild of the employee or employee's spouse
• The spouse of a child of the employee
• The employee's brother or sister or relative of the employee who is dependant on the employee for care or assistance
  

To qualify for the family caregiver leave the employee would be required to have a medical certificate from a qualified health practitioner stating that the employee’s family member has a “serious medical condition”. The employee would be required to produce the certificate upon request from his/her employer.  The employee must also advise the employer in writing of his or her intention to take the leave before taking it or as soon as possible after beginning the leave. The employee must also take the leave of absence only in full-week periods.

If this bill passes, the Ontario government has indicated it intends to pursue the Federal government to request an extension of Employment Insurance Benefits to those employees who qualify for the leave.

What does this mean for Employers?

It’s interesting that this bill is being proposed now as Canada is experiencing a surge in the growing “baby boomers” population. The current number of Canadians age 65 or older is expected to double to 25% of Canada’s overall population by 2036. Increases in life expectancy and a decrease in fertility since the 1960’s have been the main causes of the aging population. As the baby boom generation turns 65 this year, there is a more pressing need for the health care system to adapt to meet the future needs of the growing population.  Many technological advances have allowed seniors to stay at home longer than ever before.The family caregiver leave could Canadians an option should they chose to care for their senior loved ones at home,  should they require long term care for a serious medical condition.

What is your opinion on this proposed bill? Email us at anna@clearpathemployer.com and share your thoughts!

Sources: www.ciha.ca- “The baby boom effect: caring for Canada’s aging population

              Hicks Morley: FTR Now December 15 2011

Recently a landmark decision was issued by The Supreme Court of Canada that limits the jurisdiction of a human rights tribunal to consider matters that have already been dealt with in another proceeding.  This ruling reinforces the provision of Section 45.1 of the Ontario Human Rights Code, which provides that “the tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”.

A standing argument has been that the tribunal has not enforced this provision creating concerns for employers that employees are with ease able to ” shop for different and better results” when a decision has already been made .

In the case of Boyce v. Toronto Housing Corporation, the worker appealed a decision from the WSIB to the Ontario Human Rights Tribunal after being terminated. Here’s what happened:

•  Worker injured knee when chair collapsed at work. The worker lived in Scarborough and the employer offered accommodated work in downtown Toronto. Worker requested to work from home or an alternative location closer to home.
• WSIB Appeals Resolution Officer ruled that while a temporary modified job offered in 2005 as a Parking Enforcement Officer was suitable, it was not clear if the worker could safely get to work given disability
• 2008 WSIB Claims Adjudicator ruled permanent modified position as a dispatcher working downtown was suitable. The worker objected to the decision, but did not complete rejection form and pursue appeal right away. Employer terminated employee when he failed to accept terms of modified duty. Worker then appealed to Ontario Human Rights Tribunal.
• Worker filed complaint with Human Rights Tribunal-the tribunal did not dismiss the claim under section 45.1 and ruled the WSIB adjudicator’s decision failed to appropriate consider the workers requests for accommodation in regard to travel to and from work.

The significance of the recent decision in the case of British Columbia Compensation Board v. Figliola-Here is a recap:

• Figliola case dealt with workers who were seeking compensation for chronic back pain from the British Columbia Worker’s Compensation Board. They were awarded compensation of 2.5% of their total disability.  They were not satisfied with the amount of compensation.
• Each worker appealed the decision citing the BC board’s policy was “patently unreasonable” under section 15 of the Canadian Charter of Rights and Freedoms.  The review officer dismissed the appeal stating the board was not in violation under the B.C Code.
• Workers filed complaints with British Columbia Human Rights Tribunal and alleged the same discriminatory arguments-The BC Board brought forward a motion to dismiss the complaints on the basis that the argument had already been appropriate dealt with.
• Tribunal dismissed the board’s motion and held that section 27(1) (similar to section 45.1 of Ontario Human Rights Code) of the B.C code did not apply and allowed the complaint to proceed.
• Finally, British Columbia Supreme Court reversed the Tribunal’s decision to move forward, but then again restored the decision.

The BC WCB Board appealed to the Supreme Court of Canada who overturned the Tribunal’s decision, dismissed the worker’s complaints and stated that the B.C code “does not give the Tribunal authority to act as a review body with jurisdiction to consider, comment on and substitute decisions of other administrative tribunals”

What does this mean for employers in Ontario?

Due to the similarity between B.C’s section 27(1) and Ontario’s section 45.1 of their respective Human Rights Codes , the Figliola decision will likely have implications on the jurisdiction of the Ontario Human Rights Tribunal in hearing duplicated complaints. Ontario employers can use this landmark decision if they are seeking a tool to dismiss a human rights complaint by an employee when the issue has already been dealt with appropriately in arbitration or in front of a labour relations board.

In the case of Boyce v. Toronto Housing Corporation, unfortunately the worker’s requests for accommodation were not appropriately considered and many avenues were left unexplored.  In this case, had all reasonable accommodations been met and had the employer and WSIB fully addressed all aspects of the worker’s requests for accommodation this Human Rights Case could have been avoided, or dismissed.

 It is extremely important when responding to accommodation requests that there is an investigative process that documents and explains to the employee how the employer will meet the accommodation request. The employer is not required to do exactly what the employee requests, however the employer is required to offer alternative solutions that are reasonable with consideration for medical and functional abilities.

If you have any questions about this decision, or if you are experiencing a similar situation as the cases above, please contact Anna Aceto-Guerin by email at anna@clearpathemployer.com or by phone, 519-624-0800.

Clear Path has a particular specialty in cost-effective WSIB claims management, return-to-work (RTW) strategies and acquiring SIEF cost relief. Click here to learn more about our WSIB claims management services.

The Ontario government passed the Accessibility for Ontarians with Disabilities Act (AODA) to a standing ovation in 2005. Its aim was to make the province fully accessible by 2025. For logistical purposes, the legislation broke out 5 "standards" to be implemented by public and private companies (all of which would require additional legislation to finalize).

The first of these 5 "standards" passed was the Customer Service Standard, passed in 2008, which gives rules for businesses to ensure that they are providing their goods and services in a way that is accessible to those with disabilities. It came into effect on January 1, 2010 for the public sector and businesses in the private and non-profit sectors must be compliant with its regulations by January 1, 2012. See our blog entitled "AODA: Good News and Bad News for Employers" for more details.

News:

In June 2011, the McGuinty government passed legislation that enacts 3 of the remaining 4 "standards," call the Integrated Accessibility Regulation.  The 3 new standards focus on transportation, information & communication, and employment regulations for people with disabilities. This regulation came into effect July 1, 2011. Exact deadlines for compliance are yet to be determined, but are expected to be 2013 or later.

The Accessibility Standard for Information and Communication is meant to ensure business owners and government agencies help people with disabilities access more sources of information. This includes websites, public libraries, textbooks, public safety information, and marketing materials.

The Accessibility Standard for Employment has the goal of helping employers acquire, support and retain skilled employees, even when they have accessibility issues. This standard is intended to make accessibility a normal part of finding, hiring and communicating with employees.

The Accessibility Standard for Transportation focuses on making transportation services accessible. This includes buses, trains, subways, streetcars, taxis and ferries. Some requirements for this standard come into effect on July 1, 2011. These requirements include equal fares for all customers, making verbal pre-boarding and on-board announcements and providing courtesy seating. Additional requirements will be phased in over time.

Work is continuing on the 5th and most controversial standard, the Built Environment Standard. This standard will require that physical buildings be made fully accessible, but is running into conflicts with those advocating for the preservation of historical buildings and other groups. This standard is not expected to become law in the immediate future.

For more information about the AODA legislation, please contact Anna at Clear Path's office at (519) 624-0800 or anna@clearpathemployer.com. We also recommend you register for one of our upcoming training sessions. To learn more, click here.

The WSIB recently released its list of Ontario companies identified for a Workwell Health & Safety Audit. The big news this year is that, contrary to previous practice, the WSIB has included a number of federally-regulated companies who were previously exempt from the audit.

The Workwell program was established by the WSIB to promote health & safety practices in Ontario by charging penalties to employers who do not maintain safe and healthy workplace environments.  The extensive audit measures 12 "elements" of health & safety and a company must achieve a grade of 75% in order to pass.

The WSIB states that 72% of companies fail their first evaluation and are then granted 6 months to prepare for a second evaluation. If a company fails the second evaluation, they are penalized between 10% - 75% of their annual WSIB premium.

Workwell identifies employers with: 

• Particularly poor accident records, and/or
• High accident costs compared to their rate group, and/or

• History of non-compliance with the Occupational Health & Safety Act

Note: Since 1999, the WSIB has not included companies that are federally regulated (including those in the trucking and transportation industries) on their annual Workwell audit list.

New in 2011:

Ken Langer, Assistant Director of the Workwell program, released a memorandum in March stating that contrary to previous practice, this year's Workwell list includes federally-regulated, Schedule 1 companies. His memo details the reasons behind this change in practice and why the WSIB is confident that recent court cases support this change in practice. To read Mr. Langer's memorandum, click here.

It is currently unknown whether any of the newly identified firms plan to challenge this ruling in the courts.

How Clear Path can help:

Being identified for a Workwell audit can be a stressful experience for an employer, whether they are federally-regulated or not. Clear Path is offering a quick survey for employers regarding Workwell audits and how we can help improve your score. Click here to check out our survey.

If you have any additional questions, please don't hesitate to contact Anna Aceto-Guerin at (519) 624-0800 or anna@clearpathemployer.com.

In 2005, the Ontario government passed the Accessibility for Ontarians with Disabilities Act (AODA) with the goal of making the province fully accessible for people with disabilties by 2025. This Act will eventually bring significant changes to various aspects of our society, including new rules for buildings and physical structures, employment, transportation, and information & communication.

These changes will be implemented through a series of five "standards," each covering a different area and with a different timeline. Only one of the standards, the AODA Customer Service Standard, has been passed to date and is the subject of this blog entry.

As for the other standards, the Ministry of Community and Social Services recently released a draft of regulations to combine 3 of the 4 remaining standards into one piece of legislation (Integrated Accessibility Standards). The Built Environment standard (changes to physical structures) remains in development and is particularly challenged by concerns over changes to historical buildings.

AODA Customer Service Standard:

As mentioned, the first of these standards (and perhaps the least onerous) is the AODA Customer Service Standard, which requires all Ontario businesses to provide their goods and services in a way that is accessible to all Ontarians. The Act does not require that goods and services themselves be accessible (that may be covered in future standards), only the way in which they are provided. It also gives employers freedom to determine the best accessibility options for their own workplace. The standard really is a "nudge" (rather than a "big stick") to encourage businesses to implement fairly modest changes, many of which may open themselves up to receiving more business from an aging society where at least 15% of the population have with some kind of disability.

The standard applies to all Ontario businesses with at least 1 employee and came into effect for public sector (government) organizations on January 1, 2010. For private businesses and not-for-profits, the deadline for compliance is January 1, 2012.

Businesses must comply with 11 regulations covering a number of areas, but all of them emphasize the core principles of dignity, independence, integration, and equal opportunity. To read about the specific requirements, please click here.

AODA: Positive aspects for employers 

Ability for employers to comply:

• For many employers, relatively modest measures are all that is necessary for compliance (this is not to say that they don't need to take the necessary steps listed in the regulations).
• The Act states that persons with disabilities may not dictate what steps the business takes to be more accessible, only that reasonable options must be available. For example, a person with vision issues may request a Braille version of company literature, but if the business is not able to provide that format, it can offer alternatives such as providing in a large print format, electronic versions that may be read by text-reading software on a home computer, or simply have an employee read the document to the customer.

• Fines for non-compliance are fairly modest ($200 - $15,000), unless the business is in breach of a government order, when much more significant penalties apply. However, providers must be aware that submitting a claim through Ontario's Human Rights Tribunal continue to be an option for any dissatisfied customer.

Support Resources:

• Unlike the recent Bill 168 legislation (Workplace Violence & Harassment), the government has given businesses plenty of time to comply and provided a signficant amount of documentation (guides, policy examples, surveys, etc.) for employers to use.

• Click here to access some of the government-created support documents.

Business Impact:

• Implementing more accessible customer service practices may increase business opportunities, particularly since 15% of the population have some type of disability.

• The Act does not require businesses to provide free services (i.e. admission fees) to support workers, although the business may choose to do so.

Autonomy:

• Service providers are free to determine what accessibility options make the most sense in their particular business. Ideally, communicating with a person with a disability on what would be the best way to service them will result in the best solution. However, the Act does not mandate absolute requirements, such as making all doors and aisles wheelchair accessible.
• Providers can set up their own Feedback Processes to get feedback from those with disabilties, which may be integrated into existing feedback mechanisms.

• Self-reporting of compliance through annual "Accessibility Reports" for businesses with at least 20 employees.

AODA: Challenges employers may face

Impact on your bottom line:

• Costs for training staff, modifying structures, establishing policies/procedures, and purchasing any assistive devices for internal use (i.e. scooter with a basket) are to be absorbed by the employer.

• Providing sufficient time for a customer who needs significant extra time to complete a transaction with you without rushing them (in order to comply with principle of "Dignity") may force provider to hire additional staff or have other customers dissatisfied with their service.

Unintentional non-compliance:

• An employer that installs a TTY (Telephone Teletype) device for people who are Deaf or have a speech impairment, but does not check the line often enough may be in breach of the "Dignity" and "Equal Opportunity" principles since they are effectively asking disabled person to accept lesser service

• Addressing a support worker rather than the disabled person may be in breach of the standard.

Spontaneous requests and handling non-visible disabilities:

• Communicating with regular customers about the best way to meet their specific needs is good business sense. However, spontaneously being able to meet the needs of new customers may be challenging. In addition, if the nature of the business involves numerous short-term transactions and/or one-time purchases, it may be difficult to prepare for all scenarios.

• Employers may be able to meet common accessibility requirements, but may not be familiar with needs of lesser known disabilities or non-visible disabilities (i.e. brain injury, mental or psychological disabilities). For example, a customer with a mental health disability that makes it difficult to be in crowded space may be offered a table apart from others. This may be feasible for some businesses, especially when provider is aware of the needs of a regular customer. However it may be difficult to provide this special seating "on the spot" for a new customer.

Service animals:

• Most people are familiar with the use of seeing eye dogs, but there are other types of service animals (horse, rabbit, monkey, etc.)  that can be used to assist people with a variety of disabilities (autism, mental health disabilities, those with physical or dexterity disabilities, etc.) that must be allowed in your place of business. If in doubt, a note from a doctor or nurse may be requested.

• Managing the conflicting needs of a disabled person with those of customers or staff members with allergies (related to a service animal) may put the employer in a difficult position.

Proprietary information:

• Some organizations may have concerns about providing proprietary information or intellectual property in written, video or audio format that may be shared with others.

To learn more about the AODA Customer Service Standard and how Clear Path can help your business become compliant, contact Anna at anna@clearpathemployer.com or (519) 624-0800. You may also choose to register for one of our upcoming learning sessions.

By David Guerin, Clear Path Employer Services (2011)

Insights from Nov 29, 2010 teleconference on recent changes at the WSIB:

Check out the Tools section of our website to download a copy of the presentation used by the WSIB during the teleconference.

On Monday the WSIB held one of their promised Stakeholder Consultations via teleconference regarding the new Work re-integration policies.

I was one of the "lucky ones" to have heard about the session, however the 2 ½ hour "consultation" did not reveal many new details. The session started with a walk down memory lane in terms of the previous RTW and Labour Market Re-Entry programs with the WSIB and the "case for change."

The premise sounds good: they envision "Re-integration to decent, safe, and sustainable employment." Alas, I'm unsure that the WSIB has a realistic and practical way of implementing this in the real world. Here are some of the highlights of the content discussed:

Policies:

There are 5 new Work Re-integration policies to replace the 24 existing policies covering ESRTW, re-employment and LMR:

• Principles, Concepts and Definitions (19-02-01)
• Responsibilities of the Workplace Parties (WPP) in the Return to Work Process (19-02-02)
• Determining Suitable Occupation (SO) (19-03-03)
• Work Transition (WT) Plan (19-03-05)
• Work Transition (WT) Expenses (19-03-06)

In addition, there is a new draft NEER policy (featuring the change to a 4 year window). According to today's presentation, this new policy "will not be used by WSIB staff during consultation period," but rather the "existing NEER policy (13-02-02) will continue to apply throughout the course of the consultation period."

So what do these new policies mean for the employer?

We see that the WSIB is looking at different outcomes with this new program, with particular focus on ensuring that the injured worker returns to the injury employer as often as possible. These options include:

• Pre-injury job with injury employer,
• Pre-injury job, with accommodation if required with the accident employer, 
• Work of a comparable nature and earnings to pre-injury job with injury employer, with accommodation if required, or lastly,
• Alternate suitable work with injury employer, with accommodation if required

Obligations of the workplace parties seem simple - maintain early contact, communicate throughout recovery, identify RTW opportunities, make sure to give any relevant RTW info to the WSIB and lastly to report any disputes to regarding RTW.

What is the Work Transition Plan and when does this come into play?

It seems that if there are issues with RTW then the case manager will refer the file to the WTS -Work Transition specialist for review. This will typically happen between 6-9 months of time.

One of the concerns we see here is the issue with recovery and healing times. Currently there are some discrepancies and inconsistencies with regard to healing times and the jury is still out on this issue. When we asked the question of the presenters today, they really didn't have a good answer for us on how the healing times let alone the severity of injury would be determined or if it will be determined consistently by the WSIB.

Young and older workers:

Couple of really interesting changes - one of which is around the young worker and enhanced benefits for this group of individuals that could potentially be earning lower pre-accident earnings. The new system will actually assist them to "achieve higher earnings than pre-injury without significantly increasing the cost or duration of the plan." So at the end of the day this looks a bit like an advantage if you are a younger worker who may not have pursued higher education - Which seem to me among other things to be slightly discriminatory...

The other item we thought was interesting is the "option for workers 55 or over to participate in a self-directed transition program (TP), with full LOE benefits payable for 12 months, following which LOE benefits based on the identified suitable occupation (SO)". We're not quite sure how this will work...and not sure the WSIB knows either.

"We can't force the worker..."

One thing I noticed throughout the session was the frequent use of the words "we can't force the worker." This was used in relation to accepting shift changes or part time work, relocation or even certain types of training. One thing is sure; there will be more worker intervention, input and generally direction by the worker in this new work re-integration program.

Consequences of non-cooperation:

According to today's session, a dispute over "job suitability" does not automatically mean that workplace parties (WPP) are being non-cooperative. However, if parties are being non-cooperative in RTW efforts, there will be penalties:

• For the worker the initial penalty will be a 50% reduction in benefits and the full penalty being full wages reduced.
• For the employer penalties start at 7 days after the written notice of non cooperation and include 50% of cost of lost wages, the final penalty will be 100% of the cost of the worker's wage loss benefits, plus 100% of any costs for providing WT services to the worker.

The light at the end of the tunnel here is that for an employer that breaches both a co-operation and re-employment obligation in the same claim, the WSIB will apply a single penalty however, the presenters were not able to confirm if this will be applied over and above any NEER surcharges or as a separate penalty.

Next Steps:

If you would like to discuss the changes to the WSIB in more detail, please don't hesitate to contact Anna Aceto-Guerin, CHRP at anna@clearpathemployer.com or call (519) 624-0800

Article on www.payscale.com states that there is much to be learned (from an HR perspective) from the much-publicized case of a frustrated Jet Blue flight attendant who had a dramatic resignation, including a dramatic exit from the airplane, after dealing with an unruly customer.

The individual is being celebrated as a hero for all those who can empathize with the difficulty in servicing unpleasant customers. But HR professionals know that his actions reflect a number of issues that impact many workplaces.

Check out the article here.

August 22nd article in The Toronto Star that discusses concept of unpaid overtime for workers and managers equipped with technology, including the Blackberry smartphone, and whether or not time spent replying to work-related emails after work hours consitutes unpaid overtime. The fact that some employers expect or demand workers to respond to work-related emails and telephone calls 24/7 is also discussed.

It should be noted that there are currently 3 class action law suits, including the suit by CIBC bank tellers against their employer, involving this issue.

http://www.thestar.com/news/world/article/850947--blackberry-overtime-technology-creating-around-the-clock-workers

Article outlines the idea of termination with cause and a unique situation where Human Rights came into play surrounding religion. The article gives some valuable lessons for employers.

Link to article

Informative article about the employer's duty to accomodate an employee's injury or illnes. The articles discusses two very different cases from the Supreme Court of Canada regarding the employer's duty. Also outlined, are a variety of tips that you can use to be sure that you are doing everything possible to ensure your employee returns to work.

Link to article

An interesting article from Earl Altman at First Reference Talks outlining the employer's duty to accomodate an employee's injury or illness and examples seen in court outlining different definitions of accomodating employees. Article was posted on Tuesday July 20th, 2010.

Link to article

Bizarre video of an Ohio woman becoming violent and vandalizing a McDonald's drive-thru window when she was not able to purchase Chicken McNuggets during the early breakfast hours. The incident occured in January 2010 but was released to the media in August 2010.

http://www.theglobeandmail.com/video/mcnugget-rage-grips-woman/article1667750/

Story details how a man with a pistol held up a Toronto restaurant for several hours. The restaurant was evacuated, but the manager had to lock himself in an office for protection. Thankfully, the incident ended and the man was arrested before any injuries occurred.

http://www.cbc.ca/canada/toronto/story/2010/07/23/toronto-swiss-chalet.html

A Toronto Star article that outlines the new changes being made to the WSIB's Labour Market Re-entry program:

http://www.thestar.com/news/investigations/workplacesafety/wsib/article/831165--wsib-fixes-troubled-injured-worker-re-training-program

The Ontario government is instituting the Harmonized Sales Tax (HST) of 13% on nearly all goods and services as of July 1, 2010.