Clear Path was fortunate to have the Mr. Jean-Serge (JS) Bidal, Executive Director of Strategic Revenue Policy at the WSIB, speak at our recent customer appreciation event.
Mr. Bidal provided some insights into the proposed Rate Framework changes at the WSIB, which are expected to come into effect in 2019 and will significantly change the way employer premiums are set and will eliminate the current process of giving surcharges and refunds.
A more detailed look at the proposed changes can be found here.
Here are a few of the highlights of the Rate Framework changes:
If the NEER system is being replaced, why should employers care about it?
Excellent question. In fact, understanding and improving your NEER experience is more important than ever.
As the WSIB transitions to the new system it will need to determine where to place your company along the "Risk Band" range for the premiums in your new rate group. Mr. Bidal shared with our group that a significant factor in that decision will be made by looking at your historical experience and claim costs.
Here are some ways to improve your company's NEER experience now and increase your chances for lower premiums in the new system:
How can you learn more about NEER and claims management best practices?
Clear Path offers an one-day workshop that gives an Introduction to the NEER Program and WSIB Claims Management.
It is jam-packed with useful information and dives into 10 real-world scenarios to help demonstrate how everyday decisions can signficantly impact your NEER claim costs. New for Fall 2016, it also delves into the proposed Rate Framework changes so you'll have a better understanding of what's coming in the future.
Sessions are held in Cambridge and Mississauga in September 2016. Register now to take advantage of early bird savings! Click here to learn more or to register.
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There are a lot of moving parts when managing a WSIB claim, especially one that has become prolonged or complex.
Ensuring that your company is compliant with Health & Safety best practices and procedures will likely result in reduced workers’ compensation costs.
The same can be said with respect to regular Human Resources practices and procedures. The problem is that busy claims managers sometimes lose sight of this while they attempt to juggle all the moving pieces of a claim.
Here’s one tip that may help save busy HR professionals from incurring needless costs:
Filling in Record of Employment form correctly:
Record of Employment or ROE is a form that employers complete for employees receiving insurable earnings who stop working and experience an interruption of earnings. The ROE is the most important document related to accessing the Employment Insurance (EI) program. Regardless of whether the employee intends to file a claim for EI benefits, an employer must issue an ROE when:
Connection to the WSIB's Re-Employment Obligation:
WSIB policy states employers have an obligation to “re-employ” their injured workers when a claim closes as long as certain criteria are met. This is known as the re-employment obligation. If a worker is medically able to come back to work, the employer is required to offer to “re-employ” the worker in the position that they held on the date of injury or offer to provide comparable work in both nature and earnings.
In situations where a worker may not be medically capable of returning to their pre-injury job, but can do suitable work, the re-employment obligation requires employers to offer the worker the first opportunity to accept suitable employment that may become available. However, if the employer does not have suitable work available at that time, the obligation still applies every time a suitable job becomes available throughout the period of the re-employment obligation.
In order to enforce this policy, the WSIB levies penalties on employers who are in breach of their obligation. If a worker is terminated within the first six months of the re-employment obligation, WSIB will automatically presume that the employer did not fulfill the obligation. Generally, the penalty is based on the worker’s actual net average earnings for the year before the injury and is not subject to a ceiling.
What if worker maintains they have been terminated within the first six months?
There are many times when a claim can become contentious. Perhaps the employer feels the injury was never work-related, there may have been return to work issues, one of the workplace parties may have been non-cooperative, or there could have simply been a misunderstanding.
Whatever the reason, what do you do if a worker states maintains that they have been terminated and yet was not?
Even though WSIB will automatically presume a breach to the re-employment obligation within the first six months, they will allow the employer a chance to rebut the accusation before they determine whether to levy a penalty. Under policy, it is the employer’s responsibility to prove a breach did not occur.
This is where the Record of Employment (ROE) comes into play! By submitting an issued ROE indicating the worker remains off work for medical reasons (Code D) as opposed to being terminated (Code M), the WSIB will consider this sufficient proof that the employer did not breach their re-employment obligation.
A worker received loss of earning (LOE) benefits from the WSIB for a workplace injury because the employer did not have modified work suitable for the worker’s restrictions and limitations. The WSIB later determined the worker’s compensable injury recovered and terminated her benefits. However, the worker continued to have limitations and restrictions related to a non-compensable, pre-existing condition.
The worker in question did not understand that her employer still did not have suitable modified work available for her and that she now needed to apply for E.I. benefits. The worker also had not heard from her employer regarding her employment status and told her WSIB case manager that she thinks her employer may have fired her.
To rebut the accusation, the employer provided the WSIB with a copy of the ROE issued when the worker started to receive LOE benefits (under the seven-day-rule). That ROE indicated the worker experienced an interruption of earnings (LOE benefits) due to medical reasons (Code D). The employer further explained that no other ROE (such as one stating the worker was dismissed or Code M was issued, proving the employer did not terminate the worker. From the employer's perspective, the worker merely continued to remain off work for medical reasons.
Ultimately, the WSIB agreed that the employer was not in breach of their re-employment obligation and the company was saved from being levied with a significant penalty.
Bringing It All Together:
Do you have questions about the Re-Employment Obligation or about general HR practices? Contact Clear Path's Anna Aceto-Guerin for a free 15-minute consultation by email at email@example.com@clearpathemployer.com or by phone toll free at (888) 336-0950.
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How many times have you looked at your WSIB NEER Statement and thought “if only I had done things differently”?
Clear Path recommends that employers utilize a number of different strategies to reduce WSIB costs. One strategy is to ensure you have instituted effective Early and Safe Return to Work (RTW) practices and procedures, including making an offer of suitable modified work for those employees who require modified duties.
One thing we often hear from new clients is that modified work was not offered to an injured employee because all they were provided was the frustratingly standard (and useless) doctor’s note that simply stated “off for two weeks.” Many employers think that the medical professional’s word is law when it comes to WSIB claims, so when they are provided with such a note they assume doctor’s orders must be followed. However, what many employers fail to understand is that the difference between a lost time and no lost time claim often lies in the suitability of modified work, despite the existence of a “two weeks off” doctor’s note.
Interesting case study:
Clear Path recently consulted on a claim where a worker lost the tip of his middle finger after accidentally crushing it in a machine. The worker immediately sought medical attention and provided his employer with a surgeon’s note that stated the worker should remain off duties until he could be reassessed by the surgeon a week later. The employer was not provided with limitations or restrictions for the worker (typically found in a Functional Abilities Form or FAF) and because of the severity of the accident, assumed that they were looking down the barrel of a costly lost time claim. Clear Path however instructed the employer to immediately offer the worker suitable modified work at modified hours, despite the surgeon’s note.
What counts as suitable modified work?
WSIB policy is clear when it states that suitable work means “post-injury work that is safe, productive, consistent with the worker’s functional abilities, and that, to the extent possible, restores the worker’s pre-injury earnings.”
If I wasn’t provided with a FAF form, how can I offer work when I don’t know what the worker can do?
This is a little trickier to answer, but sometimes the answer lies in common sense. If a worker lost the tip of his finger he likely will not be able to use that hand and will likely have stitches. Standard restrictions for an injury such as this suggests that the worker should refrain from repetitive movement or use of the hand and should remain in a clean environment until the stitches are removed to avoid infection.
What did the client do?
Our client therefore offered the worker modified work at reduced hours both verbally and in writing in the form of a RTW Plan. The worker however rejected the modified work and stated he wished to follow his surgeon’s recommendations.
If a worker rejects modified duties, what do you do?
Clear Path submitted an objection letter along with the Form 7 and stated that loss of earnings should not be allowed in the claim as the employer offered modified work to the Employee and requested that it be reviewed for suitability. The Eligibility Adjudicator reviewed the information and allowed the claim for health care benefits only and stated she was unable to support loss of earnings as the worker was offered modified duties. She transferred the claim to a case manager however to rule on the suitability of modified work. The case manager requested the surgeon’s report in order to obtain more fulsome information about the worker’s functional abilities and restrictions. As one can imagine, this information takes time to obtain.
What do I do while WSIB is reviewing the information and the worker remains off work?
Clear Path recommended that the employer remain in regular contact with the worker and to encourage him to participate in RTW planning in order to mitigate his/her potential financial loss. The worker did eventually participate in the RTW planning and the employer, worker and union agreed on a suitable RTW schedule.
What was the WSIB decision?
The case manager eventually ruled that the description of the original modified work listed in the RTW Plan was consistent with the functional abilities provided by the surgeon’s report. She further stated that the loss of earnings the worker experienced when he remained off work based on the surgeon’s recommendations were therefore not in order.
Bringing It All Together
Are you experiencing RTW difficulties with an injured worker? Contact Clear Path's Anna Aceto-Guerin to book your free 15-minute consultation.
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Each April 28th serves as an opportunity to pay our respects to the thousands of workers that have been killed, injured or suffered illness resulting from work-related incidents and to reexamine the safety practices in our workplaces.
The National Day of Mourning was established in 1984 by the Canadian Labour Congress and was officially recognized by the federal government in 1991. The observance of this day, also known as Workers' Memorial Day, has spread to over 80 countries worldwide. Observance of this day is being heavily promoted by the Workplace Safety & Insurance Board (WSIB) on radio and television.
This holiday remains important because despite increased health and safety awareness, workplace accidents and fatalities still happen. This week alone, a collision near a construction site near an Ottawa highway killed one worker and left another in critical condition. Also this week, management at a Cochrane, Ontario mine were charged with criminal negligence causing death following an accident in 2015.
In 2014, the Association of Workers’ Compensation Boards of Canada recorded 919 workplace deaths in Canada. That represents more that’s 2.5 deaths every day according to the Canadian Centre for Occupational Health & Safety. In Ontario, a total of 1,147 critical injuries (not necessarily fatal) were reported to the Ministry of Labour in the period of 2014-2015.
Ontario's WSIB encourages businesses to participate in this day by observing a moment of silence at 11:00 a.m.. The goal of this annual observance is to create awareness about the importance of Health & Safety Programs in the Workplace and establishing safe work conditions for all. The Canadian Centre for Occupational Health & Safety states: "It is as much a day to remember the dead as it is a call to protect the living."
Maintaining a "culture of safety" at your business is critical for protecting the well-being of your employees and for creating a productive, effective working environment. Not meeting the required standards can result in fines, lost productivity and direct involvement by the Ministry.
Clear Path recommends the following tips for implementing and managing your Health & Safety Program:
• Create and Maintain a written health and safety policy and program
• Ensure that your company complies with the Occupational Health & Safety Act and Regulations
• Documented system for identifying, reporting and responding to hazards
• Establish safe practices, procedures and controls for the hazards identified
• Provide training to all employees: managers, supervisors and workers
• Communicate regularly with employees about foreseeable health and safety hazards
• Allocate adequate time and resources to the health and safety program
• Monitor and audit your program on a regular basis
If you have questions about your company's Health & Safety program or would like to speak to an expert, please don't hesitate to contact Anna Aceto-Guerin at firstname.lastname@example.org or (519) 624-0800.
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Every employer knows they have an obligation to provide reasonable notice payments (and possibly severance) when they terminate an employee in a “not for cause” situation.
In essence, an employer is to provide a financial payout to the employee that should cover their expenses for the amount of time typically needed to secure a comparable position at another company. More money is paid out for longer-term employees, those in senior positions, and those whose age may make it difficult to find another position.
Did you know that employers have a reciprocal right to reasonable notice from an employee who decides to leave the company, especially when it will be difficult to replace them? Did you know that an employer can sue a former employee if sufficient notice was not provided? But, did you also know there may be good reasons not to pursue this course of action?
What can an employer do if they don’t receive sufficient notice?
Workers in highly complex jobs are often harder to replace, meaning that the employer typically needs more than the standard two weeks notice to find a replacement.
Renowned employment lawyer Howard Levitt, tackled this issue during a recent episode of his weekly radio show on NewsTalk 1010 (listen to the podcast here):
“The question the Court will ask… is how long should it take that employer to find a suitably qualified replacement for that employee and train them and get them up-to-speed? If the answer is six months and the employee gives two weeks, the employer can sue the employee for damages they have suffered from not getting the extra five and a half months notice from the employee. It could be quality issues, it could be [loss of] sales, could be recruitment costs, could be any of a number of things. Whatever damages he suffers for the length of notice that he didn’t get relative to the length of time it should take to replace the position, that’s what he could sue for.” (Source)
Clear Path’s Anna Aceto-Guerin suggests the best place to start may be a conversation with the employee rather than a lawsuit. If the employee is leaving on good terms, they may be willing to stay long enough to train their replacement, even if it is on a part-time basis. Things get complicated when they are departing for a new job elsewhere. Their new employer may not be willing to wait the length of time the original employer needs for them to begin. In that circumstance, the original employer will need to decide if they are willing to take legal action and whether they are willing to deal with the unhappy employee.
Why do employers decide not to sue?
According to Levitt, most employers do not sue departing employees mostly because they are not aware of the option. Others may think it’s “bad corporate imaging to sue an employee.”
Aceto-Guerin concurs and also states: “Typically you do not want to keep an employee in your company who does not want to be there, even if you have the legal right to delay their departure. The impact they could have on your company’s productivity, your customers, and the influence they could have on other employees must be taken into consideration.”
How do you assess reasonable notice from an employee?
When determining how much time is necessary for reasonable notice, here are a few things to consider:
Successful $20 million case:
Failure to provide sufficient notice of resignation can be determined to be a breach of contract. Lawsuits against an employee for failing to provide reasonable notice are rare and typically only commenced against individuals alleged to be fiduciary employees and when substantial damages are at issue, such as in the case of GasTOPS Ltd. V. Forsyth.
In this case, four senior employees gave two weeks notice of their resignation after which they began a competing firm soliciting several of their former co-workers in the process. GasTOPS sued the four employees for breaching their fiduciary duties for misappropriation of confidential information, trade secrets and corporate opportunity. The company further stated that the employees failed to provide reasonable notice of their intention to resign.
The trial judge determined that the employees had breached their fiduciary duties and failed to give reasonable notice of their intention to resign. The judge ruled that the employees knew they had given inadequate notice and did so with the intent of destroying GasTOPS by rendering it unable to fulfil existing contracts or pursue new opportunities. Based on these facts, the trial judge held the employees ought to have provided GasTOPS 10 to 12 months’ notice, and awarded GasTOPS almost $20 million in damages, including prejudgment interest and costs.
What can you take away from this case?
An organization can affect how much time they request for reasonable notice from an employee depending on how they react to the employee’s announcement of departure. If an employer never requests a greater period of notice and accepts the short departure notice, they cannot go back and sue the employee for damages for unreasonable notice. Ensure that when requesting for extended notice, you can provide evidence as to why this would be necessary to have.
Have any questions?
Have any additional questions about setting up workplace policies for your employees? The HR professionals at Clear Path are here to help. Contact Anna Aceto-Guerin at email@example.com or toll free at (888) 336-0950 to get started.
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With many employers expecting to have workers engaging in St. Patrick’s Day festivities, which can include partaking in some alcoholic beverages, it is important to ensure that your organization has a solid Substance Use policy in place. By enforcing this type of policy, you can promote a safe and healthy environment for your employees.
A Substance Use policy should outline the rules and restrictions surrounding alcohol, drug (both prescription and non-prescription), and tobacco use. It should also include the use of e-cigarettes and vaping tools, which have increased in popularity recently.
Important Elements to Include in your Company’s Substance Use Policy
Substance abuse and the Human Rights Code
While setting expectations that employees wait until after work hours to take part in any St. Paddy's Day celebrations and dealing with one-off breaches to your policy may be expected, it is important to remember that Ontario's Human Rights Commission views dependence on substances as a form of disability.
Individuals who are perceived as having an addiction or dependency due to alcohol or drug use, or those who have had alcohol and drug addiction/dependency in the past will be protected under the Human Rights Code. When dealing with this type of disability in the workplace, accommodation in order to perform the essential duties of a job is required to the point of undue hardship. Undue hardship in this case would include health and safety risks to workers or members of the public that outweigh the benefits of providing equal treatment to the worker with an addiction or dependency.
Source: Ontario Human Rights Commission website
How can I help accommodate my employees?
In accommodating an individual who suffers from this type of disability, the individual does have the responsibility to communicate the need for accommodation and co-operate in accommodation efforts.
If the individual’s drug or alcohol addiction or dependency interferes with their ability to perform essential duties of their job, as an employer you must provide support to enable your employee to undertake a rehabilitation program, such as an EAP (Employee Assistance Program), unless you can prove that this type of accommodation would cause undue hardship.
As an Employer, you are responsible and liable for the safety and well-being of your employees. Through providing your employees with a written policy, and accommodation to the point of undue hardship, it is possible to mitigate costs that may be associated with potential lawsuits.
Have any questions?
Have any additional questions about setting up workplace policies for your employees or managing an employee with substance abuse issues? The HR professionals at Clear Path are here to help. Contact Anna Aceto-Guerin at firstname.lastname@example.org or toll free at (888) 336-0950 to get started.
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Clear Path was recently awarded an objection to initial entitlement for one of our customers based on the WSIB's Traumatic Mental Stress policy (15-03-02). Even though our efforts proved successful, this case provides a valuable lesson for other employers helps to illuminate what meets -- and what does not -- the definition of a traumatic event according to the WSIB.
What is policy 15-03-02?
The WSIB policy on Traumatic Mental Stress entitles a worker to benefits for traumatic mental stress that occurs suddenly in an event arising out of and while in the course of employment.
The event that occurs may involve actual or threatened death or serious harm against the worker, a co-worker, a worker’s family member or others. For the event or incident to be considered traumatic it must be clearly and precisely identifiable, objectively traumatic, and unexpected in the normal or daily course of the worker’s employment or work environment.
There are some restrictions to this policy. There is no entitlement for traumatic mental stress due to an employer's decisions or actions that are part of the employment function such as terminations or demotions. As well, workers who develop mental stress gradually over time due to general workplace conditions are not entitled to benefits.
What is the criteria to be covered under policy 15-03-02?
What was the scenario for this particular claim?
The worker claimed that he was suffering from stress after a physical altercation that was started by another employee. Following the altercation, he left the workplace and returned later in the day to deliver a doctor’s note that would allow him a month off.
The worker returned to work the following week, providing his employer with a Form 6 stating that he wished to commence a WSIB claim. The employer offered the worker modified work with arrangements to work from home after the employee indicated through a Functional Abilities Form (FAF) from his doctor that he would be too stressed to come to work. The worker rejected the modified work further stating that he would be unable to work from home as a result of the stress.
Possible outcomes for this case?
A claim for Traumatic Mental Stress can cost a company hundreds of thousands of dollars. Here’s what Clear Path team member Jessica Masse says about it.
“One month of loss of earnings is the tip of the iceberg. Those who are granted LOE under this policy, Traumatic Mental Stress can rack up costs in the form of healthcare and LOE benefits. In this case, one month could have easily turned into two and so on. The result of all these costs will stay on a company’s NEER statement for four years.”
Why doesn’t this case translate into entitlement for the employee?
In the Form 6, the worker stated that he "had merely brushed the arm of the work crew member after he had received his work assignment." When the employer investigated the incident, witnesses told a different story. Five witnesses that had seen the event claimed that the worker was providing inaccurate information and that the worker in question grabbed the arm of the other employee -- which initiated the altercation.
The altercation described above does not meet the criteria of the WSIB's policy, as it does not qualify as traumatic and a person feeling insulted by another employee does not translate to harassment.
The WSIB agreed that there was no basis for the worker’s claim of being approached aggressively or harassed. The worker who filed the claim was the individual who initiated inappropriate physical contact by grabbing the work crew member’s arm.
As a result of this false claim and the company's policy related to workplace violence and harassment, the employer found grounds for termination of the employee.
What other HR lessons can we learn from this case?
Even though the company avoided the potentially high WSIB claim costs when the claim was denied, there are some additional things to consider from an HR perspective.
When a situation occurs that involves workplace violence or harassment, employers will be in a better position to take action if they are fully compliant with the amendments to the Ontario Occupational Health & Safety Act in 2010 (also known as Bill 168). By having up-to-date policies realted to workplace violence and harassment, you have a policy in place to ensure the termination of a violent employee. In this case, the company did have such a policy in place and was able to take appropriate actions against the offending employee.
Another wrinkle in this case is the fact that the employee attempted to file a claim both through the WSIB and the company's Short-Term Disability program for the same incident (which was also denied). Employers should be aware of such "double dipping" attempts by employees and take appropriate actions accordingly.
If you have any questions about WSIB claims management, including how to object to the initial entitlement of a claim, we would love to hear from you. Contact Anna Aceto-Guerin at email@example.com or toll free at (888) 336-0950.
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When you object to the initial entitlement of a WSIB claim, in effect having it denied outright, there are several considerations you should keep in mind. Clear Path’s Anna Aceto-Guerin answers some questions about the process:
What are some reasons that you would object to a claim?
There are several reasons why an employer objects to the approval of a WSIB claim, but the most common reasons are:
When should you object to the validity of a claim?
If you wish to object to initial entitlement, it is important that you do so immediately. Ideally, you are including your intention to object on the Form 7, along with the results of your internal investigation and witness statements.
At minimum, indicate on the Form 7 that the investigation is ongoing and that you will be submitting documentation shortly. Once the WSIB has decided to accept entitlement in a claim, it is very difficult to have it overturned. You have a much better chance of having it denied outright then having an accepted claim overturned. Once benefits are flowing, the case manager is not likely to stop those easily.
What is the best way to have success with your objection?
Include as much evidence as you can along with your objection. That means performing an investigation after every accident or injury. Go to the actual location of the incident. Get pictures. Get a written statement from the injured worker as to exactly what happened (in addition to their Form 6) as well as any witnesses, ideally using your company’s own worker or witness statement forms. Review video surveillance footage if it exists.
This is where a lot of employers fall down. They just take the Form 6, fill out a Form 7 and submit it. Later, they may discover that they have concerns, but it may be too late.
What if you feel the injury or illness is non-occupational?
Just because you don’t agree that an injury is work-related doesn’t mean that the worker isn’t having an issue or that you shouldn’t support them through their recovery and return to work.
f you think the worker’s issue or injury may be not work related or compatible to their normal work duties, you should let the worker know and point them towards your company’s sick days or Short-Term-Disability (STD) benefits programs if they require lost time. Let them know that you will accommodate them (as per Human Rights obligations) and support them in their recovery regardless of it this is work related or not.
We recently helped a client to object to a claim for a worker who had injured himself playing baseball. He was later diagnosed with a ganglion cyst and claimed this was work-related. We argued against this and the claim was denied.
How do you prove that an injury is not compatible with the duties of a job?
Having a Physical Demands Analysis (PDA) for each position in your company will provide you with clear evidence to provide to a WSIB Adjudicator, so they can more readily determine compatibility. It also can serve as an effective tool during the Return-To-Work process for an injured worker.
In the absence of a PDA, an employer can still argue that an injury is not consistent with the duties of a job. Provide as much evidence as possible to support your argument, including pictures and written description of the job.
Do you have a real-world example of an injury that was not compatible?
We recently helped a customer with an employee claiming that the exertion he needed to “turn” the steering wheel in the company’s forklift caused him to injure his shoulder. However, we successfully argued that the turning mechanism on the machine can be moved with the effort of one finger and does not require any “cranking.” We were able to provide pictures of the machine and more detail of how it is used in different applications so the case manager had a better idea of the effort required. The claim and initial entitlement, was denied.
Would there ever be a time that you wouldn’t submit a PDA, even if you have one?
Interesting question and difficult one to answer. You may object and have a verbal conversation with the claims manager, but you may not want to send the PDA if it doesn’t support your argument. If someone has only been doing the job for a short period of time and claims a repetitive strain and the PDA actually identifies a potential risk of that, then the WSIB is going to automatically approve -- regardless of the fact that the duration in that job does not support the claim. In those instances, we would recommend considering not submitting the PDA.
Any final thoughts?
Consider utilizing a medical professional as part of your claims management process. If you have access to a nurse or other medical professional onsite, have them get a health history from the worker (especially for gradual onset claims). If you don’t have access to one, consider utilizing external medical resources. They will assist with return to work and at time can also assist with determining compatibility with a job and the injury itself. At minimum an investigation is always a good idea. If all fails don’t hesitate to reach out for assistance, sooner rather than later.
Where can employers come for assistance with this process?
If you have any questions about WSIB claims management, including how to object to the initial entitlement of a claim, we would love to hear from you. Contact Anna Aceto-Guerin at firstname.lastname@example.org or toll free at (888) 336-0950,
We'd love to connect with you!
Is veganism the next protected human right?
A vegan advocacy group is arguing that recent revisions to Ontario’s Human Rights legislation which expanded the definition of the protected ground "creed" to include“non-religious belief systems that… substantially influence a person’s identity, worldview and way of life” open the door to further protections for its adherents.
Critics argue that the Human Rights Code was put into place to combat real persecution based on an individual’s religion, culture or ethnic affiliation. They worry that including things such as veganism under the creed protection allow for fringe beliefs or those from less-than-respected sources to also be included. They also argue that such a broadened interpretation will eventually weaken the effectiveness of the Human Rights legislation.
What are the new revisions to the Human Rights Code?
In its first revision since 1996, the Ontario Human Rights Commission modified the definition of the protected ground "creed" in December 2015. The changes expand what falls under the definition of “creed” to include protection of secular, non-religious beliefs under certain conditions, which many believe aligns with the legal and social developments in Canada over the past two decades.
The updated policy uses a five-pronged approach to determining whether a belief system qualifies as a legally protected creed:
How are vegans affected from this revision?
A vegan is an individual who only eats food derived from plants (excluding all meat and dairy products) and who has a belief system that opposes harming animals or using any animal by-products. For animal rights advocacy groups, such as Animal Justice, this revision is a big victory. After many years of fighting for representation under the creed ground, the advocacy group sees this as an opening for protection of the rights of ethical vegans.
It is important to note that the current legislation does not explicitly include veganism or vegetarianism, but it may lead to precedent-setting decisions in the future.
If the Commission does recognize veganism under the creed protection, vegans would have a legal right to accommodation in instances where they are being excluded or discriminated against. In addition to food choices, this could include cases where employees refuse to wear a work uniform made with an animal-based component such as a leather or certain soaps and cleaning products.
The OHRC’s response:
Renu Mandhane, chief commissioner for the OHRC, was quoted in a recent National Post article: “We did hear from (vegan and animal rights groups) and I have a lot of respect for their advocacy… but in framing the definition, that is not the group that we were attempting to address. That’s not to say the tribunal might not find… in a certain instance for that to qualify as creed,” said Mandhane. “But that wasn’t where we were going.”
“Somehow this has been spun out to suggest that our policy says that ethical veganism is a creed, which it doesn’t,” she said. “The tribunal is the place to make these decisions because its decisions are made based on facts.”
"Instead, the aim was to provide an update that hedged against growing religious persecution in some areas, particularly against Muslims, and to make it more inclusive of, for example, atheists or those who practice an indigenous spirituality."
What will this mean for your workplace?
Even though the Human Rights Tribunal has yet to rule that veganism as a protected belief system under creed, this issue does raises some question about how accommodating – whether in an official or unofficial capacity – your workplace is regarding the needs of employees with non-traditional beliefs, including vegans.
This could mean altering your work uniform to avoid using any animal by-products or offering vegan options in your workplace cafeteria or restaurant. Even if this is not legally required, a benefit could be improved employee morale and the perception that you are responding to the changing needs of your workforce.
What do you do to cater to the needs of vegans or non-religious beliefs in the workplace?
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With Valentine's Day approaching, we've been thinking about romance in the workplace and how it can impact your organization.
Office romances can be a headache for employers, leading to water cooler gossip, accusations of favouritism (especially if there is a love connection between people with a reporting relationship), and even the risk of a sexual harassment complaint. But managing the situation with proper policies and sensible management techniques can keep love in the air without negatively impacting your business.
Policies help set the ground rules:
Don't wait until after romance has bloomed before tackling this topic with your employees. Ensure that all team members are aware of your expectations for acceptable behaviour, along with what types of behaviour would be considered harassment, by having clearly written employee policies. Clear Path's Anna Aceto-Guerin shares:
"Written policies send the message that employees should not let romantic relationships affect the professional work environment. They will also clearly define what type of behaviour is inappropriate and what they should do about it if they are being harassed."
Cupid's arrow doesn't justify a drop in productivity or professionalism:
Senior HR consultant Margaret Sullivan Williams adds that managers have the right to demand productivity from their workers, regardless of their romantic situation:
"When a relationship distracts from the workplace's goals and undermines the effectiveness of the involved employees, it has gone too far. Managers need to sit down with both employees and clarify the expectations of the workplace with regards to romance. Or encourage them to get a room - after work!
Your company may be liable for an employee's harassing behaviour:
Not all expressions of romantic interest are welcome or appropriate, particularly in the workplace. Some of these actions could even lead to legal issues for your company.
In 2010, the Ontario government expanded the Occupational Health & Safety Act with Bill 168 which placed explicit obligations for employers to protect employees from workplace violence and harassment. Failing to take concrete steps to prevent harassment, including sexual harassment, can leave employers to potential fines and charges.
In 2015, Kathleen Wynne's government launched a high profile campaign to raise awareness of sexual harassment and violence, called "It's Never Okay." In October, it introduced legislation that added additional obligations for employers, including the duty to ensure that any complaints are appropriately investigated.
Don't oppose, disclose!
Some workplaces have debated restricting office relationships. However, the reality is that this would likely drive any employee relationships "underground" and not shield you from potential issues.
Your best precaution is to require those involved to disclose that they have entered into a consensual romantic relationship to management. This allows for confirmation that the relationship truly is consensual and offers the opportunity to inform the two parties of your workplace harassment/sexual harassment policies, how to report complaints and most importantly expectations around conduct while in the workplace environment.
Clear Path's Michelle Strassburger explains:
"It's all about disclosure. Office romances don't always cause a conflict. However, ensuring that a reporting relationship does not exist is paramount to guarding against potential complaints of preferential treatment or sexual harassment."
Avoid the legal ramifications often associated with workplace relationships by planning ahead and providing your employees with guidelines and education on the topic of office romance in your workplace before Cupid’s arrow strikes.
Looking for advice on how to handle an employee situation or how to establish HR policies for your workplace? Contact us today.
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Did you know that Friday, Jan. 29th, 2016 is International Fun at Work Day? This may not be the most commonly known holiday, but it can be a great reminder to consider the culture at your workplace and the benefits of ensuring that employees are enjoying (at least part) of their work day.
Why including fun at work is important:
HR experts like author Bob Nelson (1001 Ways to Motivate Employees) and columnist Steve Strauss, both have a myriad of reasons why employers should incorporate some fun into each work day, including:
Concerns employers may have:
Many find it counterintuitive to incorporate fun into the workday as a way to increase productivity. In fact, they worry it will drastically reduce outputs. Some other top worries include:
Tips for HR managers and employers:
Clear Path's HR consultants have some suggestions for employers to consider:
Ensure that the nature of the "fun" is tasteful and appropriate for your workplace. Remember that what's fun for one person is not necessarily so for another. The fun activity should never be at the expense of an employee or customer. If your company is large enough, it may also be a good idea to allow different departments to design their own activities rather than applying a "one size fits all" approach.
Some additional tips:
How we have fun at Clear Path:
We believe in incorporating fun into our workplace so much that we included "Having Fun" as one of our nine corporate values (see our full list here). Here are the describing statements regarding this value:
Putting this value into practice, we enjoy several special events throughout the year, including a team lunch each month with a different theme (Oktoberfest, Chinese New Year, Summer BBQ), participating in charity events like the Terry Fox Run, and celebrating birthdays and customer victories at our monthly team meeting.
How do you have fun at your work? Share your ideas in the Comments.
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This week marks the 75th anniversary of one of the greatest blunders in communication of all time and serves as a warning for managers who refuse to listen to feedback from employees.
On Jan. 27th, 1941, U.S. ambassador to Japan Joseph Grew cabled the U.S. State Department with information obtained from the Peruvian ambassador that Tokyo was planning a surprise attack on Pearl Harbor in Hawaii. His warning was ignored and when Japan did attack on Dec. 7th, it resulted in the loss of 2,403 American lives.
Of course, most businesses won't face the same kind of life-or-death consequences if they ignore feedback from their employees.
But those whose culture does not encourage team members to share their ideas and concerns with upper management (or who routinely ignore comments when they are shared), will almost certainly have to deal with the loss of employee engagement, loss of potentially profitable ideas, and the loss of visibility to important concerns from those "in the trenches." On the flip side, those who do value and implement suggestions from employees will see increased an energized workforce with greater levels of loyalty to the organization, safer work environments, and potentially boosted profits.
Here are some tips on how to develop mechanisms for employees to share feedback with upper management:
1. Management meetings don’t have to be exclusively for management
2. A feedback box can go a long way
3. Reward and encourage the sharing of ideas
4. Understand the value of a finding a "neutral ground" for communications
So those are our suggestions, do you have other unique ways to encourage communication between all the members of your organization? Share your thoughts in the Comments section.
If you'd like to discuss issues your company is having with communication betwen managers and team members or resolving any other people-related challenges, contact Clear Path's Anna Aceto-Guerin at email@example.com or (519) 624-0800. We look forward to hearing from you!
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News of the recent deaths of several well-known celebrities, including music icon David Bowie, Eagles co-founder Glenn Frey, and renowned actor Alan Rickman, got us thinking about the touchy subject of death and grief in the workplace.
The way a workplace manages the challenges around grieving employees, whether a fellow employee has died or when a team member has suffered a loss in their personal lives, makes a tremendous difference to employee morale and connectedness to your organization. Mishandling the situation can bring a landmine of HR issues and potentially hurt feelings. The best way to handle it is to plan ahead and take steps to ensure managers treat employees fairly and consistently.
Losing a team member
In the unfortunate event that a colleague passes away, you should not underestimate the feeling of loss and disruption in your workplace. Eyes will be on the management team to see how it reacts and if it allows time for adjustment after such a loss. The sudden, unexpected death of a co-worker will require you to deploy different strategies than if someone has succumbed to a long-term illness. But either way, you should not expect fellow employees to take the loss lightly.
Management must communicate to fellow team members about the loss in a way that is caring and respectful. Take the time to gather employees together to share feelings and discuss next steps, which could include holding a memorial for the individual or arranging for anyone interested in attending the funeral the ability to do so. Ensure that you are consistent in your approach and remember that regardless of the length of time the deceased was with the company or the seniority of their position, the impact of the loss to the organization may still be a difficult one.
Anna Aceto-Guerin, senior HR consultant at Clear Path, encourages employers to utilize their Employee Assistance Program (EAP) during these situations by reminding team members to take advantage of the program. Depending on the circumstances, management might consider providing a grief counselor on the premises to assist with the aftermath following the news of an employee's passing. The benefit of EAP intervention is that employees can speak to a counselor in private and be provided with strategies to handle their loss. The grieving process is different for everyone and you must be patient during the weeks and months following a loss.
Time off for grieving
Things could get tricky when it comes to paid time off for those grieving the loss. In Ontario, there is no requirement for bereavement leave under the Employment Standards Act (ESA), but many businesses have established policies that give a certain number of paid days off as an employee benefit.
However, most policies limit the paid days to relatives (with a higher number of days for immediate family such as a spouse, parent or child). If an employee is requesting time off to recover from the loss of a work colleague, you might suggest they utilize accumulated sick days (if your company offers paid sick days) or a non-paid leave of absence. Be fair and consistent with absences granted for this purpose but also remember that certain circumstances may require you to make exceptions to established policy. Take the situation into consideration each time and it necessary reach out for advice on how to handle a particularly difficult situation.
Replacing an employee who has died
The potential need to replace the worker who has passed away brings with it a special need for sensitivity and respect for those who worked with the deceased. Depending on the circumstances and the nature of the position, your company may be able to delay this process for a while in consideration of the feelings of the person's colleagues. Should you need to delay the process for replacement, consider setting up an internal resource to cover the position in the meantime to ensure that business needs are met and people have someone to go to. If a delay is not possible, proceed with your regular recruitment practice while being as sensitive as possible with everyone involved.
When an employee suffers a personal loss
When an employee loses someone in their personal life, management should be equally as cognizant of the need to be sensitive to their needs at that time. HR should advise the individual of the company's policies regarding paid time off for bereavement, along with recommending the use of an EAP program (if applicable). As mentioned, there is no requirement to give paid time off under Ontario's ESA, but refusing to do so may be seen as a very unsympathetic response during a time of loss.
Encouraging your supervisors and co-workers to be patient with the individual in the period following the death is an important step. Relieving the person's workload on a temporary basis may also be an option for your company.
Need some assistance?
Have you established employee policies, such as one for Bereavement and Absence? If not, or if you would like some assistance updating your policy book, get in touch with Clear Path today. Certified HR professionals like Anna Aceto-Guerin can guide your company through the process and help you manage any people-related challenges you may have. Contact us today at firstname.lastname@example.org or by phone at (519) 624-0800.
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Ontario's Workplace Safety & Insurance Board (WSIB) has proposed a brand new system for funding our workers' compensation system that would change the way WSIB premiums are set and would eliminate the current process of giving surcharges and refunds.
This new system is said to come into effect by January 2019 and promises to be revenue neutral and the most significant change to the WSIB in decades. It would reduce the number of rate groups from over 200 to about 34 and eliminate the current NEER, CAD-7, and MAPP experience rating programs and replace them with one unified system. The updated reform proposal can be found here.
Here are some of the key points you need to know. (Remember that details are subject to change since the WSIB's consultation process is ongoing):
New ways to categorize employers:
Say goodbye to refunds and surcharges, say hello to 'risk bands':
(Possibly the) End of multiple rate groups for one company:
Exception for staffing agencies:
Expansion of experience window to 6 years:
What about the Fatal Claim Adjustment Policy or other punitive measures?
What about SIEF?
How will these changes be implemented?
Want to learn more?
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A job ad posted in a local newspaper for a position at a restaurant in Fergus, Ontario has ruffled quite a few feathers in the small town - and led to charges of discrimination in the restaurant's hiring practices.
Horizon's Family Restaurant posted an ad this week looking for a "reliable waitress." It also stated that you should "not apply with visible tattoos and face piercings." Since news of the ad broke, TV and radio stations have reported that many have taken issue with the ban and call it discriminatory. Others argue that a business should be able to put reasonable restrictions on the appearance of its employees.
We asked HR professional Michelle Strassburger to weigh in on the controversy:
"First of all, the fact that they have made the position gender specific when they advertised for a reliable waitress rather than serving person is clearly discriminatory."
"As for a ban on visible tattoos and piercings, it's not appropriate to include that in the job ad since it really couldn't be seen as a bona fide job requirement. Therefore, you'd find yourself justifiably accused of discrimination."
"A company can have a policy that establishes limitations on such things as visible tattoos and face piercings, even an acceptable size of earrings. But that policy should be communicated AFTER a job offer has been given, not in the job ad itself."
Want to get some additional insights into best practices when hiring employees? Clear Path's on demand webinar "Hiring Employees Effectively" is jam-packed with useful tips for business owners and managers. You can also get HRPA re-certification points.
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The new film Star Wars: The Force Awakens is shattering box office records around the world. In addition to being an exciting thrill ride, we noticed a number of intriguing HR lessons in the film that can be applied at every workplace. Come take the journey with us...
SPOILER ALERT: Significant spoilers ahead for those of you who have yet to see the movie.
Some background: The movie introduces a new generation of heroes into the Star Wars universe but continues the classic battle between the dark and the light sides of the Force, with a few twists. The story features a disgruntled storm trooper from the First Order (a resurrection of the old Empire bad guys) named Finn. He breaks away and begins an adventure with a young female scavenger named Rey, who is in possession of a droid that contains information the First Order desperately wants. Eventually, the two cross paths with "vintage" Star Wars characters including Han Solo, General Leia Organa, Chewbacca, C3-PO, and R2-D2 in search of a missing Luke Skywalker. Along the way, the unlikely team escapes the clutches of space pirates and destroys a Deathstar-type planet determined to destroy the Resistance.
So what can this movie teach us?
Lesson #1: Management style matters (conformity vs. collaboration)
The First Order, with its military Nazi-type style, demands conformity and obedience to the commands of its leaders, including Supreme Leader Snoke, General Hux, and the mysterious Kylo Ren. The underlying theme in both the old Empire and the new First Order is ruling through fear and oppression. They use force (not THE Force) to get underlings to implement their objectives. But the movie demonstrates that at least one of their members (Finn) does not work well under these conditions and ultimately betrays his superiors.
In contrast, the Resistance under General Leia definitely deploy a more collaborative and non-hierarchical approach to decision making - which proves to be much more successful in the end. The Resistance allow new characters to take active roles in planning their missions, are consistently open to new ideas and putting new “employees” on the front lines (no matter how potentially dangerous or questionable it may be).
Businesses need to understand the value that fresh voices can bring to decision-making and not always default to a "top down" management style. This increased employee engagement will not only reduce your turnover but also increase your productivity in your organization. If foster a fear-based culture that demands conformity if employees wish to keep their jobs, prepare to ultimately fail when facing competitors that allow creative thinking and new approaches. Of course, there are benefits to consistent protocols and procedures, but blind adherence to rules will not lead to innovative solutions to problems such as a rebel group that wants to blow up your planet.
Lesson 2: Learn from your mistakes
For fans who have seen Star Wars: A New Hope (1977), Return of the Jedi (1983), and now Star Wars: The Force Awakens (2015), you will notice a recurring storyline where the underdogs are able to defeat the giant by turning off protective shields and literally blowing up their worlds. The fact that a third Deathstar-like planet was destroyed (or even built in the first place) suggests that upper management in the First Order is not very self-aware and have not done their due diligence reviewing areas of vulnerability and managing those risk exposures.
Sometimes upper management can be so focused on following the original plan that is fails to adapt to the ever-changing environment around them. There are dozens of modern examples, including Blackberry, the taxi industry, Blockbuster Video, and more. When a business continues to struggle over and over, red flags should be raised within upper management that they are somehow failing to analyze their decisions effectively.
One could even argue that removing Star Wars creator George Lucas (who sold control of the franchise to Disney for a reported $4 billion) from the decision-making process for this new film was a result of Lucas' own record of focusing primarily on toy sales versus film quality in the Star Wars prequels. This is certainly not the first time that a founder was "put out to pasture" or removed from the business they created (think Apple's Steve Jobs).
Ultimately, make sure that your managers take a sober look at your company's strengths and vulnerabilities regularly, and take action to mitigate any risks you identify.
Lesson #3: Newer isn't always better
You shouldn't keep on doing the same thing over and over. But on the other hand, sometimes all an old idea needs is a fresh approach, one that maybe younger employees can bring! In the film, Rey and Finn tried to escape the desert planet of Jakku with an impressive ship, but had to use the old and battered Millennium Falcon after their first choice became "unavailable." Still, they were able to adapt and ultimately get where they needed to be with the old machine. It also helped them connect with vintage characters Han Solo and Chewbacca.
In today's society, there is often a desire for "out with the old, in with the new." That can apply to ways of doing business or even to team members themselves. Make sure that you don't disregard what has worked well in the past for your company. Don't toss processes or people aside for the newest trend or fresh blood. Take the time to increase the skill set of your existing team members and help the "old guard" take on new challenges
Lesson #4: Ensuring the right people are on the bus
To paraphrase author Jim Collins (Good to Great), you want to make sure that you have the right people on the bus (and that they are in the right seats!).
In the film, storm trooper Finn is horrified by what he is expected to do and traumatized by the violent actions of his colleagues. He ultimately abandons the group and helps a Resistance fighter to escape along with a valuable droid. His lack of "fit" for the organization was clear to bad guy Kylo Ren (even though his immediate superiors didn't seem to catch on until it was too late).
Effective managers regularly assess their team to determine if there are gaps in necessary skills and if existing employees are meeting the needs of the organization. Effective hiring techniques and performance management can help to ensure that all members are the right "fit" for where the company is going. Sometimes it is necessary to remove a person from your team, whether through termination or transfer to another area of the business that might be better suited for them.
Perhaps his supervisor Captain Phasma should have taken some managerial courses to help her decide to keep Finn in waste management, rather than front-line assault teams. She should also have considered the impact of the traumatic mental stress that the position was having on one of her reports. Some intervention and access to an EAP program may have turned things around for the employee. Maybe the First Order needs a better HR department.
Lesson #5: Power of diversity in the workforce
One thing that everyone loved about Star Wars: The Force Awakens is the increased amount of diversity among actors in the film, including gender, ethnicity, and age.
Going against the Hollywood trend of replacing all older actors with fresh young faces (especially white male ones), this film integrated new faces (including a young female protagonist and an African-American actor) along with the familiar faces of Han Solo, Luke Skywalker and Princess Leia, all who had aged many years since the last Star Wars movies.
Employers need to remember that diversity in the make-up of your team can be a real source of strength. Valuing the input of senior workers in addition to the younger folks in the office is a wise approach. Hiring people of different genders, ethnicities, and backgrounds should be standard in this day and age. Doing this in your company will empower you see all sides of the challenges you face and will increase employee loyalty in the company.
Lesson #6: Don't be afraid of technology (and those who know how to use it)
Not surprisingly, technology plays a big role in a science-fiction movie like Star Wars. Droids such as C3-PO, R2-D2, and the adorable new BB-8 are crucial to the success of the Resistance and "save the day" on more than one occasion. Those characters who value these droids, particularly members of the Resistance like Poe and Rey, seem to have more success.
Businesses are becoming less afraid of utilizing technology in their day-to-day business operations. But the comfort level of each employee with technology varies widely. Businesses should encourage the hiring of employees, notably Millennials and Generation Z, who have grown up with technology and see it as an integral part of every day life. Support efforts of employees to increase their tech skills and reward innovation. Technology may be the way of the future, but you still need a well-trained employee behind the wheel!
What other HR lessons did you learn from Star Wars: The Force Awakens? If you have any others, we'd love if you would share them in the Comments.
If you're having any HR challenges with your employees, contact Anna Aceto-Guerin of Clear Path today for a free 15-minute consultation.
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Here are a few suggestions on how to keep the busy Christmas holiday season a safe, productive, and enjoyable one at your workplace. If you have other tips, share them below.
Keep holiday vacation scheduling fair:
Some businesses close their doors for a company-wide break during the holidays. But if your company is open for business during the Christmas period, determining which employees are required to work can be a tricky process.
When ensuring you have adequate coverage for your customers, you should select employees to work during this period based on the needs of the business and be ready to objectively justify your selection of employees. Be sure not to target employees that do not have children or do not celebrate Christmas. Allowing employees to volunteer to work or setting up a rotating schedule are other strategies you may deploy to keep things fair.
Keep employees safe from violence
Risk factors that increase the likelihood of workplace violence (see our FAQ) include working during times of increased levels of stress and the presence of alcohol.
The frantic pace of the Christmas season, particularly for those dealing with the frenzied public, and the common practice of serving alcohol at holiday parties certainly increases these risks.
Ontario's Bill 168, an amendment to the Occupational Health & Safety Act, states that employers have an obligation to take explicit actions to reduce the risk of violence against their workers. This can include hiring additional staff for the holidays, having managers or security guards to ensure that interactions do not escalate, and finding ways to reduce stress for your employees. Concrete plans on how to curb excessive alcohol consumption during holiday parties is also important.
Bill 168 also makes employers liable if they fail to prevent domestic violence from impacting the workplace (which includes workplace events like a Christmas party). If you suspect domestic violence or know of a history of spousal violence, it might be necessary to prevent that individual from attending. Due to the delicate nature of this issue, we recommend getting legal advice before taking action.
Keep your party a positive experience
Keep it real with Secret Santa
Exchanging gifts or having a "Secret Santa" in the workplace can be seen as a bit of fun. But some staff members might take advantage of the anonymous nature of the exchange and give inappropriate or even offensive gifts to their colleagues.
Organizers of the gift exchange must ensure participants are aware that Secret Santa falls under your company's HR existing policies and that anyone selecting a gift that might cause offense or be construed as bullying or harassment will face consequences.
Keep "decking the halls" safe
Putting up Christmas decorations can be a fun and festive way to celebrate the season at your workplace. However, it doesn't make you a Scrooge to insist that employees take all the necessary safety precautions when putting up those decorations. The people assigned to do the decorating might not be familiar with the requirements of the Occupational Health and Safety Act (OHSA), so it's your job as the employer to enforce them.
Having someone injured or putting in a WSIB claim is not the way you want to start the holidays! Take precautions such as providing staff with suitable step ladders to put up decorations, making sure that Christmas trees are not blocking fire escape routes or exits, and checking any novelty lighting for defects.
Keep everyone productive
Have any questions about how to make your workplace a positive and safe environment? Don't hesitate to contact Anna Aceto-Guerin at (519) 624-0800 or by email at email@example.com.
Merry Christmas, Happy Hanukkah, and Season's Greetings everyone!
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Do any of your employees also work for another company? Things could get complicated if your worker is ever involved in a workplace accident.
The fact that many employees are working more than one job can present interesting challenges if that worker has a work-related accident with one employer but is losing time from both. It also brings up issues regarding the obligations an employer has to accommodate disabled workers under the WSIB regardless of if they are the "Accident Employer" or not.
Recently a Clear Path customer was impacted by this situation. They had a part-time worker who was injured while working for them, making them the Accident Employer. Unbeknownst to our client, this worker had concurrent employment with another company on a part-time basis.
While our client offered modified work and was accommodating the worker to try to save costs under WSIB, the concurrent employer was not. This resulted in loss of earnings (LOE) benefits being paid out to the worker by the WSIB and charged to our client (who, as the Accident Employer, became responsible for these additional costs even though it was as a result of the concurrent employer's actions.)
The WSIB has deemed that the Concurrent Employer in this case was excluded from the obligations under Policy 19-02-02 (Work Reintegration and Re-Employment).
In our recent submission to the Appeals Division at WSIB, we argued that a Schedule 1, Concurrent Employer should be party to the WSIB’s work reintegration responsibilities under Policy 19-02-02, as OPM Policies are governed by the WSIA.
To support our argument, we noted that the WSIB operates under a no-fault system, which provides that regardless of who may be responsible for an incident, employers are protected from other liability. We believe this should include protection from negligence on the part of Concurrent Employers. Since the Accident Employer is financially responsible for workplace injury claim costs, the current interpretation of Policy 19-02-02 and the exclusion of Concurrent Employers from these responsibilities not only places Accident Employers at a financial disadvantage. It also is in contravention of WSIB’s “no-fault” system.
Human Rights perspective:
One can also look at this situation in relation to Human Rights legislation. Under subsection 10(1) of the Code, a person who claims or receives benefits under the WSIA is deemed to have a disability for the purposes of the Code. Therefore according to the Code, if a person with a disability requires accommodation to perform the essential duties of a job, “the employer must provide accommodation unless to do so would cause the employer undue hardship.”
Interestingly, WSIB Policy 19-02-02 indicates the following in regards to accommodation:
“All employers have a duty to modify the work or the workplace to accommodate the needs of the worker to the extent of undue hardship. This duty arises through the:
Finally, the WSIB Policy 11-01-03 (Merits and Justice) states: "In situations where the application of a relevant policy would lead to an absurd or unfair result, a case manager may depart from said policy." Taking this into consideration we can only conclude that current interpretation of Policy 19-02-02 to exclude Concurrent Employers from Work Reintegration and Re-Employment obligations can only lead to a prejudicial outcome, placing Accident Employers in a disadvantaged position. If the Code has primacy over conflicting legislation and policy, then the WSIB - as an administrative body - has a responsibility and jurisdiction to review the policy in question and apply the Code to ensure compliance.
We argue that by removing this obligation from Concurrent Employers, it essentially provides an opportunity for them to ignore duties under both the WSIA and section 5 of the Human Rights Code, especially in situations when administrative bodies are not monitoring workplace parties for compliance. It also inadvertently allows workers the opportunity to both disregard their obligations and unfairly take advantage of the PLOE paid by the Accident Employer.
What is the result?
What was the outcome of this? You will have to wait and see – as we are awaiting the final decision from the Appeal Division of the WSIB.
What can we learn from this experience?
It is important to understand the full employment history and current situation for each of your employees. A quick review of the monthly cost statement also revealed the LOE were being paid while the worker was supposedly full accommodated at the injury employer.
Lastly, offering modified duties to cover the time lost at the Concurrent Employer is a strategy we have used in the past if appealing to the WSIB to hold the Concurrent Employer accountable doesn’t work.
Need help in situation like these or other difficult claims – we are only a phone call away. Contact Anna Aceto-Guerin today.
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There is one particular strategy which is often overlooked and undervalued by businesses when looking to reduce their WSIB claims costs. We're referring to the critical importance of completing an organization's own Incident Report/ Worker’s Statement, Supervisor’s Report of Injury and Witness Statements.
One of the ways to reduce claims costs recommended by Clear Path involves developing and actually using a “toolkit” that is ready in the event of a workplace injury. What is sometimes discounted as unimportant is the Worker’s Statement and other similar statements, which should be contained in an organization’s toolkit. What is often misunderstood is the value these forms play in not only the management of claims post initial entitlement, but also in the objection of a questionable claim.
The Value of The Worker’s Report
Part of successfully managing a claim is in the submission of a Form 7, which is the employer’s chance to paint an accurate picture of the workplace injury. Many companies complete the form from only one perspective – the employer’s. This can sometimes lead to an erroneous summary of the incident and often will result in a disadvantage to the employer. In our experience, especially when dealing with doubtful claims, an organization's own Incident Report from the worker's perspective can often come in handy when trying to convince an Eligibility Adjudicator of the claim’s merit.
Example: Clear Path managed to have a questionable claim denied after submitting the Worker’s Report of Injury along with a Form 7. The worker reported a workplace injury to his neck without providing concrete details or witnesses to the event. Upon completing the Worker’s Report of Injury (Form 6), the worker wrote that he believed the incident may have occurred because he “slept funny the previous night.” The Eligibility Adjudicator denied the claim stating she was unable to establish a workplace injury due to the Worker’s Report of Injury.
It is important to note that a worker often does not have an opportunity to complete WSIB’s Worker’s Report of Injury (Form 6) until weeks after the commencement of a claim. Eligibility Adjudicators will send a blank form to the worker by regular mail, which sometimes does not make its way back to WSIB. Eligibility Adjudicators also attempt to obtain incident details from workers by telephone, but again, this sometimes does not take place until days or weeks after the actual event. It is easy for details to be misconstrued or forgotten, resulting in a costly claim for an employer.
By having workers complete your own custom Incident Reports or Worker Statements, and submitting it along with a Form 7, Eligibility Adjudicators are provided with details the worker may easily deny or later change.
Witness Statements can serve the same useful purpose. As part of your investigation process after a workplace accident, it makes a lot of sense to question any workers who may have firsthand knowledge of the incident. If a worker claims that another employee witnessed the accident, that employee should be interviewed for details that either confirm or deny the claim and this information could be provided to WSIB.
The same can be said for Supervisor Reports. Since supervisors are usually the first person on scene, employers should train supervisors in their investigation processes and return to work program. This program should include the initial investigation of a workplace injury, including the information and forms that should be completed for WSIB reporting purposes.
Clear Path consultant Jennifer Wright-Tahiraj explains that the possession of more than one workplace party statement increases the likelihood of potential discrepancies. She further explains that discrepancies between statements can “assist an employer in proving a Worker Report to be false, and therefore convincing an Eligibility Adjudicator in the denial of a claim.”
Example: Jennifer Wright-Tahiraj shares an example of an appeal decision which was denied loss of earnings (LOE) due to the information provided in a Supervisor Statement. The worker claimed a gradual onset injury to his right thumb after being advised that he, along with 26 other employees, would be placed on temporary lay-off due to a lack of work. In their statement, the supervisor was able to confirm that the worker could not report specifics of the alleged injury and nor were there witnesses to the incident.
The ARO decision upheld the denial of LOE by stating there were inconsistencies in the Worker’s Report compared to details provided by the supervisor. Specially, the decision stated that “…there is no evidence that the modified duties requested by the worker to the Supervisor were due to a workplace injury. There is insufficient evidence to conclude that the right thumb injury arose out of and in the course of employment as there is no compatibility between the history of the right thumb injury and worker’s job duties.”
Bringing It All Together
Successful claims management begins with preparation.
Prepared organizations utilize a “toolkit” which contains the documents described above, along with procedures for workplace injury investigations. Part of this investigation should include obtaining details from all those involved, most importantly, the worker! Organizations should train their workforce in this process so that employees know what is expected of them when workplace injuries may occur.
Never underestimate the value of the worker’s voice.
WSIB policy is clear that when faced with a situation when each parties’ position weighs 50/50, the benefit of the doubt goes to the worker. In order to help tip the scales in the favour of the Employer, provide facts and evidence that support your concerns, such as information provided by the worker’s own hand!
Compare and point out discrepancies.
If you come across discrepancies between statements, do not be afraid to discuss them with an Eligibility Adjudicator, especially if a claim is questionable. An Eligibility Adjudicator’s role is to decide the merit of a claim and investigate yellow flags. Remember that a worker is not likely to come forth with such information that may deny their claim!
Have a question about WSIB claims management? Like some advice from someone with over 20 years of claims management experience? Why not book a free 15-minute consultation with Anna Aceto-Guerin? Book your appointment now!
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There is still time for employers to get compliant with their obligations under the AODA, but the January 1, 2016 deadline is coming up fast!
Worried about getting your company compliant with the AODA? Learn more about Clear Path's Do-It-Yourself Package.
The Accessibility for Ontarians with Disabilities Act (AODA) was passed in 2005 aiming to make the province fully accessible by 2025. The legislation is being phased in through various "standards" that each have unique deadlines based on the size of your business.
The first "standard" was the AODA Customer Service Standard (CSS), which entails 11 specific requirements for businesses to provide their goods and services in a way that is accessible. The deadline for compliance with all aspects of the CSStandard was 2012 or earlier. The deadline for submitting your compliance report to the government was Dec 31, 2013.
The next "standard" is called the Integrated Accessibility Standard Regulation (IASR), which combines three formerly stand-alone standards known as the AODA Employment Standard, the AODA Information & Communications Standard, and the AODA Transportation Standard.
It lays out numerous obligations for businesses and has distinct deadlines for various aspects within it -- as well as different deadlines for businesses with over 50 employees and those with under 50 employees. There are several elements due by Jan. 1, 2016.
Jan. 1, 2016 deadlines for private sector companies with 50 or more employees:
Jan. 1, 2016 deadlines for private sector companies with between 1-49 employees:
Additionally, the Accessibility Standard for the Design of Public Spaces, requires public sector (government) organizations to be compliant with numerous elements by Jan 1, 2016. Note that large private sector businesses must be compliant with these elements by 2017 and small private sector businesses by 2018 (although they are exempt from certain aspects).
If you have any questions about the AODA and would like to book a complimentary 15 minute consultation with Clear Path's Anna Aceto-Guerin, book your appointment now.
You may also be interested in our easy-to-use DIY AODA Compliance Package for the IASR as well as our DIY Package for the CSS if your company is not yet compliant.
We'd love to connect with you!
Clear Path Employer Services
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Cambridge, Ontario N1T 2B9
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