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:

• The new system will eliminate the current NEER, CAD-7, and MAPP experience ratings programs and replace them with one unified system.
• It will reduce the number of different rate groups (industry groups) from the current 200+ to about 34 and each employer will be placed into one group, based on its predominant business activity.
• No more "predicting" expected claim costs for a given year and then allocating a refund or additional surcharge if your actual results are different than what was expected.
• Now the WSIB will assign a range of premiums for the entire group, with your company falling into one of 40-80 distinct "risk bands" within that range, depending on your company's performance. Increases or decreases in claim costs will result in an increase or decrease in next year's premium (as you move up or down that "risk band" continuum).
• Expansion of the review window from 4 years to 6 years (with higher weight given to more recent results)

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:

• Reduce the frequency of workplace accidents by actively encouraging an environment of safety
• Provide modified duties immediately to any injured workers, thereby reducing the number of lost-time claims (make sure that your employee's doctor knows you have modified work options available that you will customize for their individual abilities and limitations)
• Gain enterprise-wide support for return-to-work options
• Object to any WSIB claims that you feel are not legitimate or may be non-occupational in nature (i.e. injured themselves outside of the workplace)
• Request SIEF cost relief when you suspect a pre-exisiting condition contributed to the injury (or is delaying recovery)

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.

​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:

1. An employee has had, or is anticipated to have, seven consecutive calendar days with no work or no insurable earnings from the employer.  This is called the seven-day-rule.
2. An employee’s salary falls below 60 percent of their regular weekly earnings because of illness, injury, quarantine, pregnancy, the need to care for a newborn child placed for the purposes of adoption, the need to provide care or support to a family member who is ill with a significant risk of death, or the need to for a parent to care for a critically ill child.

If an employer issues a hard-copy ROE, it must be issued within five calendar days of the first day of an interruption of earnings, or the day the employer becomes aware of an interruption of earnings. 

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.

​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

1. Early and Safe Return to Work practices will often save you from unnecessary lost time in claims. 
2. Employers should always offer written suitable modified work to employees.
3. If an injured worker has declined modified work, do not be afraid to discuss your concerns with WSIB. 
4. Finally, remember that “two weeks off” does not always translate to suggest that the worker is totally disabled and is therefore incapable of completing suitable modified work.

Next steps:
Are you experiencing RTW difficulties with an injured worker? Contact Clear Path's Anna Aceto-Guerin to book your free 15-minute consultation. 

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 anna@clearpathemployer.com or (519) 624-0800.

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:

• The nature of the work
• The experience and seniority of the worker
• Availability of replacements
• The time it takes to train a new employee to a satisfactory level

 
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 anna@clearpathemployer.com or toll free at (888) 336-0950 to get started.

​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

• No possession of alcohol or illicit drugs  on company property
• Prohibited use or selling of alcohol or illicit drugs on company property
• Outline designated smoking areas (applicable to both tobacco and e-cigarettes)
• Ensure that employees are using their scheduled breaks to smoke (applicable to both tobacco and e-cigarettes)
• Outline expectations surrounding proper clean-up of waste resulting from smoking
• Outline rules surrounding alcohol use at any company-related social function
• Include progressive disciplinary actions that will be taken should an employee violate any element of this policy
• Acknowledgement of legislation surrounding substance abuse

Source: HR Insider (www.hrinsider.ca)

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 anna@clearpathemployer.com or toll free at (888) 336-0950 to get started.

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?

• Witnessing a fatality or a horrific accident
• Witnessing or being the object of an armed robbery
• Witnessing or being the object of a hostage-taking
• Being the object of physical violence
• Being the object of death threats
• Being the object of threats of physical violence where the worker believes the threats are serious and harmful to self or others (e.g., bomb threats or confronted with a weapon)
• Being the object of harassment that includes physical violence or threats of physical violence (e.g., the escalation of verbal abuse into traumatic physical abuse)
• Being the object of harassment that includes being placed in a life-threatening or potentially life-threatening situation (e.g., tampering with safety equipment; causing the worker to do something dangerous).

 
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.

Questions?

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 anna@clearpathemployer.com or toll free at (888) 336-0950.

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:

• You believe that the injury is not compatible or consistent with the duties of the job
• You suspect that the injury is not work related (the result of activities off the job)
• You are concerned the claim is fraudulent

​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:

1. Is it a sincerely, freely and deeply held belief?
2. Is tied to personal identity and spiritual fulfillment?
3. Is it “a comprehensive and overarching system of belief that governs one’s conduct and practices?
4. Does it address ultimate question of human existence, including ones about life, death and purpose?
5. Is there an organization or community that practices the same belief system?

 
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? ​

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:

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:

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.

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:

• It can stimulate creativity
• It can relieve or reduce stress
• It can increase productivity
• It can be a retention tool
• It can improves employee morale, engagement, and teamwork

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:

• Fun doesn't belong in a "serious" workplace
• Customers may be turned off seeing your employees having too much fun
• Employees will take advantage of the time away from their regular duties

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:

• Organize fun events, like a monthly celebration of employee birthdays or a special costume day, with specific start and end times, rather than having several random activities happening sporadically
• Encourage employees to come up with ideas that resonate with them and involve them in the implementation
• Incorporate contests and incentives to make everyday tasks more enjoyable, such as a team pizza party for meeting a particular quota or achievement
• Photograph or take videos of special events so that you can share them on your social media sites (to demonstrate your corporate culture to prospective applicants) or create a photo album for team members to share

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:

• We view life as a journey to be enjoyed and appreciated.
• We create an atmosphere of fun and happiness so all around us enjoy it as well.
• We believe that what is fun gets done.
• We enjoy spending time with our teammates and customers.
• We celebrate and reward our successes.
• We value humour, but never at the expense of another.

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.

​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:

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.
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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 anna@clearpathemployer.com or by phone at (519) 624-0800.

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):
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New ways to categorize employers:

• Currently, companies are categorized with similar businesses into one of 200+ rate groups (mining firms grouped together, retail stores grouped together).
• The new system will streamline the process and categorize businesses into one of 34 rate classes based upon NAICS codes (that is up from the original 22 classes proposed in 2015 that was adjusted due to stakeholder feedback).

Say goodbye to refunds and surcharges, say hello to 'risk bands':

• The WSIB will move away from 'predicting' expected claim costs for each employer and then allocating a refund or additional surcharge each September based on actual costs.
• The new system will assign a premium rate based on the collective experience of all the employers in their rate class and where the particular employer falls on the 'risk band' or range of premium rates within that rate class.
• Increases or decrease in claim costs for that employer will result in an increase/decrease in the next year's premium rather than a surcharge/refund of that year's premium.
• The range of premium rates within each rate class will be quite extensive, with up to 40-80 different risk bands in each class.  Regarding increases/decreases in premium rates, no employer will be able to be moved up or down more than three risk bands per year (capping any increase/decrease to +/- 15% in any one year). This will help protect employers from catastrophic claim costs in one year.
• Maximum risk band is not to exceed 3x the average premium rate for the rate class.

(Possibly the) End of multiple rate groups for one company:

• Currently, companies with business activities that cross into more than one rate group (i.e. company has both manufacturing and trucking divisions) can assign individual employees to different rate groups (which may have different premium rates) and receive NEER reports for each rate groups.
• The new system will establish a 'general rule' that assigns each employer to a single rate class based upon the company's predominant business activity. This change will simplify the administration of claims but will most likely result in premium increases for an employer who currently has a portion of its workforce in lower-cost rate groups (assuming that their predominant business activity is in a high-cost rate class). 
• The WSIB has responded to concerns from employer groups saying that "it is interested in further exploring some exceptions to this general rule for separate classification and multiple rates for a single employer, if an employer engages in more than one business activity, and a business activity is not dependent on the other activity(ies)." It is still unclear, but there may be some wiggle room in this general rule.

Exception for staffing agencies:

• An important exception to this 'general rule"'of one rate class per employer will be created for staffing or temp agencies.
• The WSIB is proposing that staffing/temp agencies will have separate WSIB accounts for each industry or rate class they serve, rather than one rate class for the firm itself.

Expansion of experience window to 6 years:

• Employers will remember that the WSIB previously expanded the NEER window from 3 to 4 years in 2010.  The new system would further expand the experience window for the unified system to 6 years of review.
• Initially, the WSIB proposed that all claims within that window would be treated equally when determining premium rates. After consulting with stakeholders, that has been changed to a formula that gives higher (two-thirds) weight to claims within the most recent three years and lower weight (one-third) to those in the previous three years. This should help employers see changes in their premium rates if they have recently implemented changes to their health & safety practices. The image below depicts this weighted formula:

What about the Fatal Claim Adjustment Policy or other punitive measures?

• In 2008, the WSIB instituted the Fatal Claim Premium Adjustment policy, which essentially voided out any potential NEER refund on an employer who had a traumatic fatality claim in that year.
• The new system will not have refunds that could be voided, so the application of that policy as it now stands will not be feasible. However, the WSIB has proposed that such a company be assessed an amount consistent with the rolling five-year average of the cost of a claim to maintain the 'spirit' of that policy.
• The WSIB also says that it is open to a 'special surcharge"'for bad performers. When an employer has an accident history over several years that is consistently significantly worse than others in their rate class, they may be subject to an undetermined surcharge of some kind. 

What about SIEF?

• The WSIB's Secondary Injury Enhancement Fund (SIEF) provides employers with a discount on claim costs if it is determined that an employee's injury is caused or prolonged due to a pre-existing condition. It does not impact whether benefits are provided to the injured worker, it only provides cost relief to the employer.
• The outcry from stakeholders at the potential removal of the SIEF program has resulted in the WSIB's acknowledgement that some form of cost relief measure is necessary. The SIEF cost relief program will be kept as an interim measure until there is a better cost relief structure for employers to mitigate costs.

How will these changes be implemented?

• The WSIB plans to seek approval for the new framework proposal from its Board of Directors in late 2016. Implementation is planned for no earlier than January 1, 2019.
• The WSIB has committed to publishing a written policy framework one year prior to the implementation of the new system.  In the interim, it will prepare a transitional plan to support stakeholders through the implementation process. Exact details of how the transition will unfold are still unclear.
• Additional stakeholder discussions are occurring in 2016-2017. 
• Stakeholders have their opportunity to share further thoughts on the updated framework until March 2016. This can be done by providing a written response to the Consultation Secretariat (consultation_secretariat@wsib.on.ca). 

Want to learn more?

• Read more about the Updated Rate Framework here
• Seek additional information from active participants in the consultation process, including the ​Office of the Employer Advisor (OEA)
• Contact Clear Path President, Anna Aceto-Guerin or register for one of our upcoming Introduction to the WSIB and NEER Workshops, that will include an overview of proposed changes.

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.

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 #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!).
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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.

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.

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.

 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. 

Client example:

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:

• Obligation to re-employ set out in the Workplace Safety and Insurance Act, 1997 and/or
• The Ontario Human Rights Code or the Canadian Human Rights Act."

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.

​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. 
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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. 

Other Forms

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!

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.

Some background:
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:

• Employment: Create accommodation plans for employees with disabilities
• Employment: Tell staff about policies for supporting employees with disabilities
• Employment: Make your recruitment and hiring processes accessible
• Employment: Accommodation for employees with disabilities during the performance management process, career development planning, and job changes or redeployment
• Info/Comm: Make information about your goods & services accessible to the public
• Info/Comm: Create accessible formats and communication supports

Jan. 1, 2016 deadlines for private sector companies with between 1-49 employees:

• General Reqs: Train all employees and volunteers on IASR (including Human Rights legislation)
• Employment: Employee return-to-work policies that consider persons with disabilities
• Info/Comm: Create an accessible feedback process for customer

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).

Next Steps:

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.