Policy
Early and safe return to work is recognized as being therapeutic for the worker and is an integral part of their rehabilitation. The Workers’ Compensation Act (WC Act) provides the framework for the early and safe return to work process, placing the obligation on the employer, with the cooperation of the worker. The WC Act also provides an opportunity for WorkSafeNB to partner with workplaces, being a resource and assisting workers, employers, unions, medical practitioners in working cooperatively throughout the process.
The specific legislated obligations of employers are:
- To contact the worker and WorkSafeNB soon as the circumstances permit after the injury by accident occurs;
- To offer the worker suitable work, including any necessary accommodations;
- To maintain communication throughout the period of the worker’s recovery and impairment;
- To cooperate with any WorkSafeNB-sanctioned program for returning to work;
- To give WorkSafeNB any information requested concerning the worker’s return to work; and
- To not discriminate against a worker because the worker suffered an injury by accident.
The specific legislated obligations of workers are:
- To contact the employer and WorkSafeNB as soon as the circumstances permit after the injury by accident occurs;
- To cooperate with the employer when the employer is attempting to provide suitable work;
- To maintain communication throughout the period of recovery and impairment;
- To cooperate with any WorkSafeNB-sanctioned program for returning to work; and
- To give WorkSafeNB any information requested concerning the worker’s return to work.
Re-employment
For most workers, early and safe return to work occurs immediately, enabling the worker to stay at work. For other workers, early and safe return to work may require an accommodation such as modified duties, progressing to their pre-injury job. Recovery while at work forms an invaluable part of treatment.
For those workers who were unable to stay at work, the focus is to have all parties work together in returning the worker to employment. For the employer, it is their legislated obligation to re-employ if:
- The employee has been employed with them for at least 12 continuous months on the date of the injury; and
- The worker is medically able to return to pre-accident employment or suitable work
The re-employment obligation applies for one year, from the date the worker is entitled to compensation, for employers who regularly employ fewer than twenty workers; or two years, from the date the worker is entitled to compensation, for employers who regularly employ twenty or more workers. To facilitate re-employment, the employer must accommodate the work, the workplace or both for a worker to the extent that the accommodation does not cause the employer undue hardship.
When a worker is medically able to perform the essential duties of the worker’s pre-injury job, the employer must offer to re-employ the worker in their pre-injury job, or provide alternative employment of a nature and earnings comparable to the pre-injury employment.
Enforcement
If either or both workplace parties refuse to fulfil their legislated return to work obligations, WorkSafeNB may levy a penalty on the employer and/or diminish or suspend a worker’s benefit.
The non-discrimination provision under the WC Act is enforced by the Employment Standards Branch of the Government of New Brunswick. Human rights legislation also provides protection from discrimination, as well as an employer’s duty to accommodate workers who are disabled. Where there is a complaint, WorkSafeNB will work cooperatively with the appropriate organization to ensure all information needed to investigate is provided in a timely manner.
Interpretation
- For a worker to successfully return to work, it is necessary that parties communicate regularly and clearly on issues affecting return to work activities. Communication is between WorkSafeNB and workers, accident employers, unions, medical practitioners, and others.
- WorkSafeNB provides resources and assistance to both the worker and employer during the worker’s recovery and return to work. WorkSafeNB monitors the worker’s progress throughout the claim, co-ordinating any required health care and rehabilitation services.
- Suitable work takes into consideration the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or coworkers. It may be an existing position or modified to adapt to the worker’s restrictions. See Policy 21-417 Suitable Work and Suitable Occupation.
- While return to work is a collaborative process, it is the responsibility of the accident employer to provide suitable work, including any accommodations, to the point of undue hardship. These accommodations could include job site modifications, equipment (such as a sit-stand desk, chair, etc.), and tools necessary to allow the worker to safely perform the employment.
- Any job site equipment purchased by the employer as part of its re-employment obligations is the property of the employer.
- In cases of undue hardship, or when WorkSafeNB otherwise purchases job site equipment, the equipment forms part of the benefits provided to the worker. When the worker leaves their employment, the job site equipment purchased by WorkSafeNB becomes the property of the worker.
- Disputes about the suitability of work are not considered non-cooperation; however, the employer and the worker need to notify WorkSafeNB so that steps can be taken to resolve the dispute.
- WorkSafeNB expects unions to assist the employer, worker and WorkSafeNB by supporting re-employment or accommodation offers. In identifying suitable work, if the re-employment obligations under WC Act are stronger than those under a binding collective agreement, it is the re-employment obligations under the WC Act that must be met.
Enforcement
- On the request of the employer or the worker or on its own initiative, WorkSafeNB will investigate and determine whether the employer has met their obligations. WorkSafeNB reviews the facts and if WorkSafeNB concludes that an employer has not met their obligations, WorkSafeNB:
- Informs accident employers verbally and in writing of their legislative obligation under the WC Act; and
- Gives accident employers a reasonable period to comply with the legislated obligation.
If the accident employer does not comply within the stated timeframe, WorkSafeNB may apply an administrative penalty in an amount up to the worker’s average net earnings for the 12-month period immediately before the injury by accident.
- For the purposes of determining whether there is a re-employment obligation, WorkSafeNB will consider employment to be of 12 continuous months if the employment was not interrupted by a work cessation where either the worker or employer intended to sever the employment relationship. Thus, continuous employment may include seasonal workers who are subject to temporary layoffs that are not intended to end the employment relationship. In general, the following types of work cessation do not break the employment relationship:
- Strikes and lockouts;
- Sabbaticals, sick leaves, maternity and parental leaves, employer-approved leaves of absence, and vacations;
- Work-related injuries resulting in time off work;
- Lay offs with a mutual agreement that the worker will return to work for the employer; and
- Instances when the employer continued to pay the worker.
- The employer is presumed not to have fulfilled their re-employment obligations if the employer re-employs the worker and worker is dismissed:
- Within six months of re-employment if, at the time of re-employment, the worker was no longer receiving compensation; or
- Within six months of the worker ceasing to receive compensation when the worker was receiving compensation at the time of re-employment.
The employer may rebut this presumption if they can demonstrate the dismissal was not related to the worker’s injury.
- If employers believe that providing accommodations will result in undue hardship, the onus of proof is the responsibility of the employer. WorkSafeNB will evaluate these claims, on a case-by-case basis, considering several factors including:
- Employer size;
- Interchangeability of workforce and facilities;
- Financial costs;
- Health and safety concerns;
- Disruption of operations; and
- Impact on other protected rights.
- WorkSafeNB will diminish or suspend payment of compensation when evidence shows that the worker is not cooperating in aspects of their return to work as required by legislation, including not accepting suitable work.
Previous versions
- Policy 21-413 Return to Work – Responsibilities and Re-employment Obligations, release 5, effective January 11, 2022
- Policy 21-413 Return to Work – Responsibilities and Employment Obligations, release 4, effective January 1, 2020
- Return to Work – Responsibilities and Re-employment Obligations, release 3, effective May 12, 2015
Authority
Workers’ Compensation Act
34(2)(h.1), 41.1(2), 42.3, 42.4, 42.5, 42.6, 43, 82.1
New Brunswick Human Rights Act
4, 17, 25, 27
Canadian Human Rights Act
Part I, III
Disability – an alteration in an individual’s capacity to meet functional or occupational demands of pre-accident or alternate employment.
Discrimination – any practice or standard that, intentionally or not, has the effect of limiting the opportunities available to certain individuals or groups because of shared personal characteristics such as a physical disability, in a way that perpetuates the view that they are less capable, or are less worthy of recognition or value. (Adapted from NB Human Rights Commission).
Early and safe return to work – the re-employment process that is implemented concurrent to active medical treatment to facilitate stay at work (when possible) and return to work with the accident employer.
Medical Practitioner – means a person duly registered under the laws of the Province as authorized to practice medicine in the Province and includes a medical officer of Her Majesty’s armed forces serving in the Province. (Workers’ Compensation Act)
Return to work – the act of re-introducing workers to safe and productive employment that eliminates or minimizes wage loss, as soon as medically possible.
Suitable Work – means appropriate work that a worker who suffered an injury by accident is capable of doing, considering the worker’s functional abilities and employment qualifications and that does not endanger the health, safety or well-being of the worker. (Workers’ Compensation Act)
Workplace parties – for the purpose of this policy, workplace parties means the worker and accident employer.