On September 1, 2008, Ontario Regulation 35/08 – Return to work and Re-employment in the Construction Industry, the newest regulation under the Workplace Safety and Insurance Act (WSIA) will come into force. This regulation replaces Ontario Regulation 259/92 which was in place under the former Workers’ Compensation Act and continued after the change to the WSIA in 1999. The new regulation applies to all workplace accidents after September 1, 2008. Ontario Regulation 259/92 will still apply to all accidents before September 1, 2008.

The new regulation applies to all employers engaged primarily in construction, regardless of the number of workers they employ, and workers who perform construction work. The new regulation clarifies the return to work and re-employment obligations for the construction sector and brings the requirements for return to work and re-employment more in line with those for nonconstruction employers. This includes requirements for return to work such as initial contact between the parties following a workplace injury, and ongoing throughout the period of the worker’s recovery, worker co-operation in identifying suitable work, and providing the WSIB with information regarding return to work. The regulation also sets out the requirement for employers to accommodate the work or the workplace to the point of undue hardship.

However, it also states that employers are not required to accommodate the workplace if they do not have control over the workplace.

Under the WSIA, employers are required to re-employ a worker following a workplace injury. Under the new regulation, the duration of this obligation remains the same as under O. Reg. 259/92. However, it includes a statement that the obligation to re-employ ends on the date that the worker declines an offer of re-employment by the employer in accordance with the regulation.

Where a worker is terminated following their re-employment after a workplace injury, the presumptions surrounding a breach of the re-employment obligation are the same as under the old regulation. Employers may rebut this presumption by showing that the worker’s termination was not related to the workplace injury.

Similar to the old regulation, O. Reg. 35/08 sets out the requirement for return to work at both unionized and non-union construction projects. It sets out clear requirements where workers are able to return to either their preaccident job, other construction work, or work outside of the construction industry. Employers should be mindful of these requirements and apply them according to their own workplace and the worker’s functional abilities. Failure to do so may result in increased claim costs and/or penalties for breach of the re-employment obligation.

For a copy of the new regulation, please visit http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_080035_e.htm