Obligation to reinstate employment

Review the claim to determine if obligation to reinstate (OTR) applies. The review may be triggered when:

• Circumstances arise that indicate the employer may not have met their OTR (such as not offering suitable modified temporary or permanent work or terminating the worker’s employment).
• The employer claims undue hardship (for more details see Step 2).
• WCB receives information that:
  • The employer is not meeting their OTR.
  • The worker is not cooperating (such as refusing suitable modified temporary or permanent work).
  • The worker is no longer job-attached with the date-of-accident employer.
  • The employer may be OTR exempt.

Determine if OTR is applicable. (See Responsibilities of Employers and Workers in Return to Work Policy). 

If the employer:

• Is exempt, complete the Obligation to Reinstate eCO screen and end this procedure.
• Has an obligation to reinstate the worker, document the results of the review and continue this procedure.

Note: If the worker has refused suitable temporary or permanent work at any point throughout the claim, OTR ends.

Call the employer to discuss the claim information and request details required to make a decision. This conversation is an opportunity to educate the employer about their responsibilities under the Responsibilities of Employers and Workers in Return to Work Policy, and questions should be encouraged.

Employers may be unfamiliar with the obligation to reinstate (OTR) legislation. It is important to discuss OTR at the earliest opportunity, so the employer is informed and better positioned to cooperate with the return-to-work plan. Explain that:

• They are expected to maintain the worker’s employment.
• If the worker’s employment is terminated within six months of returning to full duties WCB-Alberta will presume that OTR has not been met and penalties may apply.
• If the worker’s employment is terminated at any time after returning to full duties the employer must provide evidence that the termination was not related to the injury or claim.

If the employer does not respond to the letter within one week, request assistance from the industry specialist. They will attempt to reach the employer to provide education regarding the obligation to reinstate legislation.

Note: For seasonal workers a decision may not be possible until the start of the next season. In this case the claim should be monitored until the new season has started and the employer has an opportunity to return the worker to employment.

Undue Hardship

If the employer is claiming undue hardshipSee Policy 04-05, Part II, Application 3 for more details.:

• Find out why they think providing accommodation would cause undue hardship.
• Ask the employer to provide evidence of the undue hardship and submit the appropriate form.
• Explain that:
  • A WCB-Alberta industry specialist may contact them to provide education about returning the worker to employment.
  • A penalty may be applied if the employer fails to meet OTR or qualify for undue hardship.
  • A decision about undue hardship will be made once all information is received and reviewed by WCB Alberta.

Termination

If the employer is claiming undue hardship:

• Help the employer to understand that the OTR does not end when they terminate the worker unless they can provide evidence that the termination was for valid business reasons unrelated to the worker’s injury or claim.
• Find out why the worker’s employment was terminated (be as detailed as possible) and confirm the date of termination.
• Request evidence from the employer (within one week of the discussion) supporting the termination (for example, employment policy, confirmation that the worker was aware of the policy, information to support that the policy has been applied consistently in the past, performance management reports, a summary of attendance with doctor's notes, a police report for a crime committed, etc.).
• Ask if the employer is willing to reinstate the worker:
  • If yes, negotiate or arrange, as appropriate: modified work, permanent work or a return-to-work planning meeting/discussion or other services.
    Note: When modified work is offered after a termination, OTR would be considered met, even when the worker declines the offer.
  • If no, discuss the employer’s OTR, the criteria for determining undue hardship and inform them that a penalty could be applied.

If it is determined that the employer is exempt from OTR, complete the OTR screen and end this procedure.

Call the worker to discuss the claim information and request details required to make a decision. This conversation is an opportunity to explore the claim from the worker’s perspective and educate them about their cooperation in their return-to-work plan; questions should be encouraged.

Explore the worker’s job attachment and their understanding of the termination:

• How long have they worked for the employer?
• What is their understanding of why their employment was terminated?
• Do they know if another worker’s employment has been terminated in a similar way?
• Does the employer have a policy relevant to the termination?
• Has the worker been written up prior to the injury for not following any company policy?
• What reason for termination is provided on their record of employment (ROE)?
• Do they have copies of any documents? (For example, performance management reports, text messages etc.)

If they declined suitable modified temporary or permanent work and/or permanent employment:

• Find out why.
• Explain that their employer's obligation to provide them with employment may end if they choose not to cooperate in their return-to-work plan.
• Explain any impact that may apply to their benefits if they choose not to cooperate.
• Tell the worker if the employer is willing to reinstate them in modified temporary or permanent work, if applicable.

If they left employment for reasons unrelated to the claim (for example, they moved because their spouse found a new job) advise them that their employer's obligation to provide employment may end.

If the employer can provide suitable modified work for the duration of the worker’s restrictions, ask the employer to:

• Submit a job description including job duties, physical and mental health requirements or demands, etc.
• Indicate when the modified/permanent job will be available.
• End this procedure and monitor the modified work.

If the employer cannot provide suitable modified temporary or permanent work and the worker is not yet job ready, explore potential return to work services such as:

• Return-to-work meeting or discussion
• Ergonomic assessment
• Adaptive equipment
• Physical suitability analysis (PSA).

If the employer is unable to provide accommodation, refer the claim to the industry specialist.

Note: An industry specialist can educate the employer in their legislated obligations and help them work through any challenges they face to successfully negotiate modified temporary or permanent employment. The industry specialist will also gather the information required to make a recommendation of for undue hardship, if applicable.

When a modified work, permanent accommodation or undue hardship recommendation is received from the industry specialist:

1. Review the recommendation and contact the industry specialist if clarification is required.
2. Call the employer to discuss the recommendation. If the employer:
   • Provides the recommended modified temporary or permanent work, continue to negotiate modified work. Ask that they submit a job description including job duties, physical and mental health requirements or demands, and start date. Consider a Case Conference or other services to facilitate the return-to-work plan.
   • Is unable to accommodate and the worker is fit for work (or will be in eight to ten weeks) consider referring the worker for re-employment services.
   • Was claiming undue hardship, discuss the industry specialist’s recommendation with them.

Review the claim and any new information to determine if there is enough detail to make a decision.

If it is determined that the employer has met OTR or the criteria for undue hardship, document the decision and go to the next step.

If it appears that the employer has not met OTR or the criteria for undue hardship, or there is uncertainty, add a file note and refer the claim to Claims Audit.

In this case, continue managing the claim and any additional services and benefits required until the Claims Audit investigation is complete. Do not close the claim, even if additional services and benefits are not required.

Call the employer and worker and advise them of the decision. Inform the worker of any benefits or services to which they are entitled, including a referral to re-employment services, if appropriate.

Send the appropriate letter to the employer and worker documenting the decision.

If the employer or worker disagrees with the decision:

• Inform them of the Request for Review process.
• If a request for review is received, the resolution specialist will notify the Alberta Humans Rights Commission or the Canadian Human Rights CommissionSee Policy 04-05, Part II, Application 3 for more details. for federally legislated claims.

Notes:

• If the claim has been referred to Claims Audit, Claims Audit will inform the worker and employer of their decision and manage any request for review of their decision.
• If applicable, Claims Audit will discuss relevant financial penalties with the employer; workers are not entitled to the details of such penalties.

Continue to manage the claim as appropriate.