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WCB Procedures

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Obligation to reinstate employment

Procedure summary

Published On

May 30, 2023
Purpose

To ensure that injured workers are successfully reinstated to employment after their recovery.

Description

The Obligation to Reinstate Employment (OTR) Legislation applies to claims with dates of accident from September 1, 2018, to March 31, 2021, inclusive.

The intent of this procedure is to work with the injured worker and date-of-accident employer to ensure the worker’s successful return to work (RTW) whenever possible. The employer's obligation to reinstate does not affect how the WCB-Alberta decision maker manages the worker’s claim. Suitable modified temporary or permanent employment continues to be negotiated throughout the management of the claim, with re employment services and benefits provided when there are compensable work restrictions.

To manage an OTR claim the WCB decision maker attempts to negotiate suitable modified temporary or permanent employment and gathers information related to the termination of a worker’s employment. A WCB industry specialist may be engaged to assist with the negotiation if appropriate; the industry specialist will also assist if the employer claims undue hardship.

If the decision maker is unable to determine whether an employer has met their OTR, the claim is referred to the WCB Claims Audit department, whose representative may contact the employer and worker to confirm details or obtain additional records. If OTR is met, Claims Audit documents the decision and notifies the employer. If OTR is not met, Claims Audit reviews the file to determine whether a penalty is appropriate and notifies the decision maker and employer.

Key information

Both workers and employers have responsibilities in ensuring the worker’s successful return to work (RTW).

Worker responsibilities include:

  • Communicating with the WCB-Alberta decision maker as needed
  • Providing information about their claim, recovery and interactions with the employer when requested by the decision maker
  • Identifying and considering all reasonable offers of accommodation, modified work or alternate employment, as applicable
  • Cooperating with their RTW plan and generally acting in good faith.

Employer responsibilities include:

  • Communicating with the WCB-Alberta decision maker as needed
  • Providing suitable modified temporary or permanent employment when the worker is unable to perform the essential duties of their pre-accident employment but is fit for alternate work
  • Reinstating the worker to their pre-accident employment when the worker is medically and physically capable of performing the essential duties of the job
  • Cooperating with the worker’s RTW plan and generally acting in good faith.

If either party does not meet their responsibilities, financial penalties may be applied to the employer, or worker benefits may be affected.

The employer may fail to meet their OTR in one of two ways:

  • The worker’s employment is terminated because of the workplace injury or claim, or
  • The worker is not provided suitable accommodation in either temporary or permanent work, and undue hardship does not apply.

Undue hardship

An employer must make considerable effort to find suitable modified temporary or permanent employment for a worker. Undue hardship occurs only when accommodations would create onerous conditions for the employer (such as intolerable financial costs or serious disruption to the business; see Policy 04-05, Part II, Application 3 [PDF] for more details). Some hardship may be necessary in making an accommodation.

Suitable modified temporary or permanent employment

For details on what is considered suitable work to meet OTR, see Policy 04-05, Part II, Application 2, Question 14 [PDF].

Additional resources are available for this procedure in the internal Procedure Resource Library.

Detailed business procedure

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1. Review the claim to determine if obligation to reinstate (OTR) applies

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 [PDF]). 

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.

Administrative tasks

Update the eCO Obligation to Reinstate screen with the outcome of the review and save as draft only. Do not complete the screen as this results in the generation of a task. Refer to the OTR help page for guidance as needed.

Update the Obligation to Reinstate screen with the outcome of the review.

  • When the employer is exempt, select complete.
  • In all other scenarios, save the update as draft; do not select complete.
2. Call the employer to discuss the claim

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 [PDF], 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.

Administrative tasks

Add a file note (Modified Work/Employer Contact) documenting the conversation. If the employer cannot be reached, send the OTR – Unable to Contact/Warning (IN073D) letter requesting the employer contact WCB.

To refer to an industry specialist complete the Industry Specialist Referral (FM555J) form on the eCO Create Referral screen.

Send the OTR – Employer Claim Undue Hardship (IN073A) letter along with the Employer Claim Undue Hardship form (C1328 or FM073A).

Update the eCO Obligation to Reinstate screen with the exempt decision and select complete. Refer to the OTR help page for guidance as needed.

3. Call the worker to discuss the claim

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.

Administrative tasks

Add a file note (Modified Work/Worker Contact) documenting the conversation.

4. Explore return-to-work possibilities and services

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.

Administrative tasks

Add a file note (Modified Work/Employer Contact) documenting the conversation.

Update the first two questions of the eCO Obligation to Reinstate screen and the save the screen in draft only before referring the claim to an industry specialist. Do not complete the screen as this results in the generation of a task. Refer to the OTR help page for guidance as needed.

To refer to an industry specialist complete the Industry Specialist Referral (FM555J) form on the eCO Create Referral screen.

5. Review and action the industry specialist recommendation

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.

Administrative tasks

Follow the 7-1 Triage assessment referral procedure to refer the worker for re-employment services.

6. Decide whether the employer has met OTR

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.

Administrative tasks

If OTR has been met:

  • Add a file note (OTR/Entitlement Decision) documenting the decision that OTR has been met.
  • Update the eCO Obligation to Reinstate screen and select complete.

The file note template is available in the internal Procedure Resource Library.  

If the criteria for OTR or undue hardship has not been met (or for assistance making that determination):

  • Add a file note (OTR/Details) and send it to the Claims Audit, Team Desk. Include:
    • The purpose of the referral.
    • Contact information for the worker and employer, date of hire and date of termination.
    • The reason(s) the employer provided for the worker’s termination and/or undue hardship and the supporting document (s) submitted.
    • The document(s) the worker has provided regarding their termination.
  • Update the eCO Obligation to Reinstate screen and save as a draft. The claims auditor completes the screen once their decision has been made.
7. Inform the employer and worker of the decision

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.

Administrative tasks

Add a file note (OTR/Entitlement Decision) documenting the conversation.

Send the appropriate letter from the IN073 series.

OTR Human Rights Notify (GE073A)

For all OTR not met decisions, Claims Audit updates the eCO Obligation to Reinstate screen with their decision and obtains approval from the appropriate Customer Service director.

Send the appropriate fit-for-work letter from the CL041 series.

Follow the appropriate procedure:

  • Triage assessment referral
  • Medical testing, referral and program support
  • Community Treatments

Supporting references

Policies

  • Policy 04-05, Part II, Application 2, Responsibilities of Employers and Workers in Return to Work (Question 3) [PDF]
  • Policy 04-05, Part II, Application 3, Accommodation and Undue Hardship [PDF]
  • Policy 04-05, Part I - Return-to-Work Services [PDF]

Procedures

  • 3-1 Modified work
  • 4-2 Community treatments
  • 7-1 Triage assessment referral
  • 3-4 Egregious conduct

Workers’ Compensation Act

Applicable sections

  • Section 88.1 – Unauthorized deductions (Workers' Compensation Act, RSA 1980)

General Regulation

Applicable sections

Related Legislation

Applicable sections


Procedure history

November 29, 2022 - May 29, 2023
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