Employer’s duty to re-employ injured workers
2019, c.39, s.13
42.4(1)In this section and in section 42.6, “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.
42.4(2)An employer shall offer to re-employ a worker
(a)
who has been unable to work as a result of suffering an injury by accident in respect of which the worker was entitled to compensation under this Part,
(b)
who had been employed by the employer for at least 12 continuous months on the date of the injury by accident, and
(c)
who, in the opinion of the Commission, is medically able
(i)
to perform the essential duties of the worker’s pre-injury-by-accident employment, or
(ii)
to perform suitable work.
42.4(3)An employer shall accommodate the work, the workplace or both for a worker to the extent that the accommodation does not cause the employer undue hardship.
42.4(4)When a worker is medically able to perform the essential duties of the worker’s pre-injury-by-accident employment, the employer shall
(a)
offer to re-employ the worker in the position that the worker held on the date of the injury by accident, or
(b)
offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker’s employment on the date of the injury by accident.
42.4(5)When a worker is medically able to perform suitable work but is unable to perform the essential duties of the worker’s pre-injury-by-accident employment, the employer shall offer to provide the worker suitable work to the extent that the accommodation does not cause the employer undue hardship.
42.4(6)An employer is obligated under this section
(a)
for a period of one year after the date a worker was entitled to compensation under this Part, if the employer employed fewer than 20 workers at the beginning of that period, or
(b)
for a period of two years after the date a worker was entitled to compensation under this Part, if the employer employed 20 or more workers at the beginning of that period.
42.4(7)If an employer re-employs a worker in accordance with this section and then dismisses the worker, the employer is presumed not to have fulfilled the employer’s obligations under this section if the worker is dismissed
(a)
within six months after re-employment, if, at the time of re-employment, the worker is no longer receiving compensation under this Part, or
(b)
within six months after ceasing to receive compensation, if, at the time of re-employment, the worker is receiving compensation under this Part.
42.4(8)An employer may rebut the presumption in subsection (7) by showing that the dismissal was not related to the worker’s injury by accident.
42.4(9)If an employer satisfies the Commission that the employer’s decision was for a business reason made in good faith and that the decision was not affected by the worker being or having been unable to work as a result of suffering an injury by accident, nothing in this section prevents an employer from deciding to
(a)
refuse to offer to re-employ a worker,
(b)
refuse to continue to employ a worker,
(c)
dismiss, lay off or suspend a worker, or
(d)
alter the status of or transfer a worker.
42.4(10)If this section conflicts with a provision of a collective agreement that is binding on the employer and if the employer’s obligations under this section afford the worker greater re-employment terms than does the collective agreement, this section prevails.
2019, c.39, s.13; 2021, c.3, s.1