Duty to re-employ (injured worker reinstatement)

The duty to re-employ is the Ontario rule that requires some employers to offer an injured worker their job back. A buyer meets it when an employee is off work with a work injury at closing. The WSIB’s Re-employment Obligations policy says whether the obligation attaches to a successor employer after a sale depends on whether it is the same legal entity as the original employer.

How section 41 works

Under section 41(1), the employer of a worker who has been unable to work as a result of an injury, and who had been employed continuously for at least one year on the date of the injury, shall offer to re-employ the worker in accordance with the section. Once the worker can perform the essential duties of the pre-injury job, section 41(4) requires an offer of that position or of comparable alternative employment. Section 41(2) excludes employers below a workforce size the Act sets and prescribed classes of employers, section 41(7) limits how long the obligation lasts, and section 41(8) sets separate rules for construction. If the employer re-employs the worker and ends the employment within six months, section 41(10) presumes the employer has not fulfilled its obligations, unless it shows the termination was not related to the injury.

What to ask

• Which employees are off work with an accepted injury claim.
• Whether the seller has made any re-employment offer, and when.
• Whether a collective agreement applies; section 41(15) addresses a conflict with one.
• Whether the deal buys the same legal entity, which the WSIB policy ties to successor obligations.

The employee on leave when a business is sold page covers the wider picture, and a WSIB clearance certificate covers the account side.