A change in workers' compensation responsibility for Ontario temp workers

Changes to WSIA will make client employers responsible for injuries to temporary employment agency workers
By David Marchione
|employmentlawtoday.com|Last Updated: 06/14/2018
The Ontario Legislature at Queen's Park in Toronto. REUTERS/Mark Blinch

On April 6, 2018, the Bill 18 amendments to Ontario's Workplace Safety and Insurance Act (WSIA) came into force, moving the province's Workplace Safety and Insurance Board (WSIB) one step closer to being able to hold client employers financially responsible for insurance premiums and accident costs associated with workplace injuries to temporary employment agency workers that were assigned to them.

The amendments to the WSIA are part of the Stronger Workplace for a Strong Economy Act which came into force in 2014. Those amendments added s. 83(4) to the WSIA and gave the Lieutenant Governor in Council the authority to make regulations requiring the WSIB to attribute accident costs from workplace injuries to temporary employment agency workers to the client employer — in other words, the employer they were assigned to at the time of an injury. The regulations will also have implications for filing of the Employer's Report of Injury (Form 7) and the costs of the injured individual's year-to-date payroll. Any regulations to be introduced under the new section will set out the specific circumstances of when this type of situation would apply.        

Under the current system, when a worker employed by a temporary employment agency is injured, responsibility for WSIB injury reporting and claim costs for those injuries are attributed to the temporary employment agency. Hiring workers from temporary employment agencies has often served as a way for employers to manage costs and liability. The Bill 18 amendments to the WSIA looked to change that with a view to incentivising client employers to protect worker health and safety by making them financially responsible for workplace injuries to those workers, even though they are not direct "employees." The financial liability is in addition to the legal liability for worker health and safety that exists under the Occupational Health and Safety Act.

The changes to the WSIA are part of the province's efforts to increase workplace protections for temporary employment agency employees through multiple legislative amendments, including those under Bill 148 that came into effect earlier this year. These changes to the WSIA will only apply to Schedule 1 employers who participate in one of the WSIB's experience rating programs. The changes will not apply to self-insured Schedule 2 employers.

It is expected that any proposed regulation will undergo a consultation period before it is implemented.

David Marchione is an occupational health and safety consultant and paralegal with Fasken Martineau DuMoulin LLP in Toronto. He can be reached at (416) 868-3463 or dmarchione@fasken.com.

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