Our inquiries into this issue stemmed from a complaint we received from a worker representative about the suitability of modified duties for a worker who had suffered a serious hand injury while working in a job through a temporary employment agency (TEA). He complained that the worker was disadvantaged because the WSIB was unable to investigate and mediate a dispute about modified duties as it would in a claim involving a conventional employer.

In such cases, the TEA is the sole employer of record and is responsible for all the claim costs and return-to-work obligations. This means there is little incentive for a placement employer to participate in the return-to-work (RTW) process.

During our inquiries, a manager explained that once a TEA returns a worker to the roster they were on before the injury, the worker is usually considered to have returned to their prior work pattern and this means the TEA has met its RTW obligations. They noted that the placement employers want to fill roles quickly and the TEA wants to protect its relationship with its clients so it is often difficult to obtain details of job duties quickly when the jobs are offered.

As there was no room for informal resolution, we referred the worker to the appeal process. The decision was overturned on the basis that the worker had not returned to his pre-injury work pattern by being placed on the TEA’s roster because he had permanent restrictions that prevented him from accepting certain job offers.

As this issue has systemic implications and is likely to disproportionately affect marginalized workers, we revisited the issue and asked the RTW team if there were any takeaways from the decision. A director told us they were planning on providing more guidance and training to staff on how to deal with RTW issues involving TEAs.

With input from the WSIB’s Legal and Operational Policy teams, the RTW team developed new detailed training material and rolled it out to staff in early 2024. The director explained to the Commission that there will be far more emphasis on gathering information from the TEA up front, before a job is offered. RTW staff will require the TEA to provide details of which roster a worker is being placed on, the minimum physical demands and skillset required, as well the types of jobs that are offered. Once the worker has been placed on a roster, the RTW specialist will follow up later to confirm that the jobs offered were suitable.