'You should have a collaborative relationship between the employer and the employee'
When an employee is injured and unable to work, it can put the employer in a tough position. On the one hand, the employer needs to continue operating after losing a contributor to the business, while on the other hand, it has legal obligations to which it must live up – such as the duty to accommodate or holding the position for the employee when they’re able to return to work.
“Most of the employers that we see are good people operating good businesses, and so they also feel a moral obligation to injured employees,” says Warren WhiteKnight, a partner at Bergeron Clifford in Kingston, Ont. “There’s a tension between the need to keep operating the business after losing a valued person, while pushing them along in a respectful way to get back to work if and when they're able.”
Where the employee gets hurt plays a big role in how the employer can manage the situation. If the injury occurs at work while the employee is performing their job duties, then it falls under the jurisdiction of the provincial workers’ compensation scheme – such as the Workplace Safety and Insurance Board (WSIB) in Ontario, for example.
One of the challenges for employers in managing workplace injuries is that workers’ compensation is a government institution - a creature of statute, WhiteKnight calls it - meaning that it doesn't exist as a business because it was made by government through legislation. Most employers are required to have workers’ compensation coverage and pay into it, but the government manages the program.
“Employers have some duties to participate, such as facilitating discussions and helping with returns to work and things like that, but largely they don't have much control over the process because it's something dealt with by WSIB, which has its own case workers and its own framework for functioning,” says WhiteKnight.
No workers’ compensation for outside injuries
However, if an employee is injured or falls ill outside of work when not “in the course of employment,” workers’ compensation doesn’t get involved. For such circumstances, employers on their own accord can obtain disability coverage – particularly long-term disability (LTD) coverage for extensive injuries that can keep employees off work for a substantial period of time.
“The two systems are quite different in being that to get [workers’ compensation] entitlement, the injury has to have arisen as a result of or during the course of employment, whereas for LTD some sort of health issue arises that prevents someone from engaging in their employment,” says WhiteKnight.
To have LTD coverage for their workforces and help employees who are injured outside of work, employers have to negotiate with private insurers to provide LTD benefits that would be paid for by the employer, the employees, or a combination of the two. And while workers’ compensation is managed by the government body, the employer and the insurer oversee LTD benefits.
“At some point, there’s some free-market negotiations for what the LTD policy looks like, what it costs, and how to make it happen,” he says. “You have these two arm's-length business parties negotiating a contract, the beneficiary of which is the employee, and that's a very different situation than workers’ compensation - and because of that, every LTD policy is different because it’s part of a contract.”
“Different policies cost different amounts because they cover different things - some of them cover 100 per cent of income loss when you're off work, some of them only cover 55 per cent, or anything in-between, while some of them have different stipulations in the time period that you're covered,” adds WhiteKnight.
“Whereas workers’ compensation is what it is, there's one version of it, and everybody who's covered by it has the same terms under the statute and there are no different versions of it for different workplaces.”
Adversarial process
According to WhiteKnight, one of the most common missteps employers make in managing employee injuries is failing to focus on communication and collaboration with the injured employee.
“When someone gets injured or has an illness, many employers immediately think, ‘I've got to report this to the [LTD] insurer or to WSIB to get the ball rolling,’” he says.
“What ends up happening is, where you should have a collaborative relationship between the employer and the employee, it feels like the employer and either WSIB or the insurer are in one camp and the employee is in the other and, from the outset, it feels adversarial - whether or not the employer is intending to do this, that's the way it feels to an employee.”
WhiteKnight notes that many people are facing financial challenges, so their biggest worry if they get hurt is that they’re going to be fired or not receive any compensation while they’re off work. If the injury compensation process starts off as seeming adversarial, it’s going to exacerbate the situation, especially if the employer starts asking about when they can return to work in short order, he says.
“You have someone who has a traumatizing thing happen to them and they're off work, and they're terrified, and the first thing that they see is their employer seemingly aligning themselves with the insurance company,” he says. “The next thing they do is they call they call an injury lawyer and they say, ‘I want to sue because I'm terrified and I can't live without income.’
“Oftentimes, I ask these people ‘Is your insurer still paying, or are you still talking with your manager at work?’ and they say, ‘Yes, but I'm just afraid they're going to terminate me because they're talking behind closed doors and they're not keeping me in the loop’ - this is the type of stuff that makes employees feel terrified and feel like they need to hire lawyers.”
Communication key to collaboration
To avoid or mitigate this type of situation, employers should make efforts to keep the lines of communication open with employees and the insurer so everyone is on the same page – the employee doesn’t get worried about their job, the insurer can properly assess the matter, and the employer and employee stay connected while the employee is off work, says WhiteKnight.
Often, the employer’s HR department is familiar with the LTD or workers’ compensation paperwork, so HR can play an important role in facilitating the process while maintaining a positive relationship with the employee by staying in touch and offering guidance on the process. This can help the employee get through a stressful situation and get the claim processed more efficiently, according to WhiteKnight.
“I usually tell people to just try and keep the lines of communication open with their employer and with the insurer, feed them the information because they want to assess the claim to understand the situation,” he says. “When employers or insurers respond positively to that, they bring the employee back in and they all figure it out, we don't have to sue anyone, nobody gets terminated, and everyone saves on legal fees.”
In WhiteKnight’s experience, the best employers he sees in managing injured employees are those who get creative, are helpful, and, again, maintain good communication.
“They reach out to assist with paperwork or little things like that, but then they go further in considering how to accommodate this person and how to facilitate their return,” he says. “The employer wins because the person wants to and usually gets back to work, and the employee wins because they get their paycheque and their sense of wellbeing back.”
“People get a very high sense of their own self-worth through work, so when they get injured and they go off on LTD or worker’s compensation, it has a psychological toll,” says WhiteKnight. “It comes back to that communication and collaboration - those are the best things for employers to be doing.”
