In 2019, the Ontario government appointed two external reviewers to conduct an operational review of the Workplace Safety and Insurance Board (WSIB) to help ensure the WSIB’s long-term sustainability and effectiveness. The WSIB Operational Review report was released on November 6, 2020, and contained 25 recommendations as we reported on here.
Two of the recommendations are of particular concern to Developmental Services agencies:
- The WSIB and the government should extend mandatory coverage to developmental support workers and those working in residential care facilities.
- The WSIB should move to an “exclusionary model” for coverage on a go-forward basis for new employers and industries. This would not affect currently non-mandatory covered industries, but it would apply to any new firms or industries operating in the province.
The Ministry of Labour explains that this recommendation to extend WSIB coverage to DSWs and PSWs is intended to address uneven treatment of these workers who are doing the same activities and functions as their covered counterparts.
In order to assess how these recommendations could or should be implemented, a consultation process was established on March 30, 2021 with today, April 28, 2021 being the final day for submissions.
In an effort to support agencies who are not registered for WSIB and who are not funded to cover the excessive cost (sometimes as much as 12x higher than their current alternative workplace accident/illness coverage), we have provided an analysis of the consultation questions posed by the consultation process below:
[Bolded content is questions posed by the Consultation]
- The WSIB covers work-related injuries and occupational diseases (including infectious diseases like COVID-19). Would extending mandatory coverage to all employers of PSWs and DSWs help improve worker protections?
This depends on the quality of alternative coverage provided by employers. Many employers provide comprehensive benefit coverage including a combination of sick time, work related injury accident coverage, short term disability and long-term disability.
In many cases, these alternative coverage programs provide coverage that is equivalent to what is offered through WSIB at a significantly lower cost to the employer and the system, as well as more generous benefits for workers (ex. a longer period of full wage replacement as opposed to the partial wage replacement offered through the WSIB).
While we acknowledge that some benefit programs offered by employers who have chosen not to opt in to WSIB are not as robust as those available through WSIB, this can be addressed by legislating minimum standards of benefit coverage for workplace injury and illness, rather than mandating participation in WSIB.
- What benefits and services would WSIB coverage provide to PSWs and DSWs that are not provided under private insurance schemes?
Once again, this depends on the quality of alternative coverage provided by employers. Many employers provide comprehensive benefit coverage including a combination of sick time, work related injury accident coverage, short term disability and long-term disability.
As mentioned, in many cases, these alternative coverage programs provide coverage that is equivalent to what is offered through WSIB at a significantly lower cost to the employer and the system, as well as more generous benefits for workers.
We acknowledge that some benefit programs offered by employers who have chosen not to opt in to WSIB are not as robust as that available through WSIB. This may include alternative workplace accident insurance that does not cover workplace chronic mental stress injuries or infectious disease coverage. However, once again this could be addressed by mandating that employees who choose not to opt into WSIB ensure that they have alternative insurance that covers these types of injuries and illnesses.
- Would extending coverage to all employers of PSWs and DSWs help with recruitment and retention of these frontline workers?
Agencies employing DSWs and PSWs that are enrolled in WSIB have the same recruitment and retention challenges as agencies that are not enrolled with WSIB. WSIB does not materially influence this issue.
Based on feedback and surveys conducted with employees who decline employment, choose not to continue with the recruitment process or choose to depart employment voluntarily, their self-reported explanations were: access to full time work, failure to provide premiums for overnight/ evening work, and low wages.
In one study conducted by an agency we support, between January 2021 and March 2021, the agency found that of the 385 applicants that responded to their job postings, only twenty-two were hired. Not one of the candidates who discontinued the process or declined employment indicated that WSIB (or the absence of WSIB coverage) influenced their decision. During the same period, exit interview results did not reveal any departing employees who reported that WSIB (or the absence of WSIB coverage) influenced their decision.
The issues that do influence retention and recruitment (i.e. full-time work, premiums and wages), are a function of the chronic underfunding of broader public sector employers of DSWs and PSWs. Simply put, given the government’s on-going failure to adequately fund the not-for-profit organizations that deliver services to the provinces most vulnerable people (people with physical and developmental disabilities, elders and people with mental health disabilities), agencies in this province face barriers to creating full-time jobs, cannot adequately compensate or incentivize evening/overnight and weekend work, or provide competitive wages. The government’s failure to fund Pay Equity exacerbates this issue.
Making WSIB mandatory for these agencies would in some cases increase employer costs for workplace accident insurance by as much as 12 times. For some employers this would add costs in the amount of approximately 2-3% of their total payroll. In the absence of a corresponding increase in funding from the provincial government to cover the significantly higher costs of WSIB, the issues that are driving retention and recruitment challenges (identified above) would be further exacerbated.
- The recommendation to extend mandatory WSIB coverage to DSWs and PSWs did not speak to what threshold to consider as a standard to extend coverage (i.e. PSWs and DSWs who make up a significant portion of an employer’s workforce be covered, as opposed to an employer who may employ a single PSW or DSW in their organization). What might be an appropriate threshold (i.e. the proportion of PSWs/DSWs working for an employer) to consider as a standard to extend coverage?
We do not believe a threshold in the number or portion of the workforce that should result in an extension of mandatory coverage for an organization is appropriate. The practice of mandating that every employee of an agency be covered by WSIB merely because some workers are mandated to be covered creates unreasonable added expense for employers who have a large contingent of non-mandatory workers (administrative workers, personnel who deliver remote, online or virtual services). In most cases the payroll for non-mandatory workers is easily segregated from that of DSW/PSW workers whose wages are most often funded and tracked by employers separately from the hours and wages of non-frontline workers.
If the government opts to mandate WSIB coverage for PSWs/DSWs, we submit that the coverage should be mandatory only for said workers and not for other workers whose wages can be segregated and who do not perform work that is mandated to be covered.
Should the government reject this proposal and wish to nonetheless proceed with instituting a threshold based mandatory coverage for agencies employing PSWs/DSWs, we would suggest that the threshold should be agencies for whom the simple majority (50% plus 1) of their workforce is comprised of employees occupying DSW/PSW roles.
- If there are additional considerations, issues, or ideas about extending mandatory coverage to employers of PSWs and DSWs that are not addressed through these questions, please take this opportunity to share those thoughts as well.
The most significant issue for government funded employers of PSWs and DSWs associated with moving towards mandatory coverage is the cost. Once again, based on our research the added cost of WSIB can run between an additional 2-3% of total payroll. This could mean hundreds of thousands, if not millions, of dollars in new costs for chronically underfunded not-for-profit agencies.
If the government mandates WSIB for these employers without providing corresponding funding increase, this could render agencies unable to meet existing liabilities, and result in agencies being forced to layoff workers, reduce service hours or increase staffing ratios, all to the detriment of workers and the vulnerable people they support. This could have a devastating impact on people with developmental disabilities and their families who already face massive wait lists for services and supports.
We respectfully submit that mandating WSIB coverage for DSWs/PSWs will not achieve the stated purposes of this reform. We submit that alternative measures could be adopted that would achieve the stated purposes without subjecting underfunded agencies to the excessive and unfunded costs of WSIB. In the alternative, if WSIB is made mandatory for government funded agencies, the government must provide a corresponding increase in funding to ensure that critical supports and staffing levels can be maintained for the benefit of vulnerable people.
PooranLaw will continue to monitor legal developments related to WSIB. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.