Workplace injuries occur more commonly than we think and can significantly impact those involved. As a result of workplace injuries, employees may not be able to return to work full-time, if at all. To address this issue, the Workplace Safety and Insurance Act (WSIA) was enacted in Ontario. The WSIA provides benefits to employees recovering from a workplace injury so that their compensation is not reduced due to their injury. For example, if an employee can only work half of a 10-hour shift due to their workplace injury, then the remaining half can be covered by WSIA benefits. As the employee only works part-time hours, this raises the question of how their vacation days or absences would be calculated. In other words, should the employer deduct the full hours of the shift or only the hours worked?

In this post, we will discuss how the court has considered the issue of how to calculate vacation days or days taken for leave when the employee is working part-time hours, with the remaining hours being covered by workplace injury benefits. In particular, we will examine a case example, Durham Regional Police Assn. v. Durham Regional Police Services Board, 2021 ONSC 1607, which describes this scenario. We will also discuss how vacation and leave are calculated for employees receiving workplace injury benefits. This will be helpful to both employees and employers who are affected by the WSIA in Ontario. 

How do workplace injury benefits work in Ontario?

In Ontario, employees who have experienced workplace injuries that affect their work may be covered by the Workplace Safety and Insurance Act. Under the Act, injured workers may be able to be compensated for the work they can no longer perform as a result of the workplace injury.  

Workplace injuries can include physical injuries and their impacts on an employee’s mental well-being. For instance, a particular section of the Act addresses post-traumatic stress disorder in first responders, such as firefighters, police officers, paramedics, etc. Post-traumatic stress disorder is presumed to be an injury arising out of the workplace unless there is evidence that it arose from another matter. 

The Workplace Safety and Insurance Board handles the injury claims and any applicable benefits. The benefits can cover the hours the employee would have worked if not for the injury. Also, if the employee returns to work for partial hours, their benefits may be able to cover the remaining hours in their previous full shift. This was what happened in the Durham case, described below. 

How is vacation or leave calculated when an employee receives workplace injury benefits?

The Durham case mentioned above can help illustrate how the calculation for vacation or leave works if the employee receives workplace injury benefits under the WSIA. 

In Durham, the employee was a police officer who experienced post-traumatic stress disorder after working at the Durham Regional Police Services Board for 11 years. After his diagnosis, he qualified for workplace injury benefits under the WSIA. He was absent from work for a few years while receiving benefits and later began gradually returning to work. However, he could not return to full-time hours and was asked to work partial hours. He worked for half the time of his previous full-time hours, so he worked 5-hour shifts. His employer paid for the 5 hours he worked, and the Workplace Safety Insurance Board paid him an additional 5 hours to cover a typical shift for the employee before his injury. 

The employee had taken 18 days off on leave and seven days for statutory holidays for 25 days. His employer had deducted 10-hour hours from his vacation accumulation for the 25 days he took off. The employee claimed that only 5 hours per day should have been taken out of his vacation bank, as he only worked 5 hours per shift. His employer disagreed, and the parties attended an arbitration. 

At the arbitration, the arbitrator decided that the employer was correct in deducting the 10 hours for each day that the employee took off. The arbitrator found that the employee did not lose any benefits when the employer deducted 10 hours rather than 5, as the remainder of his shift hours were covered by compensation from the Workplace Safety Insurance Board. The arbitrator found that the employer was deducting based on the collective agreement between the parties. 

The employee appealed the matter to the court. 

The court reviewed the arbitrator’s decision to determine if it fell within the range of reasonable outcomes that could have been decided. The court found that the arbitrator did consider both the framework under the WSIA and the collective agreement signed by the parties. The court also agreed with the arbitrator’s reasoning that if only 5-hour shifts were deducted from the employee’s vacation banks, he would receive more benefits because he would ultimately have more vacation time available. Also, the court emphasized that the employee was not losing any benefits if the employer deducted the full 10 hours for each day he took off. 

As a result, the court upheld the arbitrator’s decision. 

Full workday hours deducted from vacation or leave, even if only partial hours worked

As seen in the Durham case, even if only partial hours are worked by an injured employee, full workday hours would be deducted from their vacation bank. This applies when an employee is also receiving benefits from the Workplace Safety Insurance Board for the hours that he or she can no longer work due to the injury. Overall, the employee could take advantage of benefits such as vacation days if the employer deducts the full workday hours rather than the partial hours that the employee works. 

Therefore, where there has been a workplace injury, it is important to determine if the WSIA entitles that employee to benefits, which may impact how remaining vacation days or leave is calculated. 

Contact Haynes Law Firm in Toronto for Advice on Workplace Injury Benefits 

Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with issues concerning workplace injury benefits from the Workplace Safety and Insurance Board. For employees, our goal is to ensure that they understand their rights and receive maximum compensation. Haynes Law Firm also assists employers in avoiding liabilities that may arise from failure to adhere to employee benefits and insurance for workplace safety properly. We are dedicated to finding the best resolution for you.

To book a consultation, please contact us online or by phone at 416-593-2731.