Employers

Working conditions established by employers directly affect the incidence of work-related injuries and diseases. In addition, employers’ policies and practices have a great influence on the post-injury employment prospects of workers who sustain significant disabilities from workplace injuries (Thomason, Burton, and Hyatt, 1998: 5). For example, the 1989-90 Ontario survey of injured workers with disabilities found that 90 per cent of the workers who successfully returned to work following their injuries returned to the employers for whom they were working at the time of their accidents (Johnson and Baldwin, 1993: 33). Forty per cent of the workers who never worked again after their injuries reported that they had sought re-employment with their pre-injury employers, but were rejected (Butler, Johnson, and Baldwin, 1995: 462).

“Most injured workers should find it easier to return to their time-of-accident jobs than to find other employment. Workers with several years of experience with a firm are often so familiar with the physical requirements of their jobs that they can adapt to the limits of an impairment with little or no help from their employer. Experienced workers are also more likely to be helped by their employers since, on an average, they have more firm-specific experiences and training, much of which may have been paid for by their employers.” (Johnson and Baldwin, 1993: 33)

The Canadian Injured Workers Alliance’s 1995 survey found that most of the 67 respondents who had returned to work at least once since their injuries said their employers had been at least partly helpful in the return to work process. ^[23] Not surprisingly, most of the 45 respondents who had not worked since their injuries said that their employers were not helpful (Canadian Injured Workers Alliance, 1995b: 144-151).

Accommodation

Job accommodations provided by employers are important determinants of long-term re-employment following a workplace injury that results in a permanent disability (Baldwin and Johnson, 1998: 52; Johnson, Baldwin, and Butler, 1998: 24-25, 30; Crook, Moldofsky, and Shannon, 1998: 1575). In the 1989-90 Ontario survey, workers whose employers provided accommodations were more likely to have stable post-injury work histories than workers who were not provided with accommodations (Butler, Johnson, and Baldwin, 1995: 465). The authors suggest that “the finding that a strong bond existed between injured workers and firms that provided accommodations supports the contention that firms are most willing to accommodate workers who are unlikely to leave the firm’s employ” (1995, 465-466). It may also be argued that workers are more likely to remain loyal to employers who accommodate them.

During the 1980’s, the Canadian Charter of Rights and Freedoms and a variety of human rights legislation established the human rights of persons with disabilities in Canada. Under federal and provincial human rights legislation, employers are prohibited from discriminating against persons with disabilities. The Manitoba Human Rights Code states that it is discrimination to fail to make reasonable accommodation—up to the point of undue hardship ^[24] —for the special needs of an individual or group that are based on protected characteristics, including persons with disabilities (Manitoba Human Rights Commission, undated). Injured workers with disabilities whose employers unreasonably refuse to re-employ or accommodate them may seek remedy by filing a human rights complaint.

Although human rights legislation is considered paramount to workers’ compensation legislation, an increasing number of provinces have chosen to incorporate within their workers’ compensation legislation a provision requiring employers to re-employ and accommodate injured workers. Quebec was the first province to legislate injured workers’ rights to be reinstated by their pre-injury employers in 1985, and was followed by Ontario and New Brunswick in 1990, and Prince Edward Island and Nova Scotia in 1995 (Gunderson, Hyatt, and Law, 1995: 143). Workers’ compensation legislation in Newfoundland and all provinces west of Ontario—including Manitoba—does not require employers to accommodate and/or re-employ injured workers. ^[25]

The details of the reinstatement provisions of each province’s legislation vary ^[26], but all require employers to re-employ an injured employee when the worker is able to resume work, either in the position she or he held at the time of injury, or an equivalent position. If the worker is not physically capable of performing the essential duties of job she or he was doing at the time of injury, the employer is obligated to offer the worker any suitable jobs which become available.

Many of these provinces limit the obligation to re-employ to workers who have been employed by the employer for at least one year. Many provinces also provide exceptions for employers with fewer than 20 employees, as well as employers in the construction industry. The obligation to re-employ has a time limit in some provinces (e.g. one year after injury in Prince Edward Island; two years after injury for New Brunswick employers with more than 20 employees, one year for employers with 10-20 employees).

Gunderson, Hyatt, and Law (1995) link the emergence of these provisions to the development of anti-discrimination and human rights legislation during the 1980’s, as well as employment equity initiatives during the same period. They also note that reinstatement provisions are also consistent with the most desirable objectives in most workers’ compensation boards’ hierarchies of objectives: return to the same or similar employment with the same employer.

There has been no comprehensive research on the success of these reinstatement provisions (Association of Workers’ Compensation Boards of Canada, 1998: 21), but there are suggestions that a “right” to re-employment may not always benefit injured workers with disabilities (Canadian Injured Workers Alliance, 1999). For example, other vocational rehabilitation options (e.g. re-training for a new occupation) that may be more appropriate for some injured workers may be difficult to access if re-employment with the pre-injury employer is a legislated right. Similarly, some workers may be at risk of re-injury if they resume their pre-injury employment without modifications to address the factors which caused the original injury (Royal Commission on Workers’ Compensation in British Columbia, undated2). T.G. Ison argues that employers who re-instate an injured worker only because of the legal obligation may create negative working conditions that make the injured worker’s employment precarious. He also argues that workers who quit or are terminated under such conditions may have difficulty re-establishing eligibility to compensation benefits or vocational rehabilitation services (Association of Workers’ Compensation Boards of Canada, 1998: 22, citing Ison, undated).

Vocational Rehabilitation

Every workers’ compensation board in Canada provides or funds vocational rehabilitation services to facilitate the post-injury employment of claimants whose injuries have resulted in permanent disabilities (Association of Workers’ Compensation Boards of Canada, 1998: 6). Although each board’s specific policies vary, the general goal of vocational rehabilitation is to help each injured worker return to an occupation and wage as similar as possible to the occupation and wage he or she held at the time of injury (Allingham and Hyatt, 1995: 158).

Vocational rehabilitation services are intended to play a major role in assisting permanently-disabled injured workers through the often-challenging process of returning to productive employment. In addition, vocational rehabilitation services have the potential to yield substantial cost savings to workers compensation boards: by helping injured workers with disabilities return to productive employment, these services reduce or eliminate the wage loss benefits that workers’ compensation boards pay to injured workers with disabilities who are not employed. One might assume, therefore, that there would be considerable research devoted to the effect vocational rehabilitation services have on the post-injury employment of injured workers with disabilities. That does not appear to be the case.

To the best of our knowledge, no workers’ compensation board in Canada has recently conducted research on the effects vocational rehabilitation services have on the post-injury employment outcomes of injured workers with significant disabilities. Allingham and Hyatt suggest that a major reason for this shortage of research relates to the fragmentation of data in jurisdictions where vocational rehabilitation services are provided by external agencies rather than the workers’ compensation board.

“The provider of workers’ compensation insurance (and benefits) is often not the provider of vocational rehabilitation, and instances where hard data on the worker, the worker’s injury, rehabilitation assistance, benefit payments, and post-injury labour-market experiences are found together are rare.” (Allingham and Hyatt, 1995: 159)

Very few of the major studies of the post-injury employment patterns of injured workers with disabilities in Canada and the U.S. devoted much attention to the influence of the availability, nature, and duration of vocational rehabilitation services. Instead, most of these studies have been primarily concerned with identifying various characteristics of injured workers (e.g. age, gender, education) which are related to stable post-injury employment, unemployment, or unstable employment. The few studies which have examined the impact of vocational rehabilitation services have done so superficially, such as by comparing the post-injury employment outcomes of injured workers who received vocational rehabilitation services to the post-injury employment outcomes of injured workers who did not receive these services. Other studies have performed questionable cost-benefit analyses, often using file closures—not post-injury employment—as the measure of successful vocational rehabilitation (Davidson, 1994).

Using data from the 1989-90 Ontario survey, plus additional data from the WCB of Ontario’s vocational rehabilitation administrative files, Allingham and Hyatt found that only 39 per cent of the injured workers with permanent disabilities who participated in a vocational rehabilitation program eventually returned to work, compared to 91 per cent of those who did not participate in a VR program (Allingham and Hyatt, 1995: 169). The authors warn, however, that this disparity is misleading, arguing that claimants who require and participate in vocational rehabilitation programs are likely to have greater barriers to re-employment than claimants who do not access VR services (1995: 171).

To provide a more useful comparison between the two sub-samples, Allingham and Hyatt controlled for permanent disability rating. Amongst the sub-sample of injured workers who had not received vocational rehabilitation services, a one per cent increase in disability rating resulted in a substantial 1.4% reduction in likelihood of return to work. Amongst the sub-sample of persons who had received vocational rehabilitation services, however, a one per cent increase in disability rating only resulted in a 0.09% reduction in likelihood of return to work. Allingham and Hyatt conclude that “it appears that vocational rehabilitation is having the intended effect—it is reducing the impact of residual disabilities on the return to work of injured workers” (1995: 171).

In an evaluation of workers with back injuries, the Workers’ Compensation Board of British Columbia found that only 43 per cent of the workers who returned to work credited the WCB of BC’s vocational rehabilitation services with helping them to “find or keep the job they returned to” (Royal Commission on Workers’ Compensation in British Columbia, 1999: Vol. 1, Ch. 6, pg. 9).

Approximately half of the 113 injured workers who responded to the Canadian Injured Workers Alliance survey felt that the vocational rehabilitation services they received were not useful (Canadian Injured Workers Alliance, 1995a: 61). Slightly more than half of the respondents who had been referred to vocational rehabilitation services reported that they had not received a formal vocational assessment (1995a: 59), and many felt that they were offered a limited choice of vocational rehabilitation goals and training programs (1995a: 25). Many respondents also reported difficulties in choosing goals for their vocational rehabilitation, describing the process as “…a negative process, not one where the voc rehab officer and client work in partnership” (1995a: 59; italics in original).

Unions

Preventing disability or death from work-related injuries or illnesses is among the oldest and most enduring goals of labour unions (Schurman, Weil, Landsbergis, and Israel, 1998: 121). Unions negotiate contract provisions to enhance workplace health and safety, and are also politically active in the promotion of legislation and other initiatives designed to prevent workplace injuries and diseases, and to compensate workers who do become disabled at work (Thomason, Burton, and Hyatt, 1998: 4).

Hirsch, MacPherson, and Dumond (1997) list the following ways unions may influence the frequency of workplace injuries and workers’ compensation claims:

• Compensation for workplace injuries is more likely to be understood as a right by unionized workers and their employers. In the event of an injury, unionized workers are more likely to be already aware of their entitlement to workers’ compensation benefits, or are quickly alerted to this entitlement by co-workers, shop stewards, or supervisors.



• Managers are less likely to discourage unionized workers from reporting workplace injuries, since such actions might be reported to the union and provoke a grievance.



• Unionized workers are less likely to be penalized or believe they will be penalized if they report workplace injuries and file claims for workers’ compensation.



• Although most of the historical evidence suggests that unionized workplaces tend to be more dangerous than non-union workplaces, collective bargaining may allow unions to provide their members with safer working conditions.

Unions are democratic institutions, however, which clearly are obligated to represent all of their members. Injured workers with disabilities make up a small fraction of union members. Although many non-disabled workers are sympathetic to the problems and needs of workers with disabilities, they are often more concerned about issues which immediately affect them (e.g. wages and job security) than with the accommodation or rehabilitation issues of workers with disabilities (Thomason, Burton, and Hyatt, 1998: 4).

A recent report by the Canadian Labour Congress warns that the development of joint health and safety committees during the 1970’s and 80’s has resulted in the de-politicization of workers’ compensation issues within the Canadian labour movement. As a result, the report argues that health, safety, and workers’ compensation issues are now regarded more as technical rather than political issues.

“This perspective has served the employers and governments well who seek to de-politicize health and safety and workers’ compensation. The results achieved by joint committees will continue to decline without immediate action from the labour movement to bring health and safety representatives into the mainstream of the labour movement and to bring activism back into health, safety and workers’ compensation.” (New Strategies Sub-Committee, 1996: 5)

Return to Work

There is mixed evidence on the role unions play in helping workers return to productive employment following a workplace injury. A study of 1,461 Wisconsin workers who sustained back injuries during 1989 and 1990 found that union members were more likely than non-union members to return to work with their pre-injury employers. Union members also had a lower incidence of “long-term nonemployment after the first return to work” (Galizzi, Boden, and Liu, 1998: 101-102). ^[27]

Several other U.S. studies also found that unionized workers were more likely to return to work than non-unionized workers, but union members tended to return to work later than non-union members (Butler and Worrall, 1985; Johnson and Ondrich, 1990). Johnson and Baldwin suggest that this occurred because unionized workers protected by seniority rules do not face the same risk of losing their jobs as non-union workers and may, therefore, “invest more time in recuperation” (Johnson and Baldwin, 1993: 53).

The 1989-90 survey of injured workers with permanent disabilities in Ontario found that union membership was a highly significant, positive influence on returns to work for men and women. Johnson, Butler, and Baldwin (1995) reported that union members were more likely to return to work than non-union members, and union members who returned to work returned 20 to 40 per cent sooner than those who were not union members. ^[28]

“The effect of union membership on returns to work in Ontario appears to reflect unions’ attempts to help their injured members return to work…Although 66 per cent of the workers [in the study] were unionized, only 49 per cent of the workers who did not return to work were unionized. More than one-quarter of the workers who moved to new jobs after being injured did so with the help of their labour union” (Johnson, Butler, and Baldwin, 1995: 80).

Although union membership encouraged prompt return to work, a subsequent publication by the same authors clarified that union membership had less of an impact on the long-term success or sustainability of union members’ returns to work (Butler, Johnson, and Baldwin, 1995).

“These results, combined with the previous finding showing that union members were more likely than nonmembers to return to work, suggest that unions do best at protecting workers’ time-of-injury jobs while they recuperate from their injuries but contribute less to successful outcomes among those who return to work.” (Butler, Johnson, and Baldwin, 1995: 463)

Most of the unionized injured workers who participated in the 1995 survey of Canadian injured workers were dissatisfied with the role their unions played in the return to work process. Most felt that their unions should have taken greater action on their behalf (Canadian Injured Workers Alliance, 1995b: 151-156).

“Views about union assistance were largely based on criticism of the union for inaction on behalf of the injured worker’s case…We would like to make a special point about respondents’ unhappiness with the role of unions in assisting them in the return to work process. One would expect that unions would be a helpful source of support for injured workers employed in a unionized workplace at the time of their injury. But this is NOT the case.” (Canadian Injured Workers Alliance, 1995a: 66; capitals in original)

That report also argued that injured workers with disabilities were competing with older workers with greater seniority for limited numbers of less demanding jobs.

“The senior workforce (because of seniority, etc.) and disabled injured workers are now in greater competition for the limited number of jobs in the Modified Work Programs.” (Canadian Injured Workers Alliance, 1995a: 7)

“Labour sees that an injury could happen to anyone of us but everyone looks forward to lighter duty as we gain seniority. Returning an injured worker to work is only one of their many issues.” (Canadian Injured Workers Alliance, 1995a: 26)

The report also suggests that older workers may sometimes feel that workers with disabilities have the advantage in this competition.

“Seniority issues—a lot of tension here. Older workers who are looking forward to the less demanding jobs are seeing these jobs go to the injured and disabled.” (Canadian Injured Workers Alliance, 1995a: 28)

Disability Agencies

Since the mid-1980’s there has been considerable research on the labour force participation of persons with disabilities in Canada (Study Group on Employment and Disability, 1991; Roeher Institute, 1992; Bunch and Crawford, 1998). Several studies have examined the impact community-based agencies have on the re-employment of persons with particular disabilities (Canadian Paraplegic Association, 1996), but we did not find any previous research examining the influence of these agencies on the re-employment of injured workers with significant disabilities.

Injured Workers Groups

According to the Canadian Injured Workers Alliance’s web site (http://www.ciwa.ca/), there are approximately 80 regional injured workers groups in Canada. The Injured Workers Association of Manitoba has existed since the early 1970’s, and is located in Winnipeg. There are also several small fledgling injured workers groups outside of Winnipeg.

CIWA’s 1995 survey contains the only reference to the impact of injured workers groups found during this review of previous research. 76 of the 113 injured workers who participated in that survey provided an opinion about whether or not injured workers groups were helpful. The majority (52) answered “yes.” Most of those who answered “no” indicated that an injured workers group did not exist in their area, or that they were not aware of one which existed (Canadian Injured Workers Alliance, 1995b: 161-165).