Client employers to become responsible for injuries to temporary agency workers

On 6 April 2018 the Bill 18 amendments to the Workplace Safety and Insurance Act came into force, moving the Workplace Safety and Insurance Board (WSIB) one step closer to holding client employers financially responsible for insurance premiums and accident costs associated with workplace injuries to temporary employment agency workers who have been assigned to them.

The amendments are part of the Stronger Workplace for a Strong Economy Act, which came into force in 2014. The amendments add Section 83(4) to the Workplace Safety and Insurance Act and give the lieutenant governor in council the authority to make regulations requiring the WSIB to attribute accident costs from workplace injuries to temporary employment agency workers to the client employer (ie, the employer that they were assigned to at the time of injury). The regulations will also affect the filing of an Employer's Report of Injury (Form 7) and the costs of the injured individual's year-to-date payroll. Any regulations to be introduced under the new section will set out the specific circumstances of when this type of situation applies.

Under the current system, when a worker employed by a temporary employment agency is injured, responsibility for WSIB injury reporting and claim costs for those injuries are attributed to the temporary employment agency. Hiring workers from temporary employment agencies has often served as a way for employers to manage costs and liability. The Bill 18 amendments aim to change this, with a view to incentivising client employers to protect worker health and safety by making them financially responsible for workplace injuries to those workers, even though they are not direct employees. The financial liability is in addition to the legal liability for worker health and safety that exists under the Occupational Health and Safety Act.

The changes to the Workplace Safety and Insurance Act are part of Ontario's efforts to increase workplace protection for temporary employment agency employees through multiple legislative amendments, including those under Bill 148 that came into effect earlier this year (for further details see "Bill 148: significant changes affecting agency employees"). The changes will apply only to Schedule 1 employers that participate in one of the WSIB's experience rating programmes. They will not apply to self-insured Schedule 2 employers.

Any proposed regulation will likely undergo a consultation period before it is implemented.

For further information on this topic please contact David Marchione at Fasken by telephone (+1 416 366 8381) or email ([email protected]). The Fasken website can be accessed at www.fasken.com.

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