Fired After Returning to Work From a Workplace Injury? The Six-Month Rule That Shifts the Burden to Your Employer

What is the re-employment obligation, and does it apply to you?

Ontario does not simply leave an injured worker to the general law of dismissal. Section 41 of the *Workplace Safety and Insurance Act, 1997* creates a specific, statutory duty to take you back. It is narrower than most people assume, and it is worth checking the two gates before anything else.

First, tenure. Section 41(1) applies to a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by that employer. Continuous employment is measured to the date you were hurt, not the date you tried to come back.

Second, employer size. Section 41(2) says the section does not apply to employers who regularly employ fewer than 20 workers. That is a genuine carve-out and it removes a large number of small Ontario employers from this duty entirely. If your employer is under 20, section 41 gives you nothing, and your route runs through the *Human Rights Code* duty to accommodate and the ordinary law of wrongful dismissal instead.

Construction is handled separately. Section 41(8) puts employers engaged primarily in construction under prescribed requirements instead, and expressly disapplies the one-year tenure condition along with subsections (2), (4) to (7) and (10) for those workers. If you were hurt doing construction work, do not assume the rules described below are yours.

What exactly must your employer offer you?

That turns on what you are medically able to do, and the Act splits it into two cases.

Note what subsection (4) does not say. It does not permit a demotion dressed up as a return. If you can do your old job, comparable earnings is the floor for any alternative the employer proposes. A return to a materially worse role at materially worse pay is not compliance, and it may independently be a constructive dismissal at common law.

Section 40 sits alongside this and is often overlooked. It obliges the employer to co-operate in your early and safe return to work by contacting you as soon as possible after the injury, maintaining communication throughout your recovery, and attempting to provide suitable employment consistent with your functional abilities that restores your pre-injury earnings where possible. The same section imposes matching duties on you, so keep your side of the correspondence clean and documented.

The six-month rule: why timing is the whole case

This is the provision worth knowing by heart. Section 41(10) reads that if an employer re-employs a worker in accordance with the section and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer's obligations. The employer may rebut the presumption by showing that the termination was not related to the injury.

In ordinary employment litigation you carry the burden of showing the employer did something wrong. Here that is inverted for six months. The employer has to come forward with a reason, and a reason that holds up as genuinely unrelated to your injury. Vague restructuring language, performance concerns that appeared only after you came back, and a role quietly filled by someone else all sit badly against that burden.

How long does the obligation last?

Section 41(7) ends the obligation at the earliest of three dates, and people routinely assume the longest one applies:

• the second anniversary of the date of injury;
• one year after you became medically able to perform the essential duties of your pre-injury employment; or
• the date you turn 65.

Because it is the earliest of the three, a worker who recovers quickly can see the obligation expire well inside two years. Work out which limb bites first on your facts before assuming you are still covered.

What can the Board actually do about it?

On your request or on its own initiative, the Board determines whether the employer met its obligations (s. 41(11)). If it decides the employer did not, s. 41(13) gives it two tools: a penalty on the employer not exceeding your net average earnings for the year preceding the injury, and payments to you for a maximum of one year as if you were entitled to loss-of-earnings benefits under section 43.

Read that carefully, because it sets expectations. The penalty is paid to the Board, not to you. What comes to you is up to a year of payments. That is meaningful, and it is not the same thing as the severance a court would award for a wrongful dismissal. Which is exactly why the next section matters.

A WSIB re-employment complaint is not your severance claim

These are two different tracks with two different decision-makers, and pursuing one does not resolve the other. The Board decides whether the statutory re-employment duty was met. A court decides whether you were given reasonable notice of dismissal, valued on the *Bardal* factors: your age, length of service, the character of your employment, and the availability of similar work. An injured worker in a physically demanding trade often scores badly on that last factor, which lengthens notice rather than shortening it.

There is usually a third track as well. Disability is a protected ground under the *Human Rights Code*, and the duty to accommodate to the point of undue hardship exists independently of section 41(6). Where an employer's real objection is that you came back with restrictions, that is a human rights claim whether or not the WSIA duty applied to your employer at all. We cover the parallel analysis in our guide to being fired after a workplace injury.

If your employer is under 20 workers, or your injury predates a year of service, or the s. 41(7) clock has already run out, none of that ends the matter. It simply means the statutory presumption is unavailable and the ordinary claims carry the file.

What to do in the first weeks after the termination

1. 1.Fix the dates. Date of injury, date you were re-employed, last day worked. The six-month presumption and the three-month request window both run off those.
2. 2.Ask the Board to determine the question under s. 41(11), in writing, inside three months of the termination.
3. 3.Do not sign the release yet. A severance release will normally end your civil claim, and it may be presented to you as though it also disposes of everything else. Get it read first.
4. 4.Preserve the return-to-work paper trail. Functional abilities forms, modified-duties offers, emails about accommodation, the schedule you were actually given, and anything showing your old duties being performed by someone else.
5. 5.Write down what changed after you came back. Shift changes, supervision changes, sudden performance criticism, and who said what. Under s. 41(10) it is the employer who must explain the termination, and your record is what tests the explanation.
6. 6.Get the severance priced separately. The Board's remedy is capped at about a year of payments. Reasonable notice is a different number and often the larger one.

A termination that lands inside six months of your return is not an ordinary dismissal, and it should not be treated like one. If that is your situation, start with what a package should look like in our guide to severance pay in Ontario, and send the offer through our severance package review before you sign anything.

About the Author

Amir Mirza

Founder & Employment Lawyer, Mirza Law

Amir Mirza is the founder of Mirza Law and an Ontario employment lawyer acting for employees. He is licensed by the Law Society of Ontario and is a member of the Ontario Trial Lawyers Association. He writes about severance, wrongful dismissal, and the rights Ontario employees have when their job ends.

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