Recent months have come with a number of updates to Ontario's workers' compensation legislation and related WSIB policy. These include amendments to the Workplace Safety and Insurance Act, 1997 through Bills 190 (the Working for Workers Five Act, 2024) and 229 (the Working for Workers Six Act, 2024), as well as changes to OPM Document No. 18-02-02, "Determining Short-Term Average Earnings" (effective December 5, 2024). Additional policy updates include the introduction of a new classification for Temporary Employment Agencies (effective January 1, 2025).
Legislative Amendments
BILL 190
Under Bill 190, section 14 of the WSIA has been amended to provide entitlement for work-related PTSD, and a presumption of same, for two new categories of workers: wildland firefighters and wildland fire investigators.
"Wildland firefighters" are defined as persons providing one or more of the following fire protections services for or on behalf of the Ministry of Natural Resources and Forestry, either as a direct employee or pursuant to a contract for services with the Ministry:
1. Fire suppression.
2. Fire prevention, fire mitigation or fire safety activities.
3. Rescue and emergency services, including evacuation services.
4. Piloting of aircraft for the purposes of providing the services described in paragraphs 1 to 3.
5. Communication in respect of anything described in paragraphs 1 to 4.
6. Training or evaluation of persons involved in providing anything described in paragraphs 1 to 5;
Similarly, "wildland fire investigators" are defined as a "person who is an employee of the Ministry of Natural Resources and Forestry and is either appointed as an officer under the Forest Fires Prevention Act or duly appointed as a conservation officer by the Ministry and who enters land or premises for the purposes of inspecting the site of a fire or determining the cause and circumstances of a fire".
Related amendments to O. Reg. 253/07, "Firefighters", introduce new rules for calculating time periods applicable to wildland firefighters.
Bill 190 further establishes a presumption of work-relatedness in respect of primary-site skin cancer, applicable to firefighters, fire investigators, and volunteer firefighters, accordingly amending sections 15.1 and 15.2 of the WSIA. For the presumption to apply, the worker must have served in such a role for at least 10 years prior to being diagnosed.
The WSIB is presently in the process of amending OPM Document No. 23-02-01, "Cancers in Firefighters and Fire Investigators", to reflect these changes. Until these policy revisions take effect, decisions will be based on the new legislation.
Bill 190 received Royal Assent on October 28, 2024. The above amendments are in effect as of December 2, 2024.
BILL 229
Under Bill 229, section 15.1 of the WSIA has been amended to create a presumption of work-relatedness in respect of primary-site kidney cancer and primary-site colorectal cancer for firefighters, fire investigators and volunteer firefighters. This presumption requires a minimum of 10 years' employment (or volunteer service) prior to diagnosis.
The Bill also introduces two new sections to the WSIA:
- Section 97.3, which provides for the distribution of prescribed surplus amounts in the insurance fund among Schedule 2 municipal employers.
- Section 97.4, which grants immunity to the WSIB, its Board of Directors, officers and employees in circumstances involving the execution (or intended execution) of a duty or power, in good faith, under WSIA section 97.1 ("Distribution of surplus", as concerns Schedule 1 employers) and section 97.3 ("Distribution of surplus, Schedule 2 municipal employers"). This provision also clarifies that no cause of action lies against the Crown, nor are costs, compensation or damages owing due to the enactment, repeal or amendment of any provision within section 97.1 or 97.3.
Bill 229 received Royal Assent on December 19, 2024. The above amendments are not yet in effect, but will enter into force on a day to be named by proclamation of the Lieutenant Governor.
Policy Revisions
The WSIB has revised its OPM Document No. 18-02-02, "Determining Short-Term Average Earnings", to remove the previous policy distinction between mandatory and voluntary overtime. All overtime worked in a four-week period or complete shift rotation prior to injury is now included in the short-term average earnings calculation. Rather than distinguishing between the two, the revised policy now simply refers to "overtime", removing the need for employers to clarify hours and earnings for different overtime types. The amended policy took effect as of December 5, 2024.
Additionally, the WSIB has introduced a new classification: NAICS 001281, "Supply of administrative, clerical and knowledge-based labour" within Class L - "Professional, scientific and technical" of its Employer Classification Manual, applicable to supply of labour by temporary employment agencies ("TEAs") and effective January 1, 2025. Starting on this date, TEAs are to report all of their supplied administrative, clerical and knowledge-based labour under this new classification.
This policy revision follows related amendments to O. Reg. 175/98, which enabled then new classification effective January 1, 2025. Supply of all other types of labour, however, remains based on the classification of the client, and a TEA's own internal office staff are still to be reported under the "temporary help services classification".
Additional Updates
The WSIB has also moved to update its website with an online archive containing historical Operational Policy Manual entries, to be added in a phased approach that began on December 5, 2024. This means that prior versions of WSIB policy will be readily available online, as far back as 2014, with this phase scheduled to be completed early next year. The OPM User Guide has also been updated with instructions for using the policy archive.
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