The B.C. Government recently amended its workers compensation laws which impose greater obligations on employers to accommodate injured workers.
On October 31, 2022, Bill 41 – Workers Compensation Amendment Act (No. 2), 2022 (the “Amending Act”) was introduced to the British Columbia Legislative Assembly and received Royal Assent on November 24, 2022. The Amending Act imposes duties and obligations for employers to accommodate and return injured workers to employment, along with explicit provisions prohibiting employers from suppressing compensation claims made by employees, among other new provisions.
Employers and Employees Required to Co-operate
For employers, the most significant amendment to the Workers Compensation Act, RSBC 2019, c. 1 (the “Act”) is the introduction of Division 3.1 – Return to Work and Other Duties in Relation to Injured Workers. Under this new division, there is a statutorily imposed duty on employers to co-operate and maintain the employment of injured workers. The amendments require employers and workers to co-operate with each other and with WorkSafeBC to support the return of the worker to their pre-injury employment or, where that is not possible, to other suitable work. This duty to co-operate includes: maintaining communication while the worker remains off work, and identifying other suitable work for the worker, that if possible, would allow the worker to return to earning their pre-injury wages. Failure by either party to co-operate may lead to a complaint being filed to WorkSafeBC.
Employers Required to Maintain Employment and Accommodate to Point of Undue Hardship
Section 154.3 under the new Division 3.1 would also require employers to maintain the employment of workers who have been injured in a work-related accident and who have been with the employer for at least 12 months. Once it is determined that a worker is fit to carry out the essential duties of their pre-injury work, an employer must offer the same or comparable work, with the same or comparable wages to the worker. If the worker is fit to return to work, but not to carry out the same duties of their pre-injury position, an employer must offer the worker the first suitable position that becomes available. Included with this obligation is the duty for employers to make any changes to the work or workplace that are necessary to accommodate a worker up to the point of undue hardship.
An employer’s obligation to maintain a worker’s employment ends on the second anniversary of the date the worker is injured if the workers has not returned to work by that date, or the worker is carrying out suitable work.
In the event an employer terminates a worker’s employment within six months after the worker returns to work, an employer will be deemed to have failed to comply with its duty to maintain employment, unless they can demonstrate that termination was unrelated to the worker’s injury. If an employer fails to comply with these requirements they may attract administrative penalties, up to a maximum wage rate prescribed by the Workers’ Compensation Board, which in 2022 was set at $108,354.
These obligations to maintain employment are not applicable to employers who regularly employ less than 20 workers.
Where these provisions conflict with a term of a collective agreement, the conflicting section of the Act will prevail where it affords the worker a greater benefit than the term of the collective agreement. It is further noted that these provisions do not operate to displace terms of the collective agreement pertaining to seniority.
Claim Suppression
In addition to these duties places on employers to maintain employment and accommodate a return to work, effective November 24, 2022, pursuant to the amended Section 73 of the Act, employers or supervisors would also be prohibited from discouraging, impeding, or dissuading a worker from making or maintaining an application for compensation, or receiving compensation under the Act, whether that be by means of agreement, threat, promise, inducement or persuasion.
Creation of Fair Practices Commissioner
The Amending Act also establishes a Fair Practices Commissioner who will be appointed by WorkSafeBC’s board of directors to investigate complaints by workers and employers of alleged unfairness in dealings with WorkSafeBC effective May 1, 2023. The Commissioner will be able to make recommendations for resolving these complaints and will provide an annual report to WorkSafeBC’s Board of Directors. This complaint process is separate and apart from any existing review or appeal process of individual WorkSafeBC decisions.
Transitional Provisions
The requirements with respect to maintaining employment apply to workers who were injured up to six months before the section comes into force, while the duty to co-operate applies to workers who sustained injury no more than two years before the section comes into force. Those sections will come into force on a date to be set by regulation.
What this Means for Employers
The Amending Act will impose greater obligations on employers, and will also affect the manner in which work related injuries and illness accommodations will be addressed. It will also provide another avenue for workers to put forward claims and complaints in respect to accommodation issues in addition to or in lieu of the Human Rights Tribunal.
If you have any questions regarding the impact of these changes on your workplace policies, please contact a member of our labour and employment team.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.