Labour and Employment Law Blog

On October 31, 2022, the B.C. government introduced Bill 41 – 2022: Workers’ Compensation Amendment Act (No. 2), 2022 (the “WCA Amendments”) proposing changes to the Workers’ Compensation Act (the “WCA”). The intent behind the WCA Amendments is to bring in a more “worker-centred” approach to B.C.’s workers’ compensation system. Below we discuss those changes that have the greatest potential to affect employers.

New Statutory Duty on Employers to Return Workers Injured on the Job to Work

The WCA Amendments will require, in most cases, employers to have injured workers return to work and make any changes to the work or workplace necessary to accommodate the injured worker, short of undue hardship.

In every case, except where doing so may imperil or delay the worker’s recovery, the employer and the injured worker will have a reciprocal duty to cooperate, which includes:

• Contacting each other as soon as practicable after the injury and maintaining communication;        

• Identifying together suitable work that the worker may be able to undertake that would restore their full pre-injury wages;

• Keeping the Workers’ Compensation Board (the "Board") informed of the worker’s return to work or continuation of work; and

• Responding to Board requests.

Either party can report the other to the Board for a failure to meet the duty to cooperate. The Board will investigate and determine any failures. Failure on the part of the worker to meet the duty to cooperate may result in a reduction, or suspension, of payments of compensation to the worker until they comply.

The WCA Amendments contemplate two return to work scenarios, each imposing a different requirement on the employer:

1. Where a worker is fit to work, but not to carry out the essential duties of their pre-injury work, the employer must offer the worker “the first suitable work that becomes available.”
2. Where a worker is fit to carry out the essential duties of their pre-injury work, the employer must either: (a) offer the pre-injury work to the worker, or (b) offer to the worker “alternative work of a kind and at wages that are comparable to the worker’s pre-injury work and wages from that work.”

If an employer terminates a worker within 6 months after the return to work, the employer is deemed to have failed to comply with its legal duty to return them to work, unless the employer can prove that the termination was unrelated to the worker’s injury. Failure to comply may result in the worker applying to the Board for a legal determination to this effect. If the employer is found to have breached the return to work duty, the Board may pay (out of the Accident Fund) the worker an amount equivalent to the compensation to which the worker was entitled under the temporary total or partial disability provisions. Further, such a finding may also result in an administrative penalty to the employer up to the maximum wage rate, which for 2022 is $108,400.

Penalties for Employer Suppression of Worker’s Injury Claims

The WCA Amendments will strengthen the existing prohibition against employers discouraging workers from reporting injuries. Most specifically, the changes would make it an offence for an employer or supervisor to “by agreement, threat, promise, inducement, persuasion or another other means, seek to discourage, impede or dissuade a worker from either making a claim or receiving compensation.” Breaches of this section could result in administrative penalties.

Creation of the Fair Practices Commissioner (FPC) to Address Unfair Conduct by WorkSafeBC

An FPC will be appointed to investigate complaints made by employers and workers regarding alleged unfairness in their dealings with WorkSafeBC, including any systemic issues raised by such complaints. The FPC will then be able to make recommendations to WorkSafeBC to resolve those complaints and prepare an annual report to the Board of Directors. We note that the FPC will not be empowered to comment or make recommendations on the merits of individual WorkSafeBC, Review Division, or Workers’ Compensation Appeal Tribunal (WCAT) decisions.

Other WCA Amendments include:

• Expanding access to Independent Health Professionals (IHP) for appeals at WCAT, by giving employers and workers the right to request an IHP to provide independent advice in the appeal. Currently, employers and workers are not able to request an IHP for appeals at WCAT.
• Requiring interest to be paid on compensation benefits that are owing to a worker for 180 or more days.
• Increasing the maximum compensation for non-traumatic hearing loss, which is currently capped at 15% of total disability when there is no loss of earnings.
• Indexing workers’ compensation benefits to the full rate of annual percentage changes in the Canadian Consumer Price Index.

Many of the WCA Amendments require additional funding. It is unclear at this point whether existing employer premiums are sufficient to fund all of these changes, or whether an increase will be necessary, resulting in an additional cost to employers.

Bill 41 is currently at first reading in the Legislative Assembly. We will continue to monitor this important legislation and provide updates as necessary.

If you would like more information about the WCA Amendments or insight on how it may affect your workplace, please contact Michelle Jones, Miny Atwal, or another member of Lawson Lundell’s Occupational Health and Safety Group.