Labour and Employment Law Blog

As we previously reported, the B.C. Government amended the Workers Compensation Act (the “WCA Amendments”) to impose new obligations on B.C. employers in returning injured workers to their job. These changes will come into effect on January 1, 2024.

As you may recall from our earlier blog post, the WCA Amendments create two new duties for workers and employers: the duty to cooperate and the duty to maintain employment of an injured worker.

WorkSafeBC has since released a discussion paper with proposed policies to provide guidance on the new statutory duties (the “Draft Policies”). We provide a refresher on these new duties and highlight the notable items from the Draft Policies below.

Duty to Cooperate

The duty to cooperate, which will apply to all workers and employers in B.C., creates a reciprocal duty for employers and workers to cooperate with each other during the return-to-work process. This duty will apply in relation to workers who sustained an injury no more than two years before January 1, 2024. Thus, workers who sustained an injury on January 1, 2022 or later and have not returned to work by January 1, 2024 will, along with their employer, be subject to the duty to cooperate.

The duty to cooperate includes a requirement to:

• Contact the other and maintaining communication;
• Identify suitable work for the worker;
• Provide WorkSafeBC with information required to support return to work efforts; and
• Do any other thing required by WorkSafeBC.

The Draft Policies create an additional obligation on an employer to, where reasonable, make suitable work available to the worker. The worker then has a corresponding obligation to not unreasonably refuse suitable work when it has been made available by any employer. If the worker unreasonably refuses suitable work, then WorkSafeBC will reduce their compensation by the amount they could have earned had they accepted the offer of work.

Duty to Maintain Employment

You may also recall that under the WCA Amendments, some employers will have a duty to maintain the employment of an injured worker in the following scenarios:

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.”

The WCA Amendments also require employers to make any changes necessary to the work or workplace, to accommodate an injured worker, to the point of undue hardship.

This duty will apply only to B.C. employers who regularly employ 20 or more workers and where the worker has been continuously employed with the employer for at least 12 months.

Notably, the duty to maintain employment will apply in relation to a worker who sustained an injury no more than six months before January 1, 2024. Therefore, for some employers, the duty to maintain employment may be triggered in respect of some of their workers immediately on the coming into force of the WCA Amendments on January 1, 2024. For example, if a worker sustained a workplace injury on or after July 1, 2023 and remains off work as of January 1, 2024, the employer’s duty to maintain employment will be triggered in respect of that worker.

The Draft Policies propose the following definitions for several key terms related to duty to maintain employment:

• Suitable work: Work that is safe, productive and consistent with the worker’s functional abilities and skills.
• Alternative work: A job that is different from, but comparable to, the worker’s pre-injury work and wages from that work.
• Accommodation: The process of changing the work and/or the workplace to be consistent with the worker’s functional abilities.
• Undue hardship: The point at which it is too difficult, unsafe, or expensive for the employer to accommodate the worker, which is determined based on the relevant facts and circumstances of each case.

The Draft Policies elaborate on the interpretation of the above terms and provide additional guidance on other key terms.

Penalties

The Draft Policies create two different methods for calculating administrative penalties for employers that fail to comply with their statutory duties:

• For the duty to cooperate, the penalty amount will generally be equal to the cost of wage-loss or similar benefits being paid to the worker.
• For the duty to maintain employment, the penalty amount will generally be the greater of the worker’s average net earnings for the 12-month period before the date of the injury, or an amount equal to 50% of the maximum wage rate, as set out in the Workers Compensation Act.

The Draft Policies also stipulate that before issuing any penalties, WorkSafeBC will contact the employer and discuss the reasons why they are failing to comply with their statutory duties and allow the employer to take steps to comply before issuing an administrative penalty.

Feedback

Employers can provide feedback on the Draft Policies by September 1, 2023. Lawson Lundell can assist employers in providing submissions to WorkSafeBC regarding any concerns arising from the Draft Policies.

Implications of the Proposed Policies

While the WCA Amendments and Draft Policies propose several procedural expectations on how employers should fulfill the duties, they appear to lack clear guidance on how employers must implement them. For example, the duty to cooperate provisions require that the employer and worker maintain communication with one another, but the Draft Policies appear to leave it up to the parties to decide who is responsible for initiating these communications, and how often they should be occurring in a given circumstance. As a result, there is room for confusion and differing views on these issues.

In light of these upcoming changes, employers are encouraged to be proactive and begin developing internal policies to set clear expectations and requirements between themselves and workers during the return-to-work process. Lawson Lundell is available to assist in drafting and providing guidance on such policies to ensure that they are in line with the WCA Amendments.

If you have any questions about the WCA Amendments or how they may affect your workplace, please contact Michelle Jones, Miny Atwal, or another member of Lawson Lundell’s Occupational Health and Safety Group.