As featured on Canadian HR Reporter

 

In November of 2022, the British Columbia legislature passed the Workers Compensation Amendment Act (No. 2), 2022, otherwise known as Bill 41. The changes outlined in Bill 41 take effect on January 1st, 2024, and in order to properly support the new legislation, WorkSafeBC is proposing several additions and changes to existing policy. This article will serve to examine the essential changes and explain how they will impact employers and workers.

The most notable additions are two new duties, obligatory for employers: the duty to cooperate, and the duty to maintain employment. While the former has been standard practice in return-to-work management for responsible employers, it will now also obligate workers to cooperate in finding suitable work to perform until their full recovery. The latter only applies to employers who employ 20 or more individuals, and codifies an employer’s responsibility to ensure an injured or ill worker remains employed and productive.

Duty to Cooperate

The duty to cooperate policy sets the expectation for all employers and workers that they must cooperate with each other, as well as WorkSafeBC, in order to facilitate a worker’s early and safe return to work. This is likely a very welcome change for many employers, as the participation of workers in return-to-work programs can be unreliable. By formalizing this duty in both legislation and policy, it equips employers with recourse in the event that a worker refuses or unreasonably delays return to work efforts.

An employer’s duty to cooperate includes:

• contacting the worker as soon as practicable after the worker is injured.
• maintaining communication with the worker.
• identifying suitable work for the worker that, if possible, restores the full wages the worker was earning at the worker’s pre-injury work.
• providing WorkSafeBC with information it requires in relation to the worker’s return to, or continuation of, work.

A worker’s duty to cooperate includes:

• contacting the employer as soon as practicable after the worker is injured.
• maintaining communication with the employer.
• on request of the employer, assisting the employer to identify suitable work that, if possible, restores the full wages the worker was earning at the worker’s pre-injury work.
• providing WorkSafeBC with information it requires in relation to the worker’s return to, or continuation of, work.

It is also noted that WorkSafeBC requires:

• the employer to cooperate with the worker and WorkSafeBC by, where reasonable, making available suitable work the employer has identified, and
• the worker to cooperate with WorkSafeBC by not unreasonably refusing suitable work when it has been made available by any employer.

That last point is key: unreasonably refusing suitable work made available by an employer – which all organizations should be prepared to offer – may lead to financial consequences for the worker. Refusal of what WorkSafeBC deems to be suitable work may lead to the reduction or suspension of their wage replacement benefits. WorkSafeBC will of course need to adjudicate on a case-by-case basis to determine if the refusal was reasonable or not, based on factors such as a detailed description of the available work as well as the worker’s functional abilities and medical restrictions. However, if it is determined that the worker has unreasonably refused suitable work made available to them, compensation payments may be reduced or suspended altogether until the worker complies with this policy.

Administrative penalties for employers who do not comply with the duty to cooperate are also outlined; that said, it is in the employer’s best interests generally speaking to be actively participating in the return-to-work process in order to mitigate claims costs, so penalties for responsible employers are unlikely.

Duty to Maintain Employment

While the duty to cooperate applies to all BC employers, the duty to maintain employment is only applicable to employers who regularly employ 20 or more workers, and only if the injured worker had been employed by the employer—on a part- or full-time basis—for a continuous period of at least 12 months prior to the date of injury. If those two conditions are met, the employer will be subject to the duty to maintain employment.

What this duty looks like is dependent on whether or not the worker is capable of performing the essential duties of their pre-injury work. Factors that are considered when defining “essential duties” include the proportion of time spent on each duty, the effect on the job outcome if a duty is removed, the current job description, whether a duty is critical to safety, and the normal productivity expected in the job (i.e., rate, range, or level or production or service expected for the job).

1. If a disabled worker is capable of carrying out the essential duties of their job – with or without an accommodation – the employer is obligated to offer one of two options:
   • Pre-injury work, with or without accommodations. If changes to the work and/or workplace (i.e., accommodations) would allow an employee to perform the essential duties of their pre-injury work, the employer is obligated to make those accommodations to the point of undue hardship.
   • Alternative work, with or without accommodations, that is comparable to the worker’s pre-injury work and wages. Alternative work must be comparable in wage and in other ways, including but not limited to: skills or experience required, degree of physical or mental effort required, level of responsibility or supervision, employee benefits, or working conditions.

2. If a disabled worker is not capable of carrying out the essential duties of their pre-injury work, but is capable of working in some capacity, the employer is required to offer the worker the first suitable work that becomes available. This requirement still stands if the first available work is only made suitable through accommodation; the employer will again be expected to make accommodations up to undue hardship. WorkSafeBC claims the right to review an organization’s recruitment activities (e.g., job postings, vacancies, or evidence of hiring or transfers) to ensure that injured workers are in fact being offered the first suitable work available.

Employers may not terminate a worker within six months of starting pre-injury, alternative, or suitable work, unless the employer is able to unequivocally convince WorkSafeBC that the termination was unrelated to the injury. How difficult this will be to prove is yet to be seen, so it is in an employer’s best interests to avoid this, if possible. Terminations within six months that WorkSafeBC deems to be related to a worker’s injury will be considered a failure to comply.

The penalties for failure to comply range from administrative penalties alone, to payment equivalent to what the worker would have received as temporary wage loss payments for up to a year.

The obligations under this policy do have an end date, however. On the second anniversary of worker’s injury date, if a worker has not yet returned to work in any capacity, employers are no longer obligated to offer any kind of employment. If a worker has already returned to suitable work, the employer’s obligation to offer the worker’s pre-injury work (or alternative work) also ends on the second anniversary.

Penalties for Failure to Comply with Duty to Cooperate and the Duty to Maintain Employment

Administrative penalties may be charged to employers who fail either their duty to cooperate or their duty to maintain employment. The maximum amount of this penalty is equivalent to the maximum wage rate for the year. Maximum wage rate is determined annually by WorkSafeBC and is based largely on the average wages and salaries of BC employees. For reference, the maximum wage rate for 2023 is $112,800, meaning these fines can be quite significant.

Whether or not a penalty is imposed and the amount of the penalty is decided on a case-by-case basis, and at the discretion of WorkSafeBC. Policy states that an employer will be issued a warning and given a reasonable opportunity to correct the noncompliance, prior to any financial disincentive.

Administrative penalties imposed by WorkSafeBC are subject to review and appeal. Employers are permitted to disagree with WorkSafeBC’s decisions and submit a request for review or an appeal. Should WorkSafeBC subsequently decide in the employer’s favour and either reduce or reverse the penalty, the employer is owed a refund plus interest—that is an important addition to the new legislation introduced in Bill 41.

Closing

While the legislative changes introduced in Bill 41 are certainly important, these additions largely solidify what many employers were already practicing. In our experience as a disability management consultant, we know that employers are not looking to ignore workers who are off work, delay return to work efforts, or refuse cooperation in any way – quite the opposite. It is heartening to know that there is now a legal obligation on the injured worker to actively participate in their own occupational rehabilitation, with incentive to accept suitable work offers. The duty to maintain employment also echoes what was already recommended best practice. The introduction of a finite timeline of two years is surely a welcome relief to those employers who have made all efforts to return an off-work employee to their regular duties for several years.

We look forward to seeing how WorkSafeBC’s consideration of feedback provided by TeksMed and numerous other interested parties impacts the final published policy. If there are any significant changes to the policy as it currently exists, rest assured that TeksMed will be here to help employers understand the impact to their success.