On June 9, 2023, the Province of British Columbia published Order in Council No. 342, bringing into effect certain provisions of Bill 41, Workers Compensation Amendment Act (No. 2) (the Act) that were not yet in force.
These new requirements come into effect as of Jan. 1, 2024.
B.C. employers and employees returning from work-related injuries will need to comply with the new return-to-work requirements imposed by the Act.
What are the new requirements?
The duty to cooperate
All B.C. employers and injured employees will have a reciprocal legal duty to cooperate with each other and WorkSafeBC to facilitate the injured employee's timely and safe return to work. Once they are fit to carry out the essential duties of their pre-injury work, employees are entitled to return to their pre-injury job, a comparable job, or, where the employee is not fit to perform their pre-injury work duties, to other suitable work.
Both the employer and the injured employee are required to:
- Open a line of communication with the other party as soon as practicable following the occurrence of the injury and maintain communication.
- Identify suitable work for the returning employee.
- Provide WorkSafeBC with information required to facilitate the employee's return.
- Perform any other related tasks WorkSafeBC may require.
The WorkSafeBC discussion paper published July 2023 provides that employers must, where reasonable, make suitable work available to the returning employee.
Correspondingly, the employee must not unreasonably refuse suitable work made available by the employer, or any employer. If the employee unreasonably refuses suitable work, then WorkSafeBC will reduce their compensation by the amount they could have earned had they accepted the offer of work.
The duty to maintain employment
Employers must maintain the employment of employees who suffer a workplace injury.
Employer obligations related to this duty end on the second anniversary of the date of injury if the employee has not returned to work by that date, or the employee is carrying out suitable work. If an employer terminates employment within six months after the returning employee begins to carry out suitable work, the employer will be deemed to have failed to comply with their duty, unless the employer can demonstrate that the termination was unrelated to the employee's injury.
Importantly, and in accordance with the human rights regime, employers must, to the point of undue hardship, make any changes to the work or workplace necessary to accommodate the employee and maintain their employment.
This requirement only applies to employers with 20 or more employees who have employed the injured employee on a full-time basis for at least one year prior to the employee's sustained injury.
Enforcement mechanism
The Act empowers WorkSafeBC to impose administrative penalties on employers who fail to comply with their return-to-work obligations. Fines for a failure to comply with the duty to cooperate can reach $116,700 subject to WorkSafeBC annual updates.
Retroactive claims
Employer obligations will extend to injuries that predate January 1, 2024.
The duty to cooperate will apply to claims concerning injuries that date back two years before January 1, 2024.
The duty to maintain employment will apply to claims concerning injuries that date back up to six months before January 1, 2024.
Takeaways for employers
Although many employers are already engaged in effective return-to-work practices, the Act formalizes these obligations and dictates the manner in which work-related injuries will be addressed. In addition, the Act provides employees with an additional means to forward claims and complaints against employers in respect to work-place accommodation issues.
Employers should proactively:
- Develop and draft internal policies that set out employer and employee responsibilities within a clear return-to-work framework.
- Review and assess potential claims of current and terminated employees injured in the course of employment after January 1, 2022 in considering compliance with the duty to cooperate, and July 1, 2023 in considering compliance with the duty to maintain employment.
- Recognize that compliance with these statutory duties does not supplant an employer's duty to accommodate under the British Columbia Human Rights Code, or obligations set out in collective agreements for unionized workplaces.
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