By Melanie Samuels, Sharla Johnson and Lisa Andersen | Singleton Urquhart Reynolds Vogel LLP
In 2022, the BC legislature introduced Bill 41 which set out a host of amendments to the Workers Compensation Act, RSBC 2019 c.1. The final group of these amendments, dealing with return-to-work obligations, came into force on January 1, 2024 and are touted by the provincial government and WorkSafeBC as encouraging the speedy, safe, and supported return to work of employees injured on the job. The aim of these amendments is to minimize the disruptive impact of workplace injuries on both employers and workers.
These amendments create two separate obligations: (1) the duty to cooperate[1] and (2) the duty to maintain employment[2]. The former applies to both employers and workers while the latter applies primarily to employers.
The Duty to Cooperate
The duty to cooperate imposes obligations on employers and workers to work with each other and WorkSafeBC to ensure a timely and safe return to work following injury. It focuses on maintaining open lines of communication.
Employer obligations include:
- Contacting the worker as soon as practicable following injury;
- Maintaining communication with the worker throughout the injury period, as appropriate in the circumstances;
- Identifying suitable work for the worker that restores their full wages, if possible;
- Providing WorkSafeBC with required information regarding the worker’s return to, or continuation of work; and
- Cooperating in the return-to-work process.
Similarly, injured workers are obligated to contact their employer following injury, maintain communication, and work with their employer to identify suitable work. The duty to cooperate also imposes a further obligation on workers to not unreasonably refuse to accept suitable work.
Where a dispute arises between an employer and worker regarding the worker’s return, an application can be made to WorkSafeBC who will make a determination within 60 days. WorkSafeBC also has discretion to suspend a worker’s compensation payments until they comply with the process.
The duty to cooperate applies to claims with injury dates on or after January 1, 2022.
The Duty to Maintain Employment
The duty to maintain employment applies primarily to employers with 20 or more workers.
Where a worker has been continuously employed (full or part-time) with an employer for at least 12 months prior to injury and that worker becomes disabled from earning full wages at their pre-injury work due to a workplace injury, the employer is obligated to maintain the employment of the injured worker.
The nature and scope of the duty to maintain employment depends on the circumstances:
- Where a worker is fit to carry out the essential duties of their work, with or without accommodation, an employer must offer the worker their pre-injury work or an alternative that is comparable in duties and earnings.
- Where a worker is not fit to carry out the essential duties of their pre-injury work, but is able to work in some capacity, an employer must offer the worker the first suitable work that becomes available.
Further, an employer who is subject to the duty to maintain employment must make any changes to the work or workplace that are necessary to accommodate a worker, to the extent that they do not cause undue hardship.
Where it is unclear or a dispute arises as to the employer’s obligations to maintain employment, WorkSafeBC will provide guidance and collaborate with the parties to identify possible solutions.
The duty to maintain employment applies to claims with injury dates on or after July 1, 2023 and continues until the second anniversary of the date of injury. At that time, if the worker has not returned to work, the employer’s obligations end. If the worker has returned to work and is carrying out suitable work, the employer’s obligation to offer pre-injury or alternative work ends. However, the obligation to accommodate the worker’s injury is ongoing.
Finally, an employer who terminates the employment of a worker who has returned to pre-injury work, suitable work, or alternative work for less than six months will be deemed to have failed their duty to maintain employment, unless the employer can establish that the termination was unrelated to the injury.
Failure to Comply
Where WorkSafeBC determines that an employer has failed to comply with their duty to cooperate and/or maintain employment, the employer may be subject to one or more administrative penalties.
Employers who feel that a worker is not meeting their duty to cooperate should contact WorkSafeBC. WorkSafe BC will then work with all parties to clarify obligations. If WorkSafeBC determines that a worker has unreasonably refused an offer of suitable work, their wage loss benefits may be reduced or suspended.
Unionized Employees and Fixed-Term Contracts
Unions should take note that the duty to maintain employment will override collective agreement terms (with the exception of terms regarding seniority) where the legislated duty provides greater benefit to the worker than the collective bargaining agreement. Unionized employers should review their collective bargaining agreements to determine whether the duty to maintain employment will override any agreement terms.
The duty to maintain employment is not intended to extend to fixed-term contracts. However, where a fixed-term employment arrangement has been repeatedly renewed over an extended period of time, WorkSafeBC may find that the duty to maintain employment extends beyond the fixed term. Employers should contact WorkSafeBC to determine their obligations regarding any specific instance of renewed fixed-term contracts.
Take Aways
The duty to cooperate and duty to maintain employment are intended to encourage a smooth and safe transition from injury back to work. At this stage, WorkSafeBC has communicated their desire to work with employers and workers to fulfill their obligations under the new amendments rather than seeking to penalize those who do not comply.
Employers should review their internal policies with respect to workplace injuries to ensure that proper three-way communication (employer-worker-WorkSafeBC) is in place. Further, on report of a workplace injury, employers should turn their mind to the necessity of maintaining the worker’s job, including identifying suitable alternate work and accommodations. Managers should also be trained on the new obligations and resulting internal policies.
Our Workplace Group lawyers would be happy to help you navigate the new return-to-work duties, review and revise your policies, and train your staff. For more information, visit https://www.singleton.com/
[1] Section 154.2.
[2] Section 154.3.
