Proposed amendments to B.C. Workers Compensation Act would impose statutory accommodation on employers, among other return to work obligations

On October 31, 2022, Bill 41 - the Workers Compensation Amendment Act (No. 2), 2022 (“Bill 41”) received its first reading in the British Columbia legislature. Bill 41 introduces an obligation on employers to accommodate workers receiving WorkSafeBC payments to the point of undue hardship and to reintegrate them into the workplace. 

The duty to accommodate is not new; employers are already required to accommodate employees with disabilities to the point of undue hardship under the British Columbia Human Rights Code. However, the Bill 41 amendments are broader than human rights as not all WorkSafeBC claims are human rights protected disabilities. For example, a broken arm that will heal in a few weeks or months is not a disability for human rights purposes, but would be protected if the arm break was work related and covered by WorkSafeBC.

The proposed amendments also impose active obligations on employers to reintegrate employees who experience workplace injuries (including occupational diseases and mental disorders) and provide new avenues of recourse for employees who believe that the employer has failed in these obligations. And the Bill imposes a duty to facilitate that reintegration on the employee.

The proposed amendments would establish a tripartite cooperative accommodation process. An employer’s obligations under that process include working with WorkSafeBC and the worker to:

• contact the worker as soon as practicable after the worker is injured and maintain communication with the worker;
• identify suitable work for the worker that, if possible, restores the full wages the worker was earning before the injury;
• provide WorkSafeBC with information WorkSafeBC requires in relation to the worker’s return to, or continuation of, work; and
• do any other thing required by WorkSafeBC.

A worker who believes that the employer has not complied with its obligations may complain to WorkSafeBC (as may an employer who believes that an employee is not cooperating). Where the dispute cannot be resolved, WorkSafeBC must make a decision within 60 days (or such longer period as it may determine).

The proposed amendments also require proscribed employers and employers who regularly employ 20 or more workers to maintain the employment of certain classes of employees:

• workers who have been employed on a full-time or part-time basis for a continuous period of at least 12 months before the date of injury;
• workers who are not workers only because they have been deemed as such under the Workers Compensation Act; and
• workers who have returned to work within two years of the date of injury or who are carrying out suitable work within two years of the date of injury.

The obligation to maintain employment includes:

• Where an injured worker is able to fulfil the elements of their pre-injury position, employers will be required to either offer the worker their pre-injury position or a comparable position for a comparable wage.
• Where an injured worker is unable to fulfil essential elements of their pre-injury position, employers will be required to offer the worker the first suitable work that becomes available.

If the employer and worker disagree on the return to work, WorkSafeBC must determine whether the worker is fit to carry out suitable work or the essential duties of the worker’s pre-injury work, and whether suitable work is available.

If an employer terminates a worker’s employment within six months of the worker’s return to suitable work, the essential duties of the worker’s pre-injury work, or alternative work, the employer is deemed to have not complied with its obligations unless the employer can demonstrate that the termination was not related to the workers’ injury.

An employer who fails to comply with the proposed amendments may be subject to administrative penalties; a worker who fails to cooperate may be temporarily denied benefits or have their benefits reduced.

Other proposed amendments include establishing a Fair Practices Commissioner, expanding workers’ access to Independent Health Professionals during appeal proceedings, requiring that interest be paid on delayed workers’ benefits, preventing claim suppression, indexing benefits to the consumer price index, and increasing the maximum compensation for non-traumatic hearing loss.

The provincial government’s press release may be accessed here. The first reading of Bill 41 may be accessed here.

The second reading of Bill 41 occurred on November 1, 2022 and the text of the proposed legislation is not yet final. Readers are encouraged to continue to check-in for updates.

For further information please, contact any of the members of the DLA Piper Canadian Employment and Labour Law Service Group listed here.