On October 31, 2022, the BC government completed the first reading of Bill 41 – 2022: Workers Compensation Amendment Act (No. 2), 2022 (“Bill 41”), which contains further amendments to BC’s Workers Compensation Act (the “WCA”). If enacted, Bill 41 will impose an obligation on employers to accommodate and re-employ injured workers up to a point of undue hardship. Bill 41 also requires employers and workers to cooperate with each other, and with WorkSafeBC (the “Board”), in furtherance of a plan to return the worker to work.
If passed into law as presently drafted, Bill 41 will have significant administrative, cost and labour relations implications for employers. It will also give employees/workers the option of filing a claim with the Board or a complaint with the Human Rights Tribunal (or possibly both) in connection with termination and accommodation issues relating to a work-related illness or injury.
Duty to Cooperate for Both Workers and Employers.
Bill 41 imposes on employers the duty to facilitate the reintegration into the workplace of a worker who has experienced workplace injuries, and imposes a corresponding obligation on the injured worker to facilitate their integration in the workplace.
The reciprocal duties to cooperate between the employer and the worker include:
- contacting each other as soon as practicable after the injury and maintaining communication;
- identifying suitable work for the worker that, if possible, restores the full wages the worker was earning pre-injury;
- informing the Board of the worker’s return to or continuation of work; and
- responding to any requests of the Board.
The foregoing duties are not required if doing so would likely imperil or delay the worker’s recovery.
Both the employer and the worker can lodge complaints against the other to the Board for failure to cooperate. If the parties cannot come to a resolution on their own, the Board must make a decision on the matter within 60 days.
Duty to Maintain Employment
Under the proposed amendments, most workers who have been employed by the employer for at least 12 continuous months, and who have been unable to work as a result of a work-related accident, will be entitled to reinstatement. This obligation to maintain employment does not apply to employers who regularly employ fewer than 20 workers.
This obligation is in addition to any obligations under BC’s Employment Standards Act or Human Rights Code, under the common law, or pursuant to any collective agreement or contract of employment.
The obligation to maintain employment includes:
- Where a worker is “fit to work”, but cannot carry out the essential duties of their pre-injury work, the employer must offer the worker the “first suitable work that becomes available.”
- Where a worker is fit to carry out the essential duties of their pre-injury work, the employer must either (a) offer the same pre-injury work to the worker, or (b) offer 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.”
If the employer and worker disagree on the return to work, the Board will determine whether the worker is fit to carry out suitable work or the essential duties of the worker’s pre-injury position, and whether the employer has suitable work available.
Further, Bill 41 imposes an obligation on employers to make any change to the work or the workplace that is necessary to accommodate the worker, up to a point of undue hardship.
Whether or not accommodating an injured worker amounts to undue hardship is a complex issue and requires a detailed analysis of the specific circumstances. An employer that claims undue hardship must demonstrate to the Board, with supporting evidence, that accommodation would result in undue hardship. Depending on the circumstances, this obligation may include a description of physical requirements, evidence of the financial impact on the business or evidence of the disruption of operations.
The employer’s obligation to maintain the worker’s employment ends two years after the date the worker is injured if: (1) the worker has not returned to work by that date; or (2) the worker is carrying out suitable work.
If an employer terminates a worker’s employment within 6 months of the worker returning to work, the Board will presume that the employer breached their obligation to maintain employment. However, employers are not prevented from terminating, laying off or suspending the worker if the employer satisfies the Board that the decision to do so was completely unrelated to the worker’s injury. For example:
- the decision to terminate occurred prior to the injury;
- the termination was part of a broader workforce downsizing;
- part or all of a business is suspended or discontinued; or
- the decision to terminate was a result of the worker’s misconduct unrelated to the worker’s accident.
Employers should keep accurate and detailed records of their decision to terminate a worker and ensure policies and procedures are applied consistently.
Conflict with Collective Agreement
Bill 41 provides that if the WCA provisions with respect to the duty to cooperate and the duty to maintain employment conflict with a term of a collective agreement that is binding on an employer in relation to a worker, then the conflicting section of the WCA will prevail over the collective agreement to the extent that it affords the worker a greater benefit than the term of the collective agreement. However, this will not operate to displace a term of the collective agreement that deals with seniority.
Penalties for Suppression of Injury Claims by Employer
Bill 41 also contains explicit provisions prohibiting employers from deterring workers from reporting injuries or filing a claim for compensation. These changes make it an offence for an employer or supervisor to threaten, promise, induce, persuade, or use any other means to seek to discourage, impede or dissuade a worker from making a claim or receiving compensation.
Significant Administrative Penalties for Employers
An employer who is found in breach of the WCA provisions with respect to the duty to cooperate and the duty to maintain employment could be subject to significant administrative penalties. If WorkSafeBC is satisfied on a balance of probabilities that the employer has failed to comply with a provision regarding the duty to cooperate or maintain employment, Bill 41 provides the Board with the power to issue an administrative penalty against the employer up to the maximum wage rate determined by the Board under section 209 of the WCA for the calendar year. The current maximum wage rate for 2022 is $108,400.00.
Creation of Fair Practices Commissioner
In addition, Bill 41 establishes a Fair Practices Commissioner who will be appointed to investigate complaints made by employers or workers of alleged unfairness in their dealings with the Board. The Commissioner would make recommendations to the Board on how to resolve these complaints and would organize an annual report for the Board.
Other WCA Amendments
Some of the other potential amendments contained in Bill 41 are:
- Fully indexing workers’ compensation benefits to the Canadian Consumer Price Index;
- Requiring that workers who are owed compensation benefits for 180 or more days be paid interest on the outstanding compensation;
- Giving employers and workers the right to request an Independent Health Professional to provide independent advice in a WCAT appeal (currently, employers and workers cannot make such requests at WCAT appeals);
- Increasing the maximum compensation for non-traumatic hearing loss (it is currently capped at 15% of total disability when there is no associated loss of earnings).
Many of the WCA amendments will result in increased claims and benefits costs. It is not clear whether existing employer premiums are sufficient to fund all of the proposed, or whether the Board will increase employer premiums. Given current inflation, however, it seems likely that workers compensation premiums will rise.
Bill 41 is currently at second reading before the Legislative Assembly of BC, and the text of the proposed legislation is not yet final. We will continue to monitor the progress of Bill 41 and will provide updates as necessary.