On November 1, 2022, the Workers Compensation Amendment Act (No. 2), or Bill 41, passed second reading in the British Columbia legislature. If enacted, Bill 41 would make a number of important changes to the Workers Compensation Act (the “Act”) that would increase employers’ obligations to injured workers.
Duty to Accommodate and Return Injured Workers to Work
If passed, Bill 41 would create a new employer duty to return injured workers back to their pre-injury work or otherwise provide alternative work, as well as accommodate injured workers with any necessary changes to their work or the workplace up to the point of undue hardship.
These duties would apply only to employers with 20 or more workers, and in respect of workers with at least 12 months of continuous service before their injury. It should be further noted that these duties would expire 2 years after the date of injury if the worker has not returned to work or if the worker is carrying out suitable work.
This new duty to accommodate would be separate from the existing accommodation duty under the Human Rights Code.
If an employer terminates the returned worker within 6 months of their return, the legislation deems the employer to have breached its duties under the Act unless the employer can demonstrate that the termination was unrelated to the worker’s injury. If the employer breaches the duty to maintain employment, WorkSafeBC may provide the worker with an amount equivalent to one year’s compensation under the temporary total or partial disability provisions of the Act.
In addition, Bill 41 would establish a mutual duty to cooperate by both the employer and worker. Specifically, they will need to establish and maintain communication as soon as practicable after the injury occurs, identify suitable work for the worker that, if possible, restore their pre-injury wages; and apprise WorkSafeBC of the worker’s return to work or continuation of work. Either party may request that WorkSafeBC investigate a failure to cooperate, and WorkSafeBC may impose remedies, including reducing or suspending payments of compensation to the worker until they comply with their obligations.
Prohibition on Wage Suppression, New WorkSafeBC Penalty Authority
Bill 41 also aims to crack down on claim suppression. The amendments include a new provision expressly prohibiting employers from discouraging or persuading workers from submitting compensation claims or receiving compensation under the Act. Employers suppressing claims may face investigation and penalties for doing so. The Act currently prohibits employers from discouraging workers from reporting injuries to WorkSafeBC and any agreement to waive or forego benefits under the compensation provisions of the Act are void.
To further strengthen WorkSafeBC’s enforcement capabilities, Bill 41 would permit WorkSafeBC to impose administrative penalties for breaches of the employer’s duty to cooperate and maintain employment.
Changes to the Inflation Adjustments for Periodic Payments
Bill 41 also indexes periodic payments to inflation. Currently, the Act calculates the annual adjustment by referring to the Consumer Price Index (“CPI”) and subtracting 1%. It does not allow an adjustment above 4%. Bill 41 would remove the 1% subtracting rule. Instead, under the proposed framework, periodic payments will adjust at the same rate as inflation (as measured by the CPI), up to 4%. Further, WorkSafeBC would have authority to increase the percentage above 4%, to match a higher inflation rate.
Other Proposed Changes
Bill 41 would also require interest payments for outstanding benefits owed to a worker for over 180 days, pursuant to a review or appeal decision.
It would also create an independent office of the Fair Practices Commissioner. Its mandate will be to investigate complaints of unfair dealings with WorkSafeBC, and to recommend changes and improvements to WorkSafeBC.
Finally, Bill 41 gives employers and workers the option to request an independent medical opinion as part of the appeals process to the Workers Compensation Appeal Tribunal. Either the employer or worker can request that the Tribunal obtain an independent medical opinion.
The new provisions, if enacted, would increase employers’ obligations under the workers’ compensation system. We will blog further updates on Bill 41 as they arise.