Return-to-work policies in B.C. enforce duty to cooperate and duty to maintain employment
The final two amendments of B.C.’s 2022 Workers Compensation Amendment Act came into effect January 1, adding duty to cooperate and duty to maintain employment legal requirements for most employers in B.C.
WorkSafeBC released policy changes in November that outlined how the new framework of the Act will be interpreted and enforced, and employment lawyers are advising employers to pay attention; the legislation brings the province in line with several other jurisdictions in Canada, but with consequences that are more stringent than in other provinces, said Vancouver Lawson Lundell attorneys Michelle Jones and Miny Atwal.
“WorkSafeBC, as opposed to some other provincial regulators, is very active,and it has some pretty stiff penalties for employers that don't meet its prevention and workers’ compensation requirements,” Jones said, emphasizing that WorkSafeBC has added staff dedicated to enforcing the latest policies.
“I envision that the enforcement on this will be quite strong, once there's been a transition period, to get employers and workers familiar with the provisions.”
A major piece of the new duty to maintain employment, Atwal pointed out, is the prohibition of terminating an employee for six months following their return to work after an injury has kept them home.
If such an employee is terminated and a complaint is filed, WorkSafeBC will presume the employer failed in its duty to maintain employment, she explained. The employer will then be required to prove the termination was in no way related to the injury.
“You've got to rebut that presumption, as an employer,” said Atwal. “It doesn't take much for the worker to turn to WorkSafeBC and simply say, ‘I was fired before the six-month deadline,’ and that starts the whole process, where now it is up to the employer to defend why that person was terminated and to show how it is unrelated to the injury … if they can't prove it, they're the ones that are going to face the consequences.”
The duty to maintain employment applies to employers who regularly employ more than 20 employees, and to employees who have been continuously employed by the employer for at least 12 months before the injury.
Further, WorkSafeBC has outlined the duty to maintain employment as including a requirement by law for employers of 20 or more to offer an injured employee “the first suitable work” once they are deemed fit to work but not to perform the essential duties of their pre-injury work.
When a worker is deemed fit to perform their pre-injury work, the employer must offer them either the pre-injury work or work “of a kind and at wages that are comparable to the worker’s pre-injury work and wages from that work”, the policies state.
Plus, as is also required in the B.C. Human Rights Code, duty to maintain employment also means making any changes required to the work or workplace of an injured worker, to the point of undue hardship. Duty to maintain employment applies to claims filed up to six months before the January 1, 2024 effective date.
The duty to cooperate applies to all employers and workers in B.C., making it law for both parties to make appropriate efforts to maintain communication throughout the injured employee’s leave from work.
It will also be the most demanding on HR professionals, Jones pointed out.
“If you've got 10 workers of your 100 off, and they're all off on workplace injuries, you've got to be communicating with all 10 of those regularly, and you've got to maintain that communication throughout the period when they're off work,” she said. “The degree of communication and the issues you're going to be talking about may change as they get closer to returning to work, but that maintenance is something that has to be managed internally.”
Crucial for HR to understand, Jones said, is that the duty to cooperate may be triggered for employees who have been off due to workplace injuries as far back as January 1, 2022 and are still receiving wage loss benefits on or after January 1, 2024.
“The first thing as an employer you probably want to do when you get back to the office this week or next, is inventory your workers that are off work currently in B.C. on workplace injuries, because your duty to cooperate with those workers applies now,” she said. “Then reach out to those workers. Be proactive in communicating with them.”
The duty to cooperate requires employers to contact an injured worker as soon as is practicable after the injury occurred, and to maintain that communication throughout their absence, with the intent of reducing a “lag” in return-to-work that has previously existed in the province, said Jones.
“[It’s] to avoid situations where for weeks or months on end there's no communication between the worker and the employer, and then all of a sudden you're on the eve of a potential return to work, and that's when you start talking,” she explained.
“The thought is, if we make people communicate earlier than when the worker is able to come back to work, hopefully the employer and the worker will have been in communication and already decided what suitable duties are, the person can get back there and can do those suitable duties and then the employer can go back to paying the worker directly.”
