New Obligations under the Workers Compensation Act

January 1, 2024 brought changes to the Workers Compensation Act (the “Act”) including a duty to cooperate and a duty to maintain employment.  These changes impose new return to work requirements on both employers and employees following an injury with the aim to better support workers to return to the job or other suitable employment following injury.  The duty to cooperate applies to any injury that occurs after January 1, 2022.  The duty to maintain employment applies to employers that regularly employ at least 20 workers  but only in relation to those workers who were employed full or part time for at least 12 continuous months prior to their date of injury.  The duty to maintain employment may involve returning the worker to their pre-injury work, providing alternative work, or providing suitable work and includes making changes to the work or workplace necessary to accommodate the worker, to the point of undue hardship.  The duty to maintain employment extends to two years after the worker was injured.   At the end of the two year period:

• 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; or
• if the worker has returned to work and is carrying out pre-injury work, alternative work, or suitable work, the obligation to make changes to the work and workplace necessary to accommodate the worker’s injury is ongoing. 

The duty to cooperate is a new requirement on both employers and employees to cooperate with each other and with WorkSafeBC to ensure that the worker can return to their pre-injury job, a comparable job or, where the worker is not fit to do their pre-injury duties, to other suitable work.  The reciprocal duties imposed on the worker and the employer 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 workers return to or continuation of work; and
• responding to any requests of the Board.

Both the employer and the worker can complain to WorkSafe about a failure on the part of the other to cooperate.  If WorkSafe finds that the employer has not complied with their duty to cooperate they will have to pay an administrative penalty.  If the worker doesn’t cooperate in the return to work process or has unreasonably refused an offer of suitable work, their wage loss benefits may be reduced or suspended.

The duty to maintain employment if applicable to the worker and the workplace requires the employer to offer the worker either their pre-injury work or comparable work when they are fit to return to work.   This duty includes a requirement on the employer to make changes to the work or workplace necessary to accommodate the worker to the point of undue hardship.  This is not a new requirement as under human rights legislation employer’s have a duty to accommodate an employee’s disability.  However the inclusion of this obligation in the Act means that any failure to comply by an employer can be dealt with through the enforcement and penalty provisions of the Act as well as the Human Rights Code.  If the worker is not fit to return to their pre-injury job but is otherwise fit to return to work in another capacity, the employer is required to offer the first suitable work that becomes available.

The duty to maintain employment also contains provisions relating to termination of an employee that has been injured. If an employer terminates a worker’s employment within 6 months of the worker returning to work following injury, the presumption under the Act is now that the employer breached their obligation to maintain employment.  The onus is then on the employer to satisfy the Board that the decision to terminate was completely unrelated to the worker’s injury.  Factors that may be taken into consideration in this analysis could include:

• that the decision to terminate occurred prior to the injury,
• that the termination was part of a broader workforce downsizing,
• that part or all of the business is suspended or discontinued; or
• that the decision to terminate was a result of the worker’s misconduct unrelated to the worker’s accident.

For employers, these changes and the requirements imposed on them as a result of the changes are significant and significantly enhanced from previous requirements. Employers should be updating their policies and procedures with respect to injured workers to ensure that they are complying with the changes. Any decision to terminate an injured worker after they have returned to work should be made carefully with evidence supporting that the termination was completely unrelated to the worker’s injury retained.