A year ago, we wrote about new proposed changes to the Workers Compensation Act. Those new WorkSafe-related obligations are now coming into force January 1, 2024. The overall purpose of the amendments is to deter employers who try to persuade or prevent injured workers from filing claims and to codify and extend employer obligations to injured workers to maintain their employment and get them back to work.
No Discouraging Claims
With employers facing potentially higher future WorkSafe rates if employees make a successful WorkSafe benefits claim, some are tempted to discourage injured workers from filing a claim for lesser injuries, sometimes by hinting it may negatively affect the employee’s career. While such behaviour has long been viewed as illegal, the remedy was not clear. This amendment clearly bans employers from discouraging the filing of a claim or any kind of retaliation for doing so (also known as ‘claim suppression’). Employers violating this rule against claim suppression will be subject to general penalties under the Act, which at the moment could be up to $831,099.51, and/or imprisonment.
Duties to Injured Workers Clarified
Employers and employees now have a joint duty to cooperate in facilitating accommodation of an injured worker to return to work. The employee’s duty is subject to an exception where contact with the employer might harm their recovery. This codifies existing obligations under both WorkSafe legislation and policy and the Human Rights Code, which requires “reasonable accommodation” of most injured employees on the ground they are, at least temporarily, “disabled”. We note that this new obligation applies only to workers who are injured in the course of their duties (i.e. where WorkSafe applied), whereas Human Rights obligations apply to all workers whether or not they are disabled as a result of work.
Under the new change to WorkSafe policy, an employer must make available work to an injured worker able to return to work as follows:
- If the employee can perform the “essential duties” of the pre-injury role, they must be reinstated with appropriate accommodations or placed in a comparable job (i.e. similar work duties, schedule, same or better pay etc.);
- If the employee cannot perform the “essential duties” of their old job, they must be offered “suitable employment” i.e. work which is available and needs doing, for which the employee is qualified and which the employee can perform. It is likely the work cannot be completely different from the pre-injury work e.g. an accountant asked to do janitorial work.
In unionized workplaces, this obligation cannot trump seniority rights. Thus if more attractive jobs must be awarded to the applicant with the most seniority under the collective agreement, an opening for such a job cannot be awarded to an injured worker to allow them to return to work over a non-injured worker with more seniority. The obligation to provide “suitable work” is ongoing so that if none is initially available but later a job with suitable work comes open or suitable work becomes temporarily available due to illness or leave of another employee, the duty to offer it is triggered,
One of the most common forms of accommodation is allowing the injured worker to be off work recovering without losing their job. The amendments clarify that, for employers with more than 20 BC employees, an employee who had at least a year of pre-leave employment may not be terminated until after 2 years of leave. This obligation will apply to employees injured from July 1, 2023 onwards. Employers may actually appreciate this clear time limit although in cases of employees with short pre-leave service, this obligation may appear onerous. One might hope that the Human Rights Tribunal will be guided by this “2 year” rule in dealing with claims from employees terminated after 2 years of leave for non-WorkSafe illness or injury but there is no guarantee that will happen. Employers can terminate earlier if they can prove the termination has nothing to do with the leave e.g. the department is being shut down.
Furthermore, whenever an employee is terminated within 6 months of returning to work from a WorkSafe leave, the employee can challenge it and the employer bears a reverse onus of proving that the termination had nothing to do with the taking of the leave. If WorkSafe finds that an employer has failed to comply with their duty to maintain employment, it may award up to a year’s worth of benefits to the worker and may apply against the employer an administrative penalty based on the amount of the wage-loss or other benefits being paid to the worker.
Employers and their OHS managers need to be ready to comply with these new obligations effective January 1, 2024. Where a worker has already been off on a long WorkSafe leave but one under 24 months, they may wish to consult legal counsel about whether they can legally be terminated before these amendments come into force.
If you want more information on this topic, you can contact us at:
Geoffrey Howard: firstname.lastname@example.org
Sebastian Chern: email@example.com