Proposed Amendments to the Workers Compensation Act

On October 31, 2022, the BC government introduced a bill (the “Bill”) to amend the Workers Compensation Act (the “Act”). We have summarized some of the proposed changes that are most relevant to employers below.

Strengthening Workers’ Right to Apply for and Receive Compensation

Under the Act, employers are already prohibited from stopping or discouraging employees from reporting injuries, illnesses or death to WorkSafe. The Bill adds a section that further prevents employers from discouraging, impeding or dissuading a worker (or dependent) from applying for or receiving compensation from WorkSafe. A breach could result in an administrative penalty against the employer.

Duty to Cooperate in Reinstating Injured Workers

The Bill introduces two new statutory duties: the duty to cooperate in returning injured workers to work and the duty to maintain employment.

The duty to cooperate will require employers and workers to cooperate in the early and safe return or continuation of work. This includes:

• Contacting the worker/employer as soon as practicable after the accident and maintaining contact;
• Identifying suitable work for the worker that, if possible, restores their wages that they were earning in their pre-injury work; and
• Providing WorkSafe with the information they require in relation to the worker’s return/continuation of work.

As noted, the duty to cooperate applies to both employers and employees. Either party can notify WorkSafe if they believe the other party is not complying with the duty. WorkSafe may reduce or suspend compensation for workers who do not comply.

Duty to Maintain Employment

The duty to maintain employment requires that an employer must:

• If a worker is fit to work but unable to carry out their essential pre-injury duties, offer the worker the first “suitable work” that becomes available;
• If a worker is fit to carry out their essential duties, offer a worker their pre-injury work or alternative work of a kind and at wages comparable to their pre-injury work;
• Accommodate the worker by making any change to their work or the workplace that is necessary to the point of undue hardship.

If an employer terminates an employee within 6 months after they return to work, the employer is deemed to have failed to comply with the duty unless they can show that the termination was unrelated to the worker’s injury.

This duty applies to workers who have been employed (full-time or part-time) for a continuous period of at least 12 months. It does not apply to:

• Workers who are “deemed” under the Act to be workers;
• Employers who regularly employ fewer than 20 workers; and
• Any class of employers/workers/industry/class of industries prescribed by the Lieutenant Governor in Council (note: no such class has been named yet).

An employer has no more obligations under this duty if, on the second anniversary of a worker’s injury, the worker has not returned to work by that date. Similarly, an employer has no obligation to return the employee to pre-injury duties (or comparable work) if the worker is carrying out “suitable work” by the second anniversary of their injury. In other words, an employer is required to continue offering suitable work but would no longer be obligated to return the employee to their pre-injury work at by that date.

Note, the Bill does not include an exception for workers whose pre-injury positions are eliminated for unrelated reasons. Presumably, if the worker is able to return to their pre-injury work within two years, the employer would be obligated to provide alternative work of a kind and at wages comparable to their previous position.

If an employer fails to comply with its duty:

• WorkSafe may pay to the worker, for a period of up to one year, an amount equal to the compensation they were entitled to for temporary total/partial disability.
• WorkSafe may impose an administrative penalty, which can be up to $108,400.00 in 2022.

These new duties to cooperate and to reinstate mainly codify existing obligations under the Human Rights Code but they clarify some of the details of these obligations and codify the length these obligations continue.

Fair Practices Commissioner (the “Commissioner”)

The Bill would establish a Commissioner who would investigate complaints regarding alleged unfairness on the part of WorkSafe and make recommendations to resolve complaints and address systemic problems.

Unfortunately, this adds yet another avenue of appeal for claimants who are unhappy with WorkSafe on top of multiple existing levels of appeal.

Summary

If passed, the Bill would reinforce many responsibilities that employers already had to employees in the WorkSafe process. Those duties would also then carry significant penalties for breaches. Employers should watch the progress of the Bill carefully to ensure that they are aware of the full extent of the amendments if (i.e. when) it is passed.

If you want more information on this topic, you can contact us at:

Geoffrey Howard:      ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:         schern@howardlaw.ca

604 424-9688