By Tom Archibald, HRC Law Professional Corporation
In 2024, British Columbia employers are now under new and more onerous regulations governing how to handle employees who suffer an illness or injury in the course of employment. Amendments to the province’s Workers’ Compensation Act took effect January 1, 2024 that imposed two new duties: the duty to “cooperate”, on employers and injured workers, and the duty to “maintain employment”, on employers.
These amendments were made in 2022’s Bill 41 and were praised at the time by the provincial government as ways to enhance and promote the safe return to work of employees injured or made sick on the job.
Duty to Co-operate
The first broad set of duties are under the duty to co-operate. Employer obligations under this duty apply to claims made after January 1, 2022, and are to:
- Contact the employee as soon as practicable following the injury;
- Maintain communication with the employee throughout the injury period, as appropriate in the circumstances;
- Identify suitable work for the worker that, if possible, restores their full wages;
- Provide WorkSafeBC with required information regarding the worker’s return to, or continuation of work; and
- Generally, cooperate in the return-to-work process.
Correspondingly, the injured or ill employee must contact the employer following the injury, maintain that communication, and cooperate with their employer to identify suitable work. The employee must also not unreasonably refuse to accept suitable work. Disputes about the employee’s return to work can be resolved by WorkSafeBC. WorkSafeBC also has the new power to suspend a worker’s benefits until they comply.
Duty to Maintain Employment
The second set of new duties come under the general “duty to maintain employment”. These apply to employers with 20 or more employees and to claims arising after July 1, 2023.
The general rule is that where an employee becomes disabled from earning full wages who was continuously employed (full or part-time) for at least 12 months, the employer must now maintain the employment of the employee. Specifically:
- If the employee is fit to carry out the essential duties of their job, with or without accommodation, the employer must offer the worker their pre-injury work or an alternative that is comparable in duties and earnings. If the employee is not fit to carry out the essential duties of their pre-injury job, but is able to work in some capacity, an employer must offer them the first suitable work that becomes available.
- An employer must alter or adapt the work or workplace in ways that are necessary to accommodate the employee, to the extent that they do not cause undue hardship.
- An employer who terminates an employee who has returned to pre-injury work, suitable work, or alternative work for less than six months is now deemed to have breached the duty to maintain employment, unless the employer can establish that the termination was for reasons unrelated to the injury.
- WorkSafeBC will play a mediating and facilitating role in any disputes arising from this new duty.
- The duty to maintain employment runs until the second anniversary of the date of injury, after which, if the employee has not returned to work, the employer’s duty to maintain employment ends.
Importantly, however, the common law duty to accommodate the disability of the worker continues – simply because the two-year time frame expires, employers are not relieved of their duty to accommodate under human rights legislation to the point of undue hardship.
While many of the new duties are already things employers are required to do implicitly when an employee suffers a workplace injury or illness, these amendments make those steps explicit requirements. For example, co-operation was always a policy requirement generally applied to all claims, and the duty to maintain employment is similar to the existing duty to accommodate a disabled employee with the same or a similar position under human rights legislation. These new requirements, however, now make those duties explicit and concrete.
Further, WorkSafeBC is now empowered to enforce these duties with administrative penalties.
In many ways these rules are a legislative codification of the existing duty under human rights legislation to accommodate disabled employees to the point of undue hardship, and it is anticipated that the B.C. WCB and WCAT will apply these provisions in harmony with the principles rooted in the Supreme Court of Canada’s Meiorin decision and the extensive jurisprudence following it that gave shape to the duty to accommodate as we know it today. Under Meiorin, the SCC laid down the “bona fide occupational requirement” test, which holds that employers seeking to apply a standard or rule in the context of a disabled employee must show:
- The employer adopted the standard for a purpose that is rationally connected to the performance of the job;
- The employer adopted the standard in an honest and good-faith belief that it was necessary to the fulfillment of that purpose; and
- The standard is reasonably necessary to the accomplishment of that legitimate purpose, which requires the demonstration that it is impossible to accommodate the employee without imposing undue hardship on the employer.
Accordingly, it would not be surprising if WorksafeBC looked to the voluminous case law since Meiorin, particularly from B.C. courts and tribunals, for guidance in enforcing the new duties.
However, it is important to note that these new duties, particularly the duty to maintain employment, are not applicable to fixed term contracts; and are not applicable to unionized employees where the collective agreement contains provisions similar to or superior to the statutory duties.
About the Author
This article was written by Tom Archibald, one of the seasoned employment lawyers at HRC Law Professional Corporation. Tom comes with 15+ years of legal expertise in employment and labour law and a passion for helping Canadian employers navigate through complex legal landscapes. Tom’s extensive knowledge covers a wide range of employment issues, including precarious legal situations.