Bill 41’s proposed changes to the British Columbia Workers Compensation Act: New obligations for employers to return injured workers to work
The BC Ministry of Labour introduced Bill 41, Workers Compensation Amendment Act (No. 2), 2022, on October 31, 2022. The proposed changes to the Workers Compensation Act (“WCA”) creates new duties for employers to work with and re-employ injured workers and prohibits employers from discouraging or punishing workers from filing a compensation claim. Bill 41 commenced the Second Reading debate stage on November 1, 2022 and could potentially be passed into law before the end of the fall session next week.
New Division 3.1 – Return to Work and Other Duties in Relation to Injured Workers
A significant aspect of Bill 41 for employers, are the proposed amendments to the WCA that establish clear duties on employers to cooperate and maintain employment for their injured workers. The amendments will require employers to co-operate with workers in an aim to transition the worker back to their pre-injury employment or to other suitable positions with the employer. This involves communicating with the worker and identifying suitable work for the worker that, if possible, restores the full wages the worker was earning at the worker’s pre-injury work.
Employers will also have a duty to maintain employment for the injured worker. This includes allowing the worker to return to their pre-injury work if the worker is fit to work, or, if the worker cannot carry out the essential duties of their pre-injury work, identifying suitable alternative work that, where possible, restores the full wages the worker was earning at the worker’s pre-injury job.
The amendments also explicitly state that an employer must, to the point of undue hardship, make any changes to the work or the workplace that are necessary to accommodate a worker. In Janet Patterson’s 2019 report, “New Directions: Report of the WCB Review 2019”, she recommended that the WCA be amended to acknowledge the duty to accommodate as that duty is defined in human rights decisions. Bill 41 follows through with this recommendation.
In addition, the Bill 41 amendments require that employers who terminate a worker’s employment within 6 months after the worker returns to work, are deemed to have failed to comply with the duty to maintain employment, unless the employer can demonstrate that the termination was unrelated to the worker’s injury.
The Workers Compensation Board may enforce the statutory obligations through administrative penalties for an employer who fails to comply with the duties set out in the Bill 41 amendments.
By comparison, Ontario and Manitoba have similar legislative requirements in their workers compensation and workplace safety legislation requiring the employer to re-employ injured workers and accommodate the work or the workplace to the needs of the worker to the extent that the accommodation does not cause the employer undue hardship. Alberta’s workers compensation legislation briefly contained a provision similar to Bill 41’s proposed requirement for employers to accommodate the work or the workplace to the needs of the worker to the extent that the accommodation does not cause the employer undue hardship but was repealed on April 1, 2021.
The return to work and other duties in relation to injured workers will ultimately come into force by regulation, on a date to be determined by the government.
Bill 41 contains transitional provisions, and notably one respecting the duties to cooperate and maintain employment. The requirements for an employer to cooperate only apply to workers who were injured up to 2 years before the section comes into force. The requirements for an employer to maintain employment only apply to workers who were injured up to 6 months before the section comes into force. This transitional provision will also come into force on a day to be set by regulation.
Please contact a member of our Labour and Employment Group if you have any questions regarding these upcoming changes to workers compensation legislation in BC.