New Obligations in British Columbia to Maintain Employment for Some Injured Workers

On Jan. 1, changes to British Columbia’s Workers Compensation Act, introducing a duty to accommodate and maintain employment for certain injured workers, took effect.

Duty to Accommodate and Return Injured Employees to Work

Under the act, British Columbia employers and injured workers now have a mutual duty to cooperate in employees’ return to work. Specifically, they will need to establish and maintain communication as soon as practicable after the injury occurs; identify suitable work for the employee that, if possible, restores their pre-injury wages; and apprise WorkSafeBC of the employee’s return to work or continuation of work. Either party may request that WorkSafeBC investigate a failure to cooperate, and WorkSafeBC may impose remedies, including reducing or suspending payments of compensation to the worker until they comply with their obligations.

This duty to cooperate applies to workers who sustained injuries no earlier than Jan. 1, 2022, except that the obligation to contact applies as soon as practicable after Jan. 1, 2024, and not as soon as practicable after the worker was injured.

Further, employers will have a duty to return injured workers back to their pre-injury work or otherwise provide alternative work of a kind and at wages that are comparable to the worker’s pre-injury work. Additionally, to facilitate the return, employers must accommodate injured workers with any necessary changes to their work or the workplace up to the point of undue hardship. This duty to accommodate is separate from the existing accommodation duty under the Human Rights Code.

These new duties to maintain employment and accommodate apply only to employers with 20 or more workers, and to workers with at least 12 months of continuous service before their injury, including full-time or part-time service. These duties expire two years after the date of injury if the worker has not returned to work or if the worker is carrying out suitable work. Additionally, these requirements apply in relation to a worker who sustained an injury no earlier than July 1, 2023.

If an employer terminates the returned worker within six months of their return, the employer is deemed to have breached its statutory duties unless the employer can demonstrate that the termination was unrelated to the worker’s injury. However, this reverse onus provision does not apply to workers terminated before Jan. 1, 2024. If the employer breaches the duty to maintain employment, WorkSafeBC may provide the worker with an amount equivalent to one year’s compensation under the temporary total or partial disability provisions of the Workers Compensation Act.

Takeaways for Employers

Although these new obligations are similar to and overlap with existing accommodation requirements under the Human Rights Code, employers will nonetheless want to revisit their workplace injury and accommodation policies to ensure they comply with these new statutory requirements. In particular, although the obligations are not retroactive, they apply to existing injuries that arose prior to Jan. 1, 2024, such that employers will need to promptly engage in any cooperation and accommodation of workers with such injuries, to the extent that they have not already done so in line with accommodation requirements under the Human Rights Code.

Unionized employers should also be aware that to the extent these statutory obligations conflict with the provisions of a collective agreement, the statutory obligations will prevail to the extent they provide a greater benefit to the worker than the collective agreement. However, the statutory obligations do not operate to displace any provision dealing with seniority of employees—that is, accommodation of an employee with alternative suitable work could not operate to bump employees with seniority rights to such alternative work.

Cameron Penn is an attorney with Stikeman Elliott in Calgary, Alberta. David Price and Gary T. Clarke are attorneys with Stikeman Elliott in Vancouver, B.C., and Calgary. © 2024 Stikeman Elliott. All rights reserved. Reposted with permission of Lexology.