Effective January 1, 2024, Employers in British Columbia, Canada Have Duties to Cooperate and to Maintain Employment Regarding Certain Workplace Injuries

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On November 24, 2022, Bill 41 – 2022: Workers Compensation Amendment Act (No. 2), 2022 (Bill 41), which introduced changes to British Columbia’s Workers Compensation Act, received Royal Assent. Effective January 1, 2024, Bill 41 imposes certain duties on employers and employees following a workplace injury. For a workplace injury that occurred on or after January 1, 2022, employers and workers must cooperate with each other and with WorkSafeBC towards the worker's early and safe return to, or continuation of, work. For any workplace injury that occurred on or after July 1, 2023, employers have a duty to offer work to certain injured employees and to accommodate them to the point of undue hardship.

WorkSafeBC has stated:

Many employers recognize the importance of return to work and are already engaged in effective practices. [Bill 41] formalizes these obligations, reinforces the value of return to work, and promotes positive outcomes for workers.

Duty to Cooperate

To cooperate with one another and WorkSafeBC in the worker’s early and safe return to, or continuation of, work:

  • The employer and the worker must contact one another as soon as practicable after the worker is injured and maintain communication with one another. This obligation does not apply, however, if contact and communication between the employer and the worker are likely to imperil or delay the worker's recovery;
  • The employer must identify suitable work for the worker that, if possible, restores the full wages they were earning at their pre-injury work; if the employer requests, the worker must assist the employer in doing so.
  • The employer and the worker must provide WorkSafeBC with information it requires in relation to the worker's return to, or continuation of, work, and take any other step WorkSafeBC requires.

If a worker fails to comply with the duty to cooperate, WorkSafeBC may reduce or suspend their compensation payments until the worker complies.

Duty to Maintain Employment

The duty to maintain employment applies to an employer that regularly employs a minimum of 20 workers, provided the injured worker has been employed by the employer, on a full- or part-time basis, for a continuous period of at least 12 months before the date of the worker’s injury.

If the worker is fit to work but not fit to carry out the essential duties of their pre-injury work, the employer must offer them the first suitable work that becomes available.

If the worker is fit to carry out the essential duties of their pre-injury work, the employer must (a) offer them that pre-injury work, or (b) offer them alternative work of a kind and at wages that are comparable to their pre-injury work and wages from that work. Upon doing so, the employer must, to the point of undue hardship, make any change to the work or workplace that is necessary to accommodate the worker; however, the worker’s right to accommodation is not absolute. The employer’s obligation to accommodate is up to the point of “undue hardship.” Undue hardship is a case-by-case contextual examination of factors that weigh the burden of accommodation against the employer’s ability to reasonably make the accommodation. Such factors include, among other things, the financial cost to the employer, safety matters, and the impact of the accommodation on the morale of other employees.

An employer’s duty to cooperate and duty to maintain employment generally end on the second anniversary of the date the worker is injured.

If the employer terminates the worker's employment within six months after the worker begins to carry out suitable work or begins to carry out the essential duties of the worker's pre-injury work or alternative work, the employer is deemed to have failed to comply with its duty to cooperate and its duty to maintain work. The employer will not be deemed to have failed to comply with such duties, however, if it can establish to WorkSafeBC’s satisfaction that the worker’s termination was unrelated to the worker’s injury.

If, in a unionized workplace, the duty to cooperate or the duty to maintain employment conflicts with a term of a binding collective agreement (CA), the section that conflicts will prevail if it affords the worker a greater benefit than does the CA’s term.

WorkSafe BC has said that if an employer is not taking steps to comply with its obligations or address an issue, it will contact them to learn more, discuss the issues and potential barriers to cooperation, and offer its support. If a worker refuses to comply, WorkSafeBC may reduce or suspend the worker’s compensation payments.

WorkSafe BC provides helpful resources pertaining to the duty to cooperate and the duty to maintain employment here.

Bottom Line for Employers

Employers in British Columbia are encouraged to become familiar with the duty to cooperate and the duty to maintain employment in respect of certain workplace injuries, which became effective when 2024 commenced, and to ensure their compliance when such duties apply.

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