Bill 41: WorkSafeBC Worker Info Session – Duty to Cooperate and Duty to Maintain Employment

With about one month to go, WorkSafeBC, on November 29, 2023, finally provided some insight to workers as to what January 1, 2024 will look like with respect to the duty to cooperate and the duty to maintain employment (sections 154.1 – 154.6 of the Workers Compensation Act).

The duty to cooperate and the duty to maintain employment, which will be effective starting January 1, 2024, were included in the changes made to the Workers Compensation Act that were introduced in Bill 41, which passed into law on November 24, 2022. The goal of these two duties is to recognize the benefits of injured workers remaining connected to the workplace following an injury.

What we learned from this session was that realistically, we will have to wait and see how these duties are implemented after January 1, 2024 before we really know the true impact of these provisions on workers – including whether these provisions will have a positive or negative effect on injured workers. At the time of this article, the new policy had also not yet been issued. WorkSafeBC advised during the session that the relevant law, policy and practice guidance will be published to WorkSafeBC as soon as it’s available. Therefore, the information in this article will need to be updated once those policies are published and once we see how those policies are being implemented by WorkSafeBC.

However, let’s take a look at what WorkSafeBC did mention regarding both these duties, including:

1. What these duties are and who they apply to,
2. How WorkSafeBC intends to implement these policies in the new year, and
3. What do these duties mean for injured workers?

 

Duty to Corporate

1. What these duties are and who they apply to

   The duty to cooperate requires both the employer and the worker to contact one another as soon as practicable after the injury and maintain communication with one another. Although this will not be required if such communication would likely imperil or delay the worker’s recovery. The employer will also be required to identify suitable work for the worker to restore full wages, if possible.

   Both the worker and the employer are also required to cooperate with the Board in the worker’s early and safe return to, or continuation of, work.

   If there is a failure to comply and the dispute can’t be resolved, then the Board may reduce or suspend payments of compensation to the worker until the worker complies and/or impose on the employer an administrative penalty.




2. How WorkSafeBC intends to implement these policies in the new year?

   There are several terms which will require detailed definitions in order to be able to truly understand how this duty will apply.

   For example, with respect to the worker and the employer contacting one another, what is considered “as soon as practicable”

   WorkSafeBC indicated that there is no rule or expected timeline with respect to this requirement. Instead, the severity of the injury, availability of the worker’s involvement and where the worker is at with respect to their recovery should be based on what the employer and the worker consider reasonable. The exception to the cooperation obligation will be when these interactions will significantly affect the worker’s physical or mental health or will have a negative impact on the worker’s recovery. The expectation is about balancing the worker’s obligations and well-being.

   As an example, WorkSafeBC mentioned that the date of injury or next business day, in some cases, would be considered “as soon as practicable”.

   Another clarification that was needed was what would be considered “suitable” work. WorkSafeBC described suitable work as safe, productive, and meaningful work that is within workers capabilities and skills. This includes modified duties, modified hours, graduated return to work, etc.

   When it comes to suitable work, the employer must make available the suitable work to the worker and the worker must not unreasonably refuse suitable work from any employer that they have an employment relationship with at the time of the injury. The worker is to assist in identification of this suitable work and where possible, this work is to restore the worker’s pre-injury wages.

   WorkSafeBC also no longer intends to be the go-between for the employer and the worker with respect to these duties. It is expected that the worker and the employer are responsible for contacting each other directly. WorkSafeBC indicated that they are there to facilitate communication, provide return to work planning consultation and support, address disputes around suitability of a return-to-work plan and determine compliance. However, it will be when WorkSafeBC is notified by either the worker or the employer of a breakdown, that they will then address the dispute. Although WorkSafeBC has 60 days to resolve the dispute, they have indicated that they are going to try to do so within days and not weeks.

   When it comes to non-compliance, WorkSafeBC will assess actions from the perspective of a reasonable person, consider individual circumstances, determine meaningful action and reinstate benefits prospectively. If a worker is non-compliant then this could result in a suspension or reduction of compensation benefits. If the employer is non-compliant then this could result in administrative penalties. Although WorkSafeBC has this power, during the session it was emphasized that their approach will be to focus on how to coach, educate and support workers and employers in their obligations and that administrative penalties would be a last resort.

   For disputes about the suitability of an offer, WorkSafeBC will consider three things:

   1) Determine whether there was a work offer;
   2) Determine the suitability of the work offer – whether it is safe, productive and consistent with the worker’s skills and abilities; and
   3) Determine whether the refusal is reasonable.

    

3. What do these duties mean for injured workers

   This duty applies to all accepted claims where the worker is disabled from earning full wages with a date of injury after January 1, 2022 and all decisions after January 1, 2024. This legislation is not retroactive, but it allows existing claims to transition into the new legislation.

   It means contacting the employer as soon as practicable after the worker is injured and maintaining communication with the employer.

   It means staying connected with the workplace, which may be in the form of taking part in staff meetings, training, etc.Assisting the employer to identify suitable work that, if possible, restores the full wages the worker was earning at the worker’s pre-injury work.It means collaborating and developing a return-to-work plan with the employer and meeting with the employer at regular intervals and documenting that work plan.

   It means that a worker can’t just simply rely on their doctor’s advice as WorkSafeBC doesn’t require medical approval for a worker to return to work. However, with written plans, the worker could use that written plan to update their doctor with respect to a potential suitable work offer.

   It means that workers do not have to disclose details regarding their diagnosis or treatment, but do need to communicate regarding their functional abilities and suitable work.

   It means providing the Board with information the Board requires in relation to the worker’s return to, or continuation of, work.

   It also means not unreasonably refusing suitable work when offered by any time of injury employer.

 

Duty to Maintain Employment

1. What these duties are and who they apply to

   The duty to maintain employment is a duty to accommodate to the point of undue hardship. This provision creates a floor, as Collective Agreements with greater benefits than this provision will prevail if there is conflict with such terms. This provision includes a time limit for these obligations. If an employer fails to comply with this section, there are administrative penalties that the Board can impose and compensation that a worker could be provided, as a result.

   However, this duty only applies to employers who regularly employ 20 or more workers and workers that that have been employed by the employer, on a full- or part-time basis, for a continuous period of at least 12 months before the date the worker was injured. This duty also only applies to workers who have an accepted time loss claim and are disabled from earning full wages.

   The duty to maintain employment also ends if the worker has not returned to work by the 2nd anniversary of the date of injury, psychological change or date of disablement. The employer’s obligation also ends if the worker has voluntarily severed their employment or the employment relationship has ended. If the worker is doing pre-injury, alternative or suitable work, the employer’s obligation to make changes to the work or workplace necessary to accommodate a worker is ongoing. However, if the worker is doing suitable work, the employer’s obligation to offer pre-injury or alternative work ends at 2 years.

 

2. How WorkSafeBC intends to implement these policies in the new year

   It appears that this duty will be applied in the following manner – If a worker is fit to carry out the essential duties of their pre-injury work, an employer must offer that pre-injury work to the worker or offer alternative work of a kind and at wages that are comparable to the worker’s pre-injury work and wages. If the worker is fit, but not fit to carry out the essential duties of their pre-injury work, an employer must offer the worker the first suitable work that becomes available. An employer must, to the point of undue hardship, make any change to the work or the workplace that is necessary to accommodate a worker.

   This duty will apply to all claims with a date of injury after July 1, 2023, and all decisions after January 1, 2024.

   WorkSafeBC intends to determine undue hardship as a point at which it is too difficult, unsafe, or expensive to remove barriers so injured workers can return to work. Employers will be expected to make reasonable and practical efforts to accommodate a worker, however, there are limits to this obligation and the employer is not required to accommodate if there is undue hardship.

 

3. What do these duties mean for injured workers

   That in some circumstances, the employer has a duty to accommodate to the point of undue hardship.That the accommodation does not need to be the worker’s preferred accommodation so long as it’s reasonable.

   That the worker may have recourse should the employer terminate their employment shortly after the worker begins suitable work. For example, if an employer terminates a worker’s employment within 6 months after the worker begins to carry out suitable work or begins to carry out the essential duties of their pre-injury or alternative work, the employer may be found to have failed in the duty to maintain employment.

   That workers can request WorkSafeBC review whether the employer has failed in its duty to maintain employment. This request should be within 3 months of termination.

 

Collective Agreements

WorkSafeBC, in their session, indicated that when there is a conflict between the new obligations and a collective agreement, the rule or provision that provides the most favourable return to work options will prevail – except where seniority is a factor. Given these complexities, WorkSafeBC will review Collective Agreement issues on a claim by claim basis.

Administrative penalties

WorkSafeBC made clear in their session that administrative penalties would be a last resort after trying to bring the employer and the worker into compliance. How these penalties would be calculated would be in the policy, and may be up to the amount of the Board maximum wage rate.

Where an employer failed to comply with the duty to maintain employment and the worker is no longer temporarily disabled, WorkSafeBC may make payments to a worker. These payments would be equal to the worker’s wage loss benefits and may be paid for a period of up to one year. However, WorkSafeBC will generally not make payments where a worker is receiving vocational rehabilitation benefits.

Areas of concern

Even with further information from this session, there still remain several areas of concern with respect to the duty to cooperate and the duty to maintain employment.

There is a lack of requirement for medical approval which is very concerning and also a lack of ability for the worker to rely solely on their doctor’s medical opinion. It was noted that where a worker refuses a return to work offer based on the opinion of their treating doctor, WorkSafeBC must determine whether the refusal was unreasonable. To do this, they may look at whether the doctor was informed of the nature of the return to work offer or availability of the duties.

Where there is a clear discrepancy between medical opinion and the worker’s functional abilities, WorkSafeBC may consider the refusal to be unreasonable, if it is solely based on the doctor’s opinions. In case of discrepancy WorkSafeBC would reach out to the provider and gather additional information.

The worker’s participation in identifying suitable duties is also left to the discretion of the employer and is not a requirement.

The Board also only gets involved if the worker makes a complaint.

There is also a very real concern about the difficulty or delay in accessing wage loss benefits with respect to these duties. WorkSafeBC has the ability to wait 60 days before making a decision about wage loss benefits.

It is also unclear how and if unions will be involved in the employers’ duty to maintain employment.

And lastly, there is a real concern with respect to how the duty to maintain employment policy will overlap with human rights issues and whether decision makers with experience and knowledge in human rights will be involved in issuing these types of decisions, as a decision made in the workers’ compensation system may affect decisions outside the workers’ compensation system.

Although we are still left waiting to see the details of the policy and practice directives related to these duties, we will ultimately have to wait for the implementation of these duties in the new year to see how they truly affect injured workers and their rights to fair compensation.

For those that wish to see this presentation themselves, WorkSafeBC mentioned that there would be a link to this presentation on their website (www.worksafebc.com).

 

Note to our Readers: This is not legal advice. This is general information. Please contact our offices, if you are looking for legal advice.

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