After a busy couple of years of changes to the workers’ compensation system in BC, further amendments to BC’s Workers Compensation Act (“WCA”) are currently in the works. Minister Bains recently announced Bill 41, the Workers Compensation Amendment Act (No. 2), 2022, for first reading on October 31, 2022. While Bill 41 is still in its early stages, BC employers should keep apprised of its contents and progress, as it is likely to have significant cost and labour relations implications for employers if it passes through the legislature as presently drafted.
Among other things, Bill 41 introduces provisions regarding the establishment of a Fair Practices Commissioner for complaints involving WorkSafeBC, the expansion of access to Independent Health Professionals during Workers’ Compensation Appeal Tribunal proceedings, further prohibitions on claim suppression by employers, the indexation of workers’ compensation benefits to the Canadian Consumer Price Index, and most significantly, a specific legal obligation for employers to return injured workers to work, including a duty to cooperate and to maintain employment.
The provisions surrounding the legal obligations to return injured workers to work will be of particular interest to employers. In this regard, Bill 41 provides that if the WCA provisions with respect to the duty to cooperate and maintain employment happen to conflict with a term of a collective agreement that is binding on an employer in relation to a worker, then the conflicting section of the WCA will prevail over the collective agreement to the extent that it affords the worker a greater benefit than the term of the collective agreement. Bill 41 adds that this section will not operate to displace a term of the collective agreement that deals with seniority; however, whether and how this arrangement can actually work in practice remains to be seen, given that the WCA will no doubt conflict with various negotiated collective agreement provisions.
The proposed provisions surrounding the duty to re-employ injured workers and to accommodate returning workers short of undue hardship would also suggest that WorkSafeBC will now have overlapping jurisdiction with the BC Human Rights Tribunal to adjudicate accommodation matters, potentially leading to jurisdictional disputes over these matters.
Relatedly, while employers are currently aware of the damage awards they may face from the BC Human Rights Tribunal for failing to discharge their obligations to a disabled employee, employers should be aware that Bill 41 now also adds prospective administrative penalties from WorkSafeBC with respect to the duty to cooperate and to maintain employment. Specifically, if WorkSafeBC is satisfied on a balance of probabilities that the employer has failed to comply with a provision regarding the duty to cooperate or maintain employment, it will have the power to issue an administrative penalty against the employer up to the maximum wage rate determined by the Board under section 209 of the WCA for the calendar year. For reference, the current maximum wage rate for 2022 is $108,400.00, and the maximum wage rate for 2023, effective January 1, 2023, will be $112,800. Accordingly, Bill 41 creates the potential for substantial cost consequences for employers arising from a complaint involving a failure to accommodate injured workers in their return to work.
We will continue to monitor Bill 41 as it progresses and its potential implications for employers going forward.