Further to our previous article regarding WorkSafeBC’s impending consultation process and implementation of the new legislative provisions on the duties to cooperate and maintain employment under the Workers Compensation Act (the “Act”), WorkSafeBC has recently released a discussion paper setting out its proposed policies on these provisions.
1. Proposed Policies
WorkSafeBC’s discussion paper provides a general overview of its proposed policy changes to correspond with the legislative amendments that will come into force on January 1, 2024. The discussion paper also notes that these new provisions regarding the duties to cooperate and maintain employment will retroactively apply to workers’ compensation claims that pre-date January 1, 2024, despite the provisions coming into force on January 1, 2024.
WorkSafeBC has proposed adding four new policies to its Rehabilitation Services & Claims Manual, Volume II (the “Claims Manual”) to address the legislative changes. These include policies the following topics:
a. Introduction to Return to Work Obligations,
b. Duty to Cooperate,
c. Duty to Maintain Employment, and
d. Penalties for Failure to Comply with the Duty to Cooperate and the Duty to Maintain Employment.
Relatedly, WorkSafeBC has also proposed removing its current Policy Item #34.11, “Selective/Light Employment,” from the Claims Manual altogether, as well as revising Item AP5-243-1, “Assessment Payments,” in WorkSafeBC’s Assessment Manual, to include the requirement that WorkSafeBC refund and pay interest on administrative penalties issued in relation to these provisions if those penalties are subsequently reduced or cancelled on a review or appeal.
A high level overview of the four new proposed policy items is provided below, however, we encourage employers to carefully review these new policies as they provide detailed and specific guidance on how the various concepts therein are to be interpreted:
a. Introduction to Return to Work Obligations
The first of the new policies consists of introductory policy, which generally sets out the overarching framework, definitions, and context for the obligations on employers and workers under the duties to cooperate and maintain employment. This policy is meant to be read in conjunction with the three other proposed policies that follow.
b. Duty to Cooperate
This policy provides that the duty to cooperate requires employers and injured workers to cooperate with each other, and with WorkSafeBC, in a worker’s early and safe return to, or continuation of, work.
This policy sets out a variety of obligations required of both workers and employers in this regard, including the following:
– The employer must cooperate by: contacting the worker as soon as practicable after the worker is injured; maintaining communication with the worker as appropriate in the circumstances; identifying suitable work for the worker that, if possible, restores the worker’s full wages; providing WorkSafeBC with information it requires in relation to the worker’s return to, or continuation of, work; and where reasonable, making available to the worker the suitable work the employer has identified.
– The worker must cooperate by: contacting the employer as soon as practicable after the worker is injured; maintaining communication with the employer as appropriate in the circumstances; on request of the employer, assisting the employer to identify suitable work; providing WorkSafeBC with information it requires in relation to the worker’s return to, or continuation of, work; and not unreasonably refusing suitable work when it has been made available by any employer (not just the injury employer).
As provided in the policy, the duty to cooperate will apply to an employer and a worker of the employer if, because of an injury that arose out of and in the course of the worker’s employment, the worker has been disabled from earning full wages at the work at which the worker was employed at the time of the injury.
This duty applies regardless of how many workers an employer employs, in contrast to the duty to maintain employment discussed below.
The proposed policy notes that workers and employers are encouraged to work together to resolve any disputes regarding compliance with the duty to cooperate. However, the worker or the employer can notify WorkSafeBC of any disputes which cannot be resolved, and in such circumstances WorkSafeBC must make a determination within 60 days. WorkSafeBC can also determine compliance at any time on its own initiative.
c. Duty to Maintain Employment
As proposed in the policy, the duty to maintain employment applies to any employer who regularly employs 20 or more workers, when the injured worker has been continuously employed with the employer for at least 12 months, and becomes disabled from earning full wages at their pre-injury work due to a workplace injury.
The proposed policy explains that the nature of an employer’s obligations under the duty to maintain employment will depend on whether the injured worker is fit to carry out the essential duties of their pre-injury work or whether the injured worker is fit to work in some other capacity. When the worker is fit to carry out the essential duties of their pre-injury work, the employer will be required to offer the worker either their pre-injury work, with or without accommodation; or alternative work, with or without accommodation, that is comparable to the worker’s pre-injury work and wages. The policy also states that, in cases where the expense to accommodate the worker would result in undue hardship for the employer, the Board may consider paying for a portion or all of the costs to accommodate the worker.
In terms of duration, the policy proposes that the duty to maintain employment will be ongoing until the second anniversary of the date of the worker’s injury. If the worker has not returned to work by this time, the employer’s obligations to maintain employment will end. Further, if the worker voluntarily severs the employment relationship, the employer’s duties to maintain employment will no longer apply. However, if the worker is carrying out pre-injury work, alternative work, or suitable work by the second anniversary, the obligation to make any change to the work and/or the workplace that is necessary to accommodate the worker’s injury is ongoing beyond the second anniversary.
It is also important to note that, under this policy, if an employer terminates a worker’s employment within six months after the worker begins carrying out their pre-injury work, alternative work, or suitable work, the employer will be deemed to have failed to comply with their duty to maintain employment, unless the employer can establish, on a balance of probabilities, that the termination was not related to the worker’s injury.
The policy also provides that if the Board determines that undue hardship would result from accommodating the worker, the employer is not required to provide accommodation, treading into the territory of the BC Human Rights Tribunal’s jurisdiction. It remains to be seen how jurisdictional issues will be resolved between the two administrative bodies.
As with the duty to cooperate, the worker and the employer are encouraged under the policy to work together to resolve disagreements that arise regarding the duty to maintain employment, and the worker or employer may notify WorkSafeBC of any disagreements which cannot otherwise be resolved. Where this occurs, or on its own initiative, WorkSafeBC can adjudicate the matter.
d. Penalties for Failure to Comply
The new policies provide that if a worker fails to comply with the duty to cooperate or maintain employment, this may result in WorkSafeBC reducing or suspending that worker’s compensation payments until they comply. If a worker begins to comply with their obligations after a period of time, their compensation payments will be reinstated prospectively from the date at which the worker has started to comply. If WorkSafeBC determines that a worker’s refusal of suitable work was not reasonable, WorkSafeBC may reduce the worker’s compensation payments on the basis that this amounts to a failure to comply with the duty to cooperate.
If an employer fails to comply with the duty to cooperate or maintain employment, this may result in WorkSafeBC issuing an administrative penalty against the employer. The policy notes that WorkSafeBC will not impose an administrative penalty if the employer has taken “all reasonable steps” to comply with its duty, or where the employer addresses the issue after being advised of it by WorkSafeBC and comes into compliance. Of note, before issuing an administrative penalty, the Board will inform the employer about its duties, give notice a penalty may be imposed, and provide the employer with a reasonable opportunity to comply and/or to provide an explanation for non-compliance.
The proposed penalty amount for a failure to comply with the duty to cooperate will be equal to the cost of wage-loss or similar benefits being paid to the worker. It will be charged at the end of each month the employer is non-compliant and will end when the employer is compliant.
The proposed penalty amount for a failure to comply with the duty to maintain employment will be based on the worker’s average net earnings for the 12-month period before the date of the worker’s injury, or an amount equal to 50% of the maximum wage rate set out in the Act, whichever is greater.
The proposed maximum amount of these penalties is the maximum wage rate for workers set out in the Act for the year in which the penalty was imposed.
Implications for Unionized Workplaces
Of particular interest to unionized employers is the fact the new legislative provisions regarding the duty to maintain employment state that they will override collective agreement terms, other than terms with respect to seniority, to the extent that the legislative provisions will afford a greater benefit to the worker than the terms of the collective agreement. As WorkSafeBC’s proposed policies override negotiations employers and unions have previously conducted to govern their workplaces, while providing little guidance on how this will operate in practice, unionized employers in particular may want to see clarity from WorkSafeBC as to the operation of these provisions and their displacement of collective agreement terms.
Consultation Process – Now Open
WorkSafeBC’s consultation process on these proposed policies on the duties to cooperate and maintain employment will be open until 4:30pm on September 1, 2023. As usual, stakeholders can provide their feedback regarding these proposed policies by following the steps outlined on WorkSafeBC’s website.