On November 24, 2022, Bill 41, which introduces key changes to BC’s Workers Compensation Act, received Royal Assent.
The Act’s proposed changes entered the province’s legislature and underwent its first reading on October 31, 2022. Given that Bill 41 has been passed by the legislature, it is important to discuss the impacts it will have on employers in BC.
This blog details changes made to the Act, and the impact they will have on employers. These include new employer obligations on recalling employees to work after an injury, the accommodation process, and claim suppression. It also outlines how the Act has increased the maximum compensation for non-traumatic hearing loss and the new requirement for a Fair Practices Commissioner.
While the Act has received Royal Assent, many of the provisions mentioned in this article are not yet in force. The implementation date and transitional periods (if applicable) for each amendment are outlined in each individual section below.
Amendments to the Workers Compensation Act
Duty to cooperate
Under Division 3.1, Return to Work and Other Duties in Relation to Injured Workers, Section 154.2, the Act establishes a new “duty to cooperate” for both employers and employees.
Under this new section, the Act states that an employer must cooperate with a worker and the Board in the worker’s early and safe return to, or continuation of, work by contacting the worker as soon as practicable after the injury occurs. The employer is required to maintain communication with the worker, identifying suitable work for the worker that, if possible, restores the full wages the worker was earning pre-injury and provide the Board with information it requires in relation to the worker’s continuation or return to work.
Conversely, the employee must cooperate with their employer when they sustain an injury in all the same ways. For example, the worker must also contact their employer as soon as practicable after sustaining an injury and assist their employer to identify suitable work that, if possible, restores their pre-injury wages. The employee must also provide the Board with all information it requires.
If a worker fails to comply with their obligations, the Board may reduce or suspend payments of compensation to the worker until they comply. Employers should note that these rules pertaining to the duty to cooperate are not yet in effect. According to the Act, this Section will commence on a date to be set by regulation of the Lieutenant Governor in Council.
The above-noted requirements pertaining to the duty to cooperate apply to workers who sustained an injury no more than two years before the Section comes into force. The date this Section comes into force has yet to be determined.
Duty to maintain employment
Another amendment that impacts employers is Section 154.3, which enforces a duty for employers to maintain injured employees’ employment. Employers should note that this duty to maintain employment only applies if the employee has been continuously employed for at least 12 months before the date they were injured. Additionally, small business owners should note that the duty does not apply to employers who regularly employ less than 20 workers.
In this section, the Act states that if a worker is ready to work but cannot complete the essential duties of their pre-injury position, the employer must offer the employee the first suitable work that becomes available. If the employee is fit to carry out their pre-injury role, the employer must offer that same position to the worker or offer them a similar position at a comparable wage rate.
Much like BC’s Human Rights Code, the Act also establishes a new duty to accommodate for employers. It states that an employer must, to the point of undue hardship, make any changes to the work or the workplace that are necessary to accommodate a worker.
Employers should note that these duties come with an expiration date. Employer’s obligations to maintain employment end on the second anniversary of the date the worker was injured if they have not returned to work or are completing suitable work. Employers must wait these two years until their duties to the employee expire. If they do not, they could be in breach of the law.
If you terminate a worker within six months after they return to work, you are deemed to have failed to comply with the Act (unless you can establish, to the Board’s satisfaction, that the termination was unrelated to the employee’s injury). Additionally, if you fail to comply with your duty to maintain employment, you may face administrative penalties and costly fines.
Employers should note that these rules pertaining to the duty to maintain employment are not in effect. According to the Act, this Section will commence on a date to be set by regulation of the Lieutenant Governor in Council.
The above-noted requirements pertaining to maintaining employment only apply to workers who were injured up to six months before the Section comes into force as a transitional period. The date this Section will come into force has yet to be determined.
Additionally, Section 154.3 (8) of the Act (an employer cannot terminate a worker within six months after they return to work) does not apply in relation to a worker whose employment is terminated before the date this Section comes into force.
The Act has also added another new subsection under Division 10, Employer Accident Reporting, Investigation and Related Prohibitions (Section 73). This subsection has been enacted to deter employers from attempting to discourage injured employees from submitting a claim to WorkSafeBC.
The Act states that employers must not, by agreement, threat, promise, inducement, persuasion, or any other means, seek to discourage, impede, or dissuade a worker from making or maintaining an application for compensation or receiving compensation under the Act.
This amendment came into force on November 24, 2022, upon Royal Assent.
Non-traumatic hearing loss
Using the table in Schedule 2 – Non-Traumatic Hearing Loss, the maximum amount of compensation for non-traumatic hearing loss can be determined; the maximum compensation amounts have been increased due to the Act.
This increase came into force on November 24, 2022, upon Royal Assent.
Fair Practices Commissioner
Lastly, under Division 7, Fair Practices Commissioner (Section 356), the Act establishes that WorkSafeBC’s board of directors must appoint an officer as the Fair Practices Commissioner to advise on matters of fairness. The Commissioner will be appointed for a term of three years and may be reappointed for an additional three-year term.
The Commissioner may investigate complaints of unfair dealings with WorkSafeBC submitted by both employers and employees. They must also make recommendations to the Board on how to resolve such complaints and address any systematic problems of fairness in the Board’s dealings as indicated by the complaints.
The Fair Practices Commissioner will begin their duties on May 1, 2023. They must prepare an annual report of fair practices by April 30 of each year.
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