Effective January 1, 2024, employers will have new obligations to return injured workers to work. The Workers Compensation Amendment Act (No. 2), 2022 bill ("Bill 41"), discussed here in our article last fall, passed in November 2022, but the coming into force date of certain sections of Bill 41 was unknown until the BC Ministry of Labour's announcement last week, pursuant to OIC 342.
In the new year, under a new "Division 3.1- Return to Work and Other Duties in Relation to Injured Workers" of the Workers Compensation Act, employers will have a duty to cooperate with injured workers, with the objective of returning the workers back to their pre-injury employment or to other suitable work with the employer; the duty to maintain employment will apply to employers with 20 or more workers. Of key importance to the duty to maintain employment is 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.
Now that a coming into force date is set for obligations respecting the return to work of injured workers, the transition provision relating to the duties to cooperate and maintain employment in the Workers Compensation Act (also coming into force on January 1, 2024), is more clear:
- The requirements for an employer to cooperate only apply to workers who were injured up to 2 years before the section comes into force.
- The requirements for an employer to maintain employment only apply to workers who were injured up to 6 months before the section comes into force.
It is important to note that the duty to accommodate an employee's disability is a requirement of human rights legislation, and often is expressly provided for in collective bargaining agreements in unionized workplaces. This duty exists generally and is not subject to these time restrictions. The inclusion of this obligation in the Workers Compensation Act will now allow for any failure of the employer to comply with its obligations to be dealt with through the enforcement and penalty provisions of the Workers Compensation Act.
The Act imposes administrative penalties on employers who fail to comply with the new duties to cooperate and to maintain employment.
The Government information bulletin noted above indicates that WorkSafeBC is in the process of developing relevant policies, and will be engaging in public consultation over the summer.
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