British Columbia is expanding legal protections for workers who, because of an injury that arose out of and in the course of their employment, are unable to earn full wages at their pre-injury work. Starting on January 1, 2024, employers engaging with such injured workers will have two new legislative obligations under the Workers Compensation Act (the WCA).  

The first duty, the duty to cooperate, requires injured workers and their employers to work with one another, and with WorkSafeBC, to facilitate a safe and timely return to, or continuation of, work. This includes requirements for:

  • The employer and worker to contact each other as soon as practicable after the worker’s injury, and maintain communication;
  • The employer to identify suitable work that, if possible, will restore workers to their full pre-injury wages;
  • Workers to assist the employer with identifying suitable work that, if possible, will restore them to their full pre-injury wages; and
  • The employer and worker to provide WorkSafeBC with information regarding the worker’s return to, or continuation of, work.

The duty to cooperate will apply to all employers and workers, except where contact with the employer is likely to imperil or delay the worker’s recovery.

The second duty, the duty to maintain employment, applies only where the worker has been employed by the employer for at least 12 continuous months before the injury. Further, it is not applicable to employers who regularly employ fewer than 20 workers, to individuals who are only considered a worker because they are deemed to be a worker under the WCA, or to excluded employers, workers, or industries as prescribed by regulation. If applicable, the duty to maintain employment requires the employer to either:

  • If workers are fit to return to their pre-injury work, return workers to their pre-injury work or alternative work that is comparable in kind and wages.
  • If workers are fit to return to work, but not to their pre-injury work, offer workers the first suitable work that becomes available.

The employer must also make any accommodation necessary to return the worker to work, up to the point of undue hardship. If the worker’s employment is terminated within six months of a return to work, then the employer is deemed to have breached this duty, unless it can demonstrate that the termination was unrelated to the worker’s injury.

The duty to maintain employment under the WCA ends two years after the date of the worker’s injury if the worker has not returned to work, or is carrying out suitable work, by that date.

Employers should be mindful of these new legislative obligations as they come with the potential for significant cost consequences (including administrative penalties up to the maximum wage rate under section 209 of the WCA, which for 2023 is set at $112,800). It is equally important to be aware that compliance with these new duties does not mean that duties arising from other statutes, such as the duty to accommodate under the British Columbia Human Rights Code, or obligations set out in collective agreements for unionized workplaces, have been satisfied. Those considerations must also be taken into account when managing employee absences from work due to injury.



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