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Introduced as part of the BC government’s Bill 41, starting on January 1, 2024, employers and workers will have a legal duty to cooperate in a timely and safe manner to return-to-work, and certain employers will be required to maintain employment with their injured workers in specific circumstances. These obligations are titled, the duty to cooperate and the duty to maintain employment.

In September, CLR held a meeting with CLR contractors to review the proposed amendments to the Rehabilitation Services & Claims Manual and the Assessment Manual that will address the obligations for the duty to cooperate and the duty to maintain employment following a workplace injury. CLR contractor’s comments were captured in feedback paper submitted to WorkSafeBC.

The following article provides a summary of the new return-to-work requirements that will come into effect January 1, 2024.

The duty to cooperate creates obligations for workers and employers to cooperate with each other, and with WorkSafeBC, to identify and make suitable work available to workers in a timely and safe manner following an injury. Employers and workers will be required to cooperate by contacting each other and maintaining communication, identifying suitable work for the worker that, if possible, restores the full wages the worker was earning before the injury, providing WorkSafeBC with information required to support return-to-work efforts, and doing other related tasks WorkSafeBC may require.

The duty to maintain employment applies only to some employers. If an employer regularly employs 20 or more workers and has employed the injured worker for at least one year before their injury, the employer has an obligation to maintain that worker’s employment, up to undue hardship. For instance, if a worker is fit to return to their pre-injury work, the employer will be required to offer either that pre-injury work or a comparable alternative. If the worker cannot perform their pre-injury job but is otherwise fit to work in another capacity, the employer will be required to offer the first suitable work that becomes available. The legislation also requires employers to make any changes necessary to the work or workplace to accommodate an injured worker unless the changes create an undue hardship for the employer.

An added dispute resolution process allows a worker to complain to WorkSafeBC if the worker feels the employer has not complied with obligations (an employer may do the same). Upon receiving the complaint, a determination must be made within 60 days after the Board has been notified of the dispute (or within a longer period that the Board may determine).

Further, the new return-to-work requirements add, if an employer terminates a worker’s employment within six months after the worker returns to work and begins suitable duties, the employer is deemed to have failed to comply with the provisions unless the employer can establish that the termination was unrelated to the worker’s injury.

To enforce the duty to cooperate & duty to maintain employment, WorkSafeBC will be implementing a support then penalty approach. For example, if an employer is not taking steps to comply with their obligations or address an issue, WorkSafeBC will contact the employer to learn more, discuss the issues and potential barriers to cooperation, and offer support. If non-compliance continues, WorkSafeBC may apply an administrative penalty based on the amount of the wage-loss or other benefits being paid to the worker. Alternatively, if a worker is not taking steps to comply with their obligations, WorkSafeBC will contact the worker to offer support but may reduce or suspend compensation payments if non-compliance continues.

There are many benefits to returning to work as soon as it is safe to do so after an injury but the new return-to-work obligations add an additional emphasis for engaging workers following a workplace injury, working with medical professionals to determine the workers functional abilities, and to offer suitable work during the workers recovery.

Moving forward, CLR will keep members apprised of the new regulations. Please contact Glen Williams, CLR if you have any questions regarding the new return-to-work requirements. For article reference and more information please click here.