June 13, 2024
Rolf Harrison – Workers’ Advocate
GREETINGS, FRIENDS! In January I took over this role from Merrill O’Donnell. Many of you know him for his exceptional advocacy over the years. In the last few weeks before his retirement, I was very fortunate to spend time with Merrill reviewing some of the impressive work he has done representing injured workers and advocating for much needed improvements to the compensation system. I certainly feel grateful for the opportunity to continue this important work. Thank you, Merrill, and all the best in retirement!
Also in January, WorkSafeBC implemented some big return-to-work changes, which you may not have heard about. Some are positive changes, some less so. If you are injured on the job, here are some of the changes you may encounter.
One change is called the duty to cooperate and it applies to all workers and employers. It means you must cooperate with your employer and WorkSafeBC in staying at work or returning to work after an injury.
This requires you to contact your employer as soon as it’s practical after your injury, maintain communication with your employer, assist your employer if they ask to help identify suitable work that restores your full wages and provide WorkSafeBC with information it requires.
It also requires your employer to offer you “suitable work” following your injury — that is, work that is safe, productive and within your abilities.
You continue to have the right to refuse unsuitable modified duties and unsafe work. However, under the new rules, WorkSafeBC now has the power to reduce or suspend your benefits if they think your refusal is unreasonable or that you are not cooperating to their satisfaction. This leaves you with the options of cooperating to WorkSafe’s satisfaction to get benefits reinstated, returning to work, asking WorkSafe to
reconsider or appealing.
To protect yourself in this new system, make a point of keeping a record of all your communication to your employer and WorkSafeBC officials about return to work including voicemails and text messages. Promptly seek medical advice regarding modified duties. If you or your doctor don’t agree that the modified duties are suitable, contact WorkSafeBC staff who will investigate both the offer and your reasons for
refusing it. If you are performing unsuitable modified duties or your employer keeps pressuring you to do so, then ask WorkSafeBC to investigate your employer for breaching its duty to cooperate. WorkSafeBC now has the power to levy penalties against your employer up to $116,700 per infraction.
The second big change is called the duty to maintain employment. This change creates an important new legal requirement for certain employers to accommodate injured workers up to the point of undue hardship. This duty applies to employers who regularly have 20 or more workers and to injured workers who have been employed by the employer for a continuous period of at least 12 months at the time of injury.
The changes bring new protections for workers who are terminated after they return from a work injury. If an employer terminates a worker within six months of their return to work, the employer is deemed to have breached its duty to maintain employment unless the employer can prove the termination was unrelated to the work injury.
If the employer breaches its duty to maintain your employment, you must ask WorkSafeBC to make a determination and do so as soon as possible, but no later than three months from the date of the breach. They will investigate and issue an appealable decision. If the employer breached its duty, WorkSafeBC may pay you an additional amount of up to $116,700 and penalize your employer up to $116,700.
This is a huge change. Previously, WorkSafeBC had no power to grant remedies for an employer’s failure to fulfill their duty to accommodate. This could only be addressed in other forums.
Overall, there are some steps forward here. However, there are also increased obligations for injured workers and the potential for the officials to perpetuate existing injustices, especially when it comes to early return to work. Much will depend on whether WorkSafeBC takes its obligation seriously to penalize employers that repeatedly pressure injured workers into unsuitable modified duties.
By Rolf Harrison
Workers’ Advocate