Return to Work Obligations: Duty to Cooperate and Duty to Maintain
Employment
STAKEHOLDERS SUBMISSIONS SUMMARY
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Perspective
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Comments
1.
Family Services
of the North
Shore
Employer
Generally
neutral
Section 7.1 It would be helpful in this section to have some allowance
for termination not associated with the injury / illness. There may be
times when, for example, an employee was to be terminated but the
injury occurred before the termination meeting was held. This
amendment also does not seem to leave any room for dismissal for
cause if, say, an employee was caught stealing or some other
substantial breach. I realize that the focus is on voluntary termination
by the employer, but this is not clear in the amendment. I would
therefore suggest some exceptions to the Duty to Maintain
Employment be made clear, including terminations for cause,
previously planned terminations and other circumstances not related
to the injury / illness.
2.
Individual
Other
Generally
neutral
Likely my answer represent the perspective of all three above, rather
than just being able to select one. It is not clear what this is all about
and what is the need, so my "Reponses" may have nothing to do what
is being proposed here! For example, in Canada, under the Canadian
Charter of Rights and Freedoms this allows people in Canada to remain
silent when detained by law enforcement. So duty to cooperate seems
to be counter to what the Canadian Charter of Rights and Freedoms
allows Canadians to do. Furthermore, what does it mean the duty to
cooperate? Who is the one that needs to cooperate, and what does it
mean to cooperate? People bring a lot to the table on any subject, and
some are much more capable than others in terms of knowledge and
overall understanding, capabilities and the understanding of the
positives, negatives of situations and at the end of the day how to read
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the potential for risks and their outcomes. In others words some
people on any given subject can be very well educated and
knowledgeable compared to others. Therefore, in terms of duty to
cooperate, depends on who is required to do the cooperating. Being
forced to cooperate with someone who knows little compared to others
does not make any sense, especially if they know much less than the
person who needs to cooperate with the others. Trying to explain
things to the uninitiated is often pointless, as they don't know what
they don't know. Could be a bad recipe for long term safety, as now
might not follow the best processes. Like to know what all this is
about.......Duty To Cooperate? also not sure what Duty to maintain
employment means? Is this some sort of whistleblower legislation? We
already have that in BC and Canada so is this a duplication? There is
many good things that happen as a result of speaking up, however the
term "whistleblower" is often used synonymously with someone who
gossips, an informer, or in other words with negative connotations.
Unfortunately the word ‘betrayal’ tends to emphasize how
whistleblowing is viewed. The issue then is, for those who have been
asked to speak up did they get all the information correct, and is it
factual, otherwise it puts people in tough with their organization and
the people who they work with. Cooperation, and speaking up are a
great thing as all things carried out are scrutinized, and one
scrutinized, someone in position of authority makes an decision on
now what to do, and then everyone moves on. It appears this is about
legislating transparency in a company, but seems to be something that
pits people against each other and could lead to less internal
communication on projects, than more communication. As newton's
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third law suggests "for every action there is an equal and opposite
reaction." This process may create benefits is what people seek,
however there is always the likelihood of disbenefits. As such, what
are the expected outcomes? This may not be the best approach for
expected outcomes over the years.
3.
Catherwood
Towing Ltd.
Employer
Generally
agree
My comment is based on the section called, "Alternative work".
Alternative work is a new term introduced by Bill 41. It refers to work
that is different from the pre-injury job. Under the duty to maintain
employment, if a worker is fit to perform their pre-injury work (or able
to perform it with modifications), the employer is obliged to offer to
return the worker to the pre-injury work or to provide alternative
work. If the employer offers alternative work, it must be comparable
to the work and wages at the pre-injury job. We disagree with the last
sentence. Sometimes due to the extreme safety sensitive nature of a
job, such as in the marine industry, we cannot return someone to the
pre-injury work. If we have to assign alternative or suitable work, it
has to be at a lower rate of pay commensurate with that alternative
work. You cannot expect employers to pay a surgeons wages if that
surgeon cannot return to work as a surgeon, and instead can only
perform as a nurse. The wages issue must be carefully worded to not
put undue hardship on employers. Thank you.
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4.
Individual
Employer
Generally
disagree
Working within the Economic Sector, we are seeing many large forest
processing facilities closing. The reasons are many. I did not absorb
the entire discussion paper, so I am not sure if you included the
situation of an employer not providing timely employment to a
previously injured employee, due to curtailment or shutdown of a
facility? Is there any provisions for those workers? I just learned about
the term: precariously employed individual. It seems in this situations,
the non-union employer works strategically to keep workers from
accessing benefits that are a cost to the employer. Young workers
would be especially vulnerable to this problem. Would your new
policies increase these occurrences? I cannot provide examples, as all
our docs are confidential. Williams Lake might be a good place to look.
5.
Industrial
Scaffold
Services LP
Employer
Generally
agree
I agree with the policy, but I don't see what is necessarily being
changed. Is it just that employers and workers now legally have a duty
to cooperate?
6.
Kaigo Senior
Living
Employer
Generally
agree
From an employers perspective I applaud these changes. I have
previously worked with these regulations in the WCB Alberta
environment for many years and they were great. The duty to
cooperate had saved us countless number of lost time hours and
reduced frivolous claims. Since relocating to BC and working with
WorkSafeBC, I have had numerous frustrating claims where we have
offered suitable modified duties, only to have them rejected by the
worker and received no support from the case manager. We operate
long term care homes for seniors, and we can offer modified duties as
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simple as reading to a resident or playing cards with them. These
proposed changes will also help curb fraudulent and frivolous claims. I
can give examples of workers who were denied time off requests
during busy periods only to report a soft tissue injury and be off on
Worksafe for a few weeks. Others have a minor injury (pinched finger)
and do not respond to offers of modified duties. We find that the
current policy is holding us back from minimizing lost time claims
because the claims manager's hands are tied and workers are taking
advantage of the program. I suspect 30 - 40 percent of our claims are
completely fraudulent or the worker has negative motive. That sounds
harsh, but it seems like the general consensus is that Worksafe is too
busy and understaffed to look into claims that we feel have red flags. I
also suggest that work is done to get more physicians on board with
supporting return to work. We have doctors who see patients only by
teleconference, and write notes to be off work for weeks at a time. We
also have difficulty getting physicians to complete our functional
abilities form properly so we can assess what modified duties can be
assigned to the worker (blank pages, vague information). In my
opinion, these proposed changes can not come soon enough.
7.
Individual
Worker
Generally
neutral
Lacks clarity on the definition of "undue hardship"for the employer
Does not address the power imbalance between employer and
employee slave/master relationship A question board members can
review is why did it take bill c41 to implement such a policy when bc
was the only jurisdiction to not have a " duty to cooperate and
maintain employment policy" Another question for the board to
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consider is how much weight is given to worker feedback in
comparision to other stakeholders?
8.
Progrus
Constructors
Inc.
Employer
Generally
neutral
Progrus has significant concerns regarding the Duty to maintain
employment section of Bill 41. With the seasonal nature of our
industry and the potential for extended work stoppages due to the
wildfire season, implementing modified duty plans without fieldwork
available can bring on undue financial hardship situations for the
employer and potentially an increase to LTI days for minor injuries.
Please consider making an exemption for the Construction Industry.
We agree that when modified duty work is available for workers, the
employer has a responsibility to ensure the worker returns to preinjury conditions or until their condition has plateaued.
9.
Global Total
Care
Employer
Generally
neutral
We believe the status quo should be maintained. We suggest that the
system in it's current form has worked, and would continue to be
effective, so no change is really required.
10.
Victoria
Residential
Builders
Association
(VRBA)
Employer
Generally
disagree
The Victoria Residential Builders Association does not support the
proposed change: Return to Work Obligations: Duty to Cooperate and
Duty to Maintain Employment The document describes existing
legislation and regulations but does not provide any research, and
data, nor describe the extent of the problem WorkSafeBC claims to be
addressing. Presently the Act prohibits an employer from ending a
worker’s employment in retaliation for making a claim. In addition, the
obligation to accommodate a worker’s disability already exists in
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human rights legislation. If a large problem exists or if additional
issues are to be addressed, they should be clearly outlined in the
consultation paper. In addition, the penalties should be accompanied
by a cost/benefit analysis. The proposed penalties on employers
appear to be extreme, even egregious: “For the duty to cooperate, the
penalty amount will generally be equal to the cost of wage-loss or
similar benefits being paid to the worker. It is charged at the end of
every month when the employer is non-compliant and ends when the
employer comes back into compliance. For the duty to maintain
employment, the penalty amount will generally be based on the
worker's average net earnings for the 12-month period before the date
of the injury, or an amount equal to 50% of the maximum wage rate
set out in the Act, whichever is greater.” With respect to costs, the
WorkSafeBC document refers only to WorkSafeBC administration
without any impact assessment on employers. The proposal lacks
cost/benefit analysis, research and clarity regarding the extent of the
problem, and the financial impact on employers if WorkSafeBC decides
penalties are required. It would not be the first time WorkSafeBC has
been in error administering penalties on employers, so much greater
due diligence, research and caution is warranted.
11.
Construction
Labour
Relations
Association of
BC (CLR)
Employer
Generally
Agree
Thank you for the opportunity to provide feedback regarding the above
noted regulatory changes paper. Construction Labour Relations
Association represents firms and corporations engaged in the
construction industry in BC which employ persons covered by
certification or collective agreement in BC with any of the construction
trades.
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We acknowledge and appreciate the Boards work and dedication that
went into the development of 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. Overall, we
have found many instances of a balanced approach being applied to
the duties of the employer, worker, and the Board, to achieve a
worker’s timely return to suitable duties following a workplace injury.
Overall, our priority is to reduce workplace injuries and to support
workers return to duty if an injury occurs.
After reviewing the discussion paper, “Return to Work Obligations:
Duty to Cooperate and Duty to Maintain Employment” we would like to
provide the following feedback for your consideration.
REHABILITATION SERVICES & CLAIMS MANUAL
Duty to Cooperate
Section 154.2(1)(b): (1) An employer must cooperate with a worker
and the Board in the worker's early and safe return to, or continuation
of, work by doing the following: (b) identifying suitable work for the
worker that, if possible, restores the full wages the worker was earning
at the worker's pre-injury work;
In the Unionized construction sector, we can identify suitable work
opportunities and retrain workers using the language within our
Collective Agreements, however; there are different rates for different
job classifications. Due to the language in Collective Agreement, it is
not always possible to restore the full wages the worker was earning at
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the worker's pre-injury work. We would ask that paragraph (b) allows
the flexibility to provide suitable work opportunities which align with
the workers abilities as detailed in a functional ability report and allow
the wage associated with the job duties as defined in the Collective
Agreements. If a suitable duty is identified that is not attached to a
Collective Agreement, the wage should be allowed to equal the wage
associated with the identified position. Overall, there are some
instances where the workers wage can not be re restored to the full
wage the worker was earning at the pre-injury work due to wage grids
included in Collective Agreement language, or duties which are outside
the Collective Agreement that may be entry level. We should not
create a disproportionate system where workers are performing the
same duties at an exaggerated pay difference. Employers can be
transparent and provide details to the Board of suitable work
opportunities with the associated wage attached to the job duty.
Section 154.2(3): (3) The obligations referred to in subsections (1) (a)
and (2) (a) do not apply if, having regard to all of the circumstances,
contact and communication between the employer and the worker are
likely to imperil or delay the worker's recovery.
We believe communication between the employer and worker following
a workplace injury is paramount to an effective recovery at work
program. The quicker the worker and employer communicate about
the injury, the quicker a worker and employer can work together to
identify suitable duties and return the worker to recover at the
workplace. We agree that the wellbeing of an injured worker takes
president over the duties to communicate in subsections (1) (a) and
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(2) (a). For instance, if the workers seeking medical treatment to tend
to injuries, it is reasonable that communication to the employer will be
delayed. Other than seeking medical treatment for injuries, it is
difficult to imagine other reasons why communication in subsections
(1) (a) and (2) (a) cannot be completed immediately after a workplace
injury. Further, we believe there is little reason why communication
from the worker to the employer could not occur after medical
treatment has been provided. We request the Board develop guidance
documents that expand on circumstances where communication after
an injury could be delayed and to stress the requirement to
communicate workplace injuries as soon as practicable.
Section 154.2(5): (5) A determination under subsection (4) must be
made within 60 days after the Board is notified of the dispute or within
a longer period that the Board may determine.
WorkSafeBC states there will be increased costs associated with hiring
new WorkSafeBC staff and making the systems changes to implement
the new return to work obligations. To fulfill the duty to cooperate and
maintain employment, the employer, worker, and the Board all must
work promptly to fulfill their duties. We acknowledge and support the
Board in their pursuit to hire and train the appropriate number of staff
to ensure claims and disputes are addressed and resolved in a timely
manner.
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4.1 Suitable Work – General:
We would like to caution language in 4.1, “Suitable work is work that
is safe Suitable work is work that is safe, productive, and consistent
with the worker’s functional abilities and skills. More specifically:
• The work must be safe, in that it does not pose a health and
safety risk to the worker (e.g., it will neither harm the worker
nor slow recovery) or to other workers at the workplace.
All construction work could be viewed as “unsafe” due to a variety of
existing hazards that are identified and controlled through work
procedures, by providing worker training, and following regulations.
Instead of stating the work must be “safe”, we believe the wording
should state, “work must be performed safely”. This means the
worker is trained on their tasks and work procedures associated with
their duties.
Regarding the second bullet point in 4.1, “The work must be
productive; token or demeaning tasks are considered detrimental to
the worker’s rehabilitation.” We interpret token or demeaning tasks as
menial tasks that are not associated with general duties. We would
like to caution on the danger of the wording of “token or demeaning
tasks” without providing examples of what these tasks would include.
Without further explanation, “token or demeaning tasks” may be
interpreted as duties a worker would rather not do, rather than duties
that are suitable to the worker’s limitations.
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6.1 Board Determinations – Suitable Work and Reasons for Refusal
“Where a worker refuses suitable work, the Board considers the
reasons for refusal and determines if they are reasonable. In making
this determination, the Board considers the requirements of the work
and evidence regarding the worker’s functional abilities and medical
restrictions. The Board has discretion to consider additional factors or
evidence relevant to the case, including but not limited to,
transportation and child-care.”
In many cases, the unionized construction sector has various work
locations and suitable duties may only be available in workplaces other
than the location where the worker was injured. There needs to be
consideration for suitable work at other locations if the location is in a
location of comparable distance to the workplace location the worker
was injured. Further, transportation should not be a barrier to
recovering at work, and the aggregate fund should be considered as a
funding source to cover the cost of transportation for workers
travelling distances, or not being able to operate a vehicle due to
injury. Using the aggregate fund to transport a worker recovering
from injury to and from the workplace may remove financial barriers
for the worker and the cost of transportation would be outweighed by
the claim’s costs of an injured worker not being able to recover at
work.
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REHABILITATION SERVICES & CLAIMS MANUAL
Duty to Maintain Employment
Section 154.3(8): (8) If an employer terminates a worker’s
employment within 6 months after the worker begins to carry out
suitable work or begins to carry out the essential duties of the worker’s
pre-injury work or alternative work, the employer is deemed to have
failed to comply with subsection (3) or (4), as applicable.
We would suggest adding language to account for termination for
cause to section 154.3. If the worker misses work without reason or
was terminated for cause based on other acceptable rationale, these
facts should be considered by the Board when determining if the
employer has failed to comply.
2.1 Continuous Employment for at Least 12 Months
Generally, for the duty to maintain employment, work cessations that
do not sever the employment relationship include, but are not limited
to:
• compensable injuries, mental disorders, or occupational
diseases resulting in time off work;
• layoffs of less than three months, if it is shown that the
intention was for the worker to return to work for the
employer;
• layoffs of more than three months, if the recall date was
stipulated, and the recall occurs;
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• sabbaticals, sick leaves, parental leaves, leaves of absence,
and vacations; or
• strikes and lock-outs.
We have concerns regarding the second bullet point, “layoffs of less
than three months”, specifically how this will be determined. If the
employer states there was no intention of returning the worker to
work, would this be sufficient to clarify there was no intention to do
so? If this is not the case, we request additional guidance on how
layoffs less than three months would be determined.
3.2.1 Suitable Work – General
Suitable work means work that is safe, productive, and consistent with
the worker’s functional abilities and skills. More specifically:
• The work must be safe, in that it does not pose a health and
safety risk to the worker (e.g., it will neither harm the worker
nor slow recovery) or to other workers at the workplace.
Regarding the first bullet point under 3.2.1 Suitable Work – General,
and like our comments under 4.1 of the Duty to Cooperate, all
construction work could be viewed as “unsafe” due to a variety of
existing hazards that are identified and controlled through work
procedures, by providing worker training, and following regulations.
Instead of stating the work must be “safe”, we believe the wording
should state, “work must be performed safely”. This means the
worker is trained on their tasks and work procedures associated with
their duties.
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COR Injury Management Incentive
In addition to the comments above, we would request the Board
consider restoring the Injury Management incentive for the Certificate
of Recognition program (COR). We believe the duties to cooperate
and the duty to maintain employment in these amendments create a
sound base for a functional injury management program. Further, we
believe in the process of workers recovering from workplace injuries at
work and understand the value of using an injury management system
to aid worker recovery. The increased costs for employers to ensure
compliance with these amendments should be offset by an incentive
for employers who achieve the COR standard for injury management.
Moving forward, we should be recognizing employers who are leaders
in injury management by awarding a COR incentive.
CLR and our member companies thank you again for the opportunity
to provide feedback on this discussion paper. Moving forward, we
invite you to reach out if you have any questions or require further
clarification from our response,
12.
Interior Health
Employer
Generally
disagree
Interior Health would like to express a number of comments and
concerns regarding the proposed changes listed in this policy proposal:
1.
C5 - Section 154.3-6 (b)
Two years is a lengthy duration for which the employer must offer
alternative work to an injured worker, particularly if someone has only
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been employed by Interior Health for 1 year and may not have many
transferable skills.
2.
C5 = Section 7.1 – Terminations after Returning to Work
Requiring the employer to keep a worker employed for 6 months
following an injury, regardless of the reason for proposed termination,
may cause additional labour and safety issues depending on the
reasons termination is sought (e.g. if a worker is injured while
blatantly eschewing safety procedures and continues to work unsafely
at work post-injury despite attempts to educate/train the worker).
3.
Page 2 – Duty to maintain employment
“Employers to whom the duty to maintain employment applies will be
required to return the worker to their pre-injury work, alternative work
that is comparable to the pre-injury work, or where the worker is not
fit to do their pre-injury work duties, to other suitable work. The
Employer must make any changes to the work or workplace necessary
to accommodate the worker to the point of undue hardship.”
How does this change Vocational Rehabilitation - i.e. when an
employee is deemed only suitable for work outside the pre injury
Employer? What is the process for deeming undue hardship? As per
WSBC The policy states that generally undue hardship is the point at
which it is too difficult, unsafe, or expensive for the employer to
accommodate the worker.30 The point at which undue hardship is
reached will be fact-specific and different in each situation.31 Right
now an employee can put in a Human Rights complaint … can an
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employee now put in a Human Rights complaint against the employer
while WSBC is conducting this same process with the Employer? We
already have the Human Rights Legislation in place for failing to
accommodate based on the Human Rights principles … we don’t need
WSBC doing the same thing concurrently or at differing times. The
employer will be now responsible for paying for and being involved
potentially in a Human Rights Complaint and a WSBC complaint for the
same thing. What happens when the outcomes from Human Rights
and WSBC differ from each other? An employee should not be able to
do both.
30 The BC Human Rights Tribunal references these criteria in their
definition of undue hardship.
31 The Supreme Court of Canada has stated that undue hardship “can
take as many forms as there are circumstances”. Hydro-Quebec v.
Syndicat des employées de techniques professionelles, 2008 SCC 43 at
para. 12.
4.
Section 7.1 Terminations After Returning to Work
If an employer terminates an Employ due to an organizational change
within 6 months the employer must prove to WSBC if the employee
disputes that termination was not related to their injury. An employee
can dispute this via Human Rights Legislation… why are will running
two processes? Comments as above. This will require more work from
Employee Relations as they will need to be involved.
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5.
Section 7.1 Terminations After Returning to Work
“If the Employer terminates a worker’s employment within 6 months
after the worker begins carrying out their pre-injury work, alternative
work, or suitable work, the employer is deemed to have failed to
comply with their obligations under duty to maintain employment.”
This is unclear i.e. if a worker has injured themselves and goes back to
pre-injury duties but is terminated within 6 months of the injury the
ER is still obligated to pay them up to a year? What if the ER
terminated them after 6 months than no obligation to pay up to a
year? The 12 months definition does not make sense.
6.
Page 11 – Costs
“There will be costs associated with hiring a new WSBC staff and
making systems changes to implement the new RTW obligations. We
anticipate some of the increased costs from implementing the Act’s
new duty to cooperate policy will be offset by reduced costs from
better RTW outcomes – namely timely RTW efforts and the ability of
workers to remain attached to their pre-injury employer.”
What if an employer is already proactive and in compliance and has
been for years with this new policy... do they get a reduction in costs
that are associated with the hiring of new staff, etc. or are all
employers expected to pay? Would be nice if there was an incentive
for those employers already complying with this.
7.
The obligations created by this policy for all employers runs
parallel with the BC Human Rights Code which as an employer we are
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already obligated to up hold. This is a significant cost to the
organizations where an employee has put in a Human Rights complaint
and a WSBC complaint for discriminating against someone with a
disability. What happens when the final decision from WSBC and the
Human Rights Tribunal are different? I don’t believe we need two
different governing bodies doing the same thing. This will lead to
further confusion and hardship for the employer.
8.
Duty to maintain employment Section 4.
This section requires more clarification... in here it speaks to an
injured worker... which assumes this only applies to workers who are
currently disabled for up to 12 months however in the previous
summary it states :"If the employer terminates a worker’s
employment within six months after the worker begins carrying out
their pre-injury work, alternative work, or suitable work, the employer
is deemed to have failed to comply with their obligations under duty to
maintain employment." If a person goes back to pre-injury work are
they not back to full duties or is this referring to employees who are
still injured? Needs clearer wording for optimal understanding of the
new policy.
9.
Section 154.2 (b)
“Identifying suitable work for the worker that if possible restores the
full wages the worker was earning at the worker’s pre-injury work”
If the employer can find suitable work that is not comparable in preinjury wages, as there is no suitable accommodation for comparable
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work due to the employee's functional abilities, does WSBC top up to
their pre-injury wages?
10.
6.1 Board Determinations
“The Board has discretion to consider additional factors or evidence
relevant to the case, including but not limited to, transportation &
child-care.”
Is the Employer now required to find and pay for child care at WSBCs
discretion? The employer should not be responsible to ensure
transportation to and from work or childcare. This is outside of the
employment responsibility.
11.
4.1 Undue Hardship
“In cases where the expense to accommodate the work and or
workplace would result in undue hardship for the employer, the Board
may consider paying for a portion or the entire cost of the
accommodating the worker where such payments are consistent with
the Act and Policy”.
An Appeal and review have been made and undue hardship has been
deemed correct… why is WSBC now saying that a portion or all of an
accommodation will now be paid if WSBC deems it so even though
undue hardship has been correctly applied? Ultimately the employer
will pay in premiums, etc. This is significant costs associated here that
ultimately all employers will be responsible for.
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We sincerely hope that you will take the items raised in the points
above into consideration prior to finalizing proposed changes.
13.
Employers’
Forum
Employer
Generally
Agree
Thank you for the opportunity to provide input into the above
proposed new policies to address return to work planning and other
obligations created by Bill 41.
By way of background, the Employers’ Forum, established in 1992, is
an organization representing employers from major sectors of the
provincial economy, including forestry, mining, oil and gas,
manufacturing, construction, retail, hospitality, agriculture, marine,
tourism, services, professions, technology, food processing, road
builders, utilities, transportation, trucking, security, education, health,
municipal and other public sector employers. Our members are small,
medium and large employers. The primary focus of the Employers’
Forum is the British Columbia workers’ compensation system. We
currently represent approximately 100 employers’ organizations and
employers which, taken together, represent the vast majority of
employers in the Province. Our current membership list is available at
the Employers’ Forum website.
The policies proposed are largely defined by the prescriptive nature of
the enabling legislation, specifically the provisions of Bill 41 – 2022.
We believe our comments will be helpful but feel it necessary to note
that the successful implementation of the legislative / policy
amendments will be nearly entirely determined by operational
considerations.
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The principles espoused by the amendments are not new. The duty to
accommodate and maintain employment for disabled workers has
been an element of HR management in workplaces in British Columbia
for decades; that the legislature found it necessary to embed this
requirement specifically in the Workers Compensation Act suggests
that, in government’s view, the current provisions were not being
effectively accessed or administered.
In our members’ experience, the most common issue related to this
topic is a worker’s failure to engage in the return to work (RTW)
process and WSBC’s inability to address this reluctance. We look
forward to the Board using the provisions brought into place to quickly
and effectively manage the return to work process.
The proposed policies introduce many new terms to the workers
compensation system. The proposed policies are helpful in taking a
step to codify these new terms.
The crux of the proposed policies (and legislation) is a simple concept,
stated as “The employer must, where reasonable, make suitable work
available to the worker. The worker has a corresponding obligation to
not unreasonably refuse suitable work when it has been made
available by any employer.” The legislation states that a worker and an
employer must contact and maintain communication with each other,
identify suitable work, and provide WorkSafeBC with information
required to support return to work efforts.
We have historically agreed with this principle and continue to support
it.
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The proposed defining of “suitable work” as safe, productive, and
consistent with the worker’s functional abilities and skills that, if
possible, restores the worker’s full wages from their pre-injury work.
This has always been the intent of effective programs. We note that
the policy proposed to replacing the term “selective/light employment”
with “modified work.” While developing new nomenclature can signal a
change to those parties involved, we wish to note that whatever
terminology is used, prompt, practical decision making by the Board
will determine if these changes are effectively implemented or fail.
We applaud the proposed policies’ nuanced approach to multiple
employment but must note that it is largely without effect. While the
proposed policy correctly noted non-injury employers can choose to
cooperate with efforts to return the worker to work but that they
cannot be compelled to do so under this statute, those employers are
still subject to accommodation obligations under provincial or federal
human rights legislation, as applicable. These other obligations are not
limited to compensable injuries, nor are they time-defined. This is one
of the reasons we noted to government that we believed these
provisions of Bill 41 to be unnecessary, repetitive, and ultimately
unhelpful.
When considering what work is “suitable,” we note that this concept
has been adjudicated for decades in other Human Rights jurisdictions.
We note that the reference made in the proposed policy, page 9, is
inconsistent with this principle. Specifically, the paragraph:
“Where section 154.2 conflicts with a term of a collective
agreement governing the relationship between the worker and the
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employer, section 154.2 prevails to the extent that it affords the
worker a greater benefit than the term of the collective
agreement. However, this does not displace a term of the
collective agreement that deals with seniority.”
At first blush this may seem to be consistent with the provisions of
1.154.2 of the Act, but we are concerned that this is not consistent
with Human Rights Law. It is a long-held tenant of accommodation
that while it is unreasonable for an employer to simply override the
provisions of a collective agreement without considering other
alternatives that are allowed in the provisions of the collective
agreement, the employer is not precluded from doing so if the
circumstances warrant. While the employer must consider options that
are not unduly unfair to the rights of other employees, ultimately, the
provisions of relevant human rights legislation may override any
provisions of an applicable collective agreement.
We suggest that policy in this area be re-written to discuss the
principle above. In our view, no party in this process can act arbitrarily
relying exclusively on one element of legislation, policy or collective
agreement. An employer may be required to accommodate an
employee even if it interferes with the collective agreement; however,
if the accommodation results in a substantial departure from the
employer’s normal operations as set out in the collective agreement,
they may be able to prove undue hardship. The policy should reflect
this approach.
While the proposed policies attempt to provide a level of insight into
what is an extremely complex and difficult area of law to navigate, we
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feel the proposed discussion of the principles of duty to accommodate
could be more fulsome.
While the policy notes safety concerns are part of the evaluation
process for accommodation, further discussion is warranted. When
considering safety concerns the employer must prove the proposed
accommodation presents an intolerable safety risk to establish undue
hardship. Relevant considerations include the magnitude of the risk
and the identity of those who bear the risk. The magnitude of the risk
often involved three considerations:
(1) the type of risk;
(2) the consequences of the risk; and
(3) the probability of the risk materializing.
The identity of those who bears the risk includes both the employee
being accommodated and others who may be at risk if the
accommodation is implemented. It would be helpful for these
considerations to be discussed in policy.
In considering the financial cost, the employer’s cost in
accommodating the employee is balanced against the benefit to the
employee who requires the accommodation. An employer will most
likely be required to demonstrate an elevated level of costs to support
a finding of undue hardship. However, in some cases, if the benefit to
the employee is minimal, the employer may be able to establish undue
hardship at a lower cost threshold.
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Also missing from this discussion is that accommodation is a “two way
street.” While the Act creates a duty to cooperate, missing from the
discussion of “undue hardship” is the onus on the injured worker to
cooperate with efforts to return to work. This may include assuming
new roles and tasks (and completing training to be able to do so, and
do so safely) or changing scheduled days of work or hours of work.
While the principle is discussed elsewhere in policy, we believe noting
that the principle to cooperate extends to this area in policy is
important.
While this area of law is extremely complex, the vast majority of
issues that our members deal with are relatively straight forward and
can be addressed with better communication between the worker,
employer and attending physician. In the vats majority of
circumstances, small changes lead to solutions. To facilitate this we
believe the policy must includes an overarching element of urgency
and timeliness.
Contemporary and historical literature, WSBC analysis and our
members’ collective experience informs us that longer an injured
worker is off work, the greater the damage is to their physical and
mental health, too their social well-being, and economic status. When
making decision related to returning workers to meaningful
employment time is critical and delays can cause real, irreparable
harm.
We believe there needs to be much more emphasis on prompt, timely
communication. The phrase “as soon as practicable” appears
throughout the statute when describing duties for the employer and
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worker. We believe that urgency should also be applied to WSBC.
While staff are dedicated and work to provide excellent customer
service, reflecting this expectation in policy is an important to signal to
all parties that WSBC is entirely committed, and directed, to making
decisions in a timely manner.
In our view, this absence of urgency will confound successes. There is
no statement to create urgency in communication from any party.
Collaboration and exploration are, by necessity, open and rapid
processes. This must be supported if not by formal timeline, then by
purposive language.
The proposed policies take great pains to define and codify processes
that can lead to an adjudicative decision based on a timeline of
timeline of 60 days. While we appreciate the need for a formal dispute
resolution process, this approach already exists via review and appeal.
There is no value to adding another 60 days de-facto appeal process to
this timeline.
Reliance on a formal dispute resolution process as described can
create absurdities. For example – an employer makes an offer of what
they believe to be suitable work early in the period of disability. The
worker disagrees, and that is referred to WSBC for a decision.
Employers that effectively work with their workers will not wait for that
decision before making another proposal; they will take the feedback
from the worker, and the worker’s physician, and make another
proposal. This subsequent offer may be made as soon as the day after
the first and may lead to another, and another. It is not inconceivable
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that WSBC will be addressing situations week after the fact that have
become entirely irrelevant.
The 60-day time period proposed may be suitable in final adjudicative
settings, but it is far too long in a dynamic environment such as return
to work planning. We believe the timeline should be drastically
reduced to no more than 7 calendar days when considering offers of
suitable employment. This is consistent with our members’ current
practice and is not unachievable.
While this may seem abrupt, we note that the function of this
resolution related to suitable employment is not to provide final
adjudication, but to provide distillation of the point of disagreement
and thereby create solutions. It is the goal of effective return to work
planning to return a worker to safe, meaningful work as they recover
from illness. If there is a point of dispute in this planning process, that
needs to be uncovered and addressed promptly, not weeks or months
later.
There will undoubtedly be cases where disagreement cannot be
addressed in a timely manner. In our view, this is what the
review/appeal process is for. If there is a specific issue that cannot be
resolved in short order, nothing prevents an aggrieved party from
exercising their review/appeal rights. Further, we encourage members
who exercise those rights to continue to work toward solutions, not
relying on the review or appeal process. Filing a review or appeal does
not relieve any party of their duty to continue to cooperate and
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develop solutions, and we believe policy should reflect the principle
that the duty to cooperate continues.
There is no value to adding another 60 days to the review/appeal
process, but there is great value in adding rigor and urgency to the
collaborative planning process while noting that the duty to cooperate
continues.
Thank you for the opportunity to provide comment.
14.
Employers’
Advisers Office
(EAO)
Employer
Generally
agree
Thank you for the opportunity to provide feedback with respect to the
proposed policies regarding duty to cooperate and duty to maintain
employment. Please be advised that the comments expressed in this
correspondence reflect only those of the Employers’ Advisers Office
(“EAO”). We take no position on behalf of the employer community in
whole or in part.
The proposed policy amendments follow the B.C. Government passing
Bill 41 – 2022, specifically addressing the implementation of a duty to
cooperate and a duty to maintain employment following workplace
injuries.
There is no alternative proposal in this discussion paper, the Policy,
Regulation and Research Department is instead asking for feedback
and comments on the suggested new policies.
The EAO takes a position of being generally in agreement with the
proposed amendments. We recognize the importance of promoting a
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safe and timely return to work for injured workers, and we recognize
that positive job attachments can facilitate recovery.
We note that the proposed policies do require the Board to adjudicate
an alleged failure to cooperate within 60 days; however, there is no
similar timeline for the adjudication of a failure to maintain
employment. We question if it would not be prudent to have decision
timelines included in all of the policies, to ensure the ability to address
disputes in a timely fashion. For example, we note that parties to a
prohibited action complaint adjudication at the Board currently wait
upwards of 18 months for a decision and that there is no timeline for
these decisions in either policy or legislation.
We sincerely appreciate the opportunity to provide feedback in this
process. Should you have any questions or concerns regarding this
submission, please do not hesitate to contact the undersigned.
15.
TeksMed
Services Inc.
(TeksMed)
Employer
Generally
agree
Thank you for the consultation and discussion paper on Return to Work
Obligations: Duty to Cooperate and Duty to Maintain Employment, and
the opportunity to provide feedback on the proposed Policy changes
and amendments.
We have thoroughly reviewed the proposed Policy changes, revisions
and amendments and agree in general these accurately reflect Bill 41
that will result in two new duties, the Duty to Cooperate and the Duty
to Maintain Employment, which we understand is to come into effect
January 1, 2024.
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However, we did have concerns with some of the wording and lack of
clarity in some of the proposed Policy. We have outlined these
concerns for your review and consideration below:
Under Appendix A – Draft Policy
Rehabilitation and Services and Claims Manual
Re: Introduction to Return to Work Obligations
-
Page 2: Policy 1:1
Current proposed Policy reads:
“Undue hardship is the point at which it is too difficult, unsafe, or
expensive for the employer to accommodate the worker, which is
determined based on the relevant facts and circumstances of each
case.“
We suggest that the aforementioned proposed Policy be amended
as follows:
“Undue hardship is the point at which it is too difficult, unsafe,
disruptive to operations or expensive for the employer to
accommodate the worker, which is determined based on the
relevant facts and circumstances of each case.”
This acknowledges that a business’s operations are also of
importance and that there could be potential circumstances where
an accommodation would become an undue hardship as it would be
detrimental to the Employer’s operations. While this occurrence
may be rare, it allows consideration in Policy to be taken by
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WorkSafeBC in assessing a return-to-work obligation under this
Policy of essential operations of a business, and the feasibility of
any proposed accommodation or obligation.
We would add that the definition outlined under proposed Policy
4.1 the Duty to Maintain Employment be used as the definition as
well under this section of proposed Policy 1.1 (Page 24 of the
proposed Policy paper). We find this definition to be more specific,
and removes the introduction of any subjective interpretation.
Under Appendix A – Draft Policy
Rehabilitation and Services and Claims Manual
Re: Duty to Cooperate
-
Page 12 Policy 6.1
Paragraph 2:
Current proposed Policy reads:
“Where a worker refuses suitable work, the Board considers the
reasons for refusal and determines if they are reasonable. In
making this determination, the Board considers the requirements
of the work and evidence regarding the worker’s functional abilities
and medical restrictions. The Board has discretion to consider
additional factors or evidence relevant to the case, including but
not limited to, transportation and child-care.”
We have concerns with the last sentence of this paragraph. We
note Bill 41 provides no such requirement for consideration of noncompensable reasons a Worker may refuse work such as childcare.
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We find that historically, this Policy has not been applied
consistently and is left open to subjective interpretation.
We propose that if the offer of selective work is within the same
schedule and location as pre-injury, it should not be considered
reasonable for a Worker to refuse due to transportation, childcare
issues, or any other non-compensable reason if it did not affect
their attendance prior to the injury.
This is an important clarification as the Worker would have been
attending such without issue pre-injury. Transportation, childcare
and other non-compensable factors should only be considered
relevant if the offer of suitable work is outside the normal preinjury, or at a different location from the pre-injury work. This
would reduce unnecessary reviews and appeals, and provide a
much clearer and more objective guideline as to when such factors
should reasonably be considered without prejudice against the
Employer.
-
Page 13 & 14 Policy 7.1.2
Paragraph 2
Current proposed Policy reads:
“Before compensation payments are suspended, the Board will take
the following steps:
• Inform the worker about the duty to cooperate and identify the
specific obligation(s) with which the worker is failing to comply.
• Provide the worker with a reasonable opportunity to comply. “
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While we understand the intent behind Policy 7.1.2 we have
significant concerns surrounding WorkSafeBC’s caseload
distribution, staffing issues and/or other administrative delays
which as of late have been quite significant. We are finding these
issues are causing delays in the timely intervention by a Board
Officer in having the aforementioned concerns addressed or
adjudicated.
If this portion of the Policy is to stand as proposed above, it would
severely prejudice the Employer from a fair and timely adjudication
where a worker refuses to comply. We also find no such
requirement for this outlined within Bill 41, so this is not supported
by Law.
We propose this be replaced with Policy similar to the proposed
Policy under 7.1.1 whereby compensation payments will generally
be reduced effective the date the Board determines the Worker
failed to comply. This places a reasonable responsibility on the
Worker to also comply with their obligations under a claim.
Otherwise, the Employer is unfairly penalized by costs as a result
of the Workers non-compliance.
Doing so would be consistent, less bias, and ensure that even if
delays occur in the adjudication or assessment of a Duty to
Cooperate under a claim, it does not result in unjust costs towards
the Employer. The Worker would still have an opportunity to
explain to WorkSafeBC why they did not cooperate, which the
Board could deem reasonable so no such bias would be made
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against the Worker. Simply stated, the Employer would not be left
to absorb inappropriate costs in circumstances where a Worker fails
to cooperate and/or there is a delay in the Board addressing such.
Under Appendix A – Draft Policy
Rehabilitation and Services and Claims Manual
Re: Duty to Maintain Employment
-
Section 5. Duration of Duty to Maintain Employment
Page 25
Current proposed Policy reads:
“If the worker is carrying out suitable work by the second
anniversary of the date of injury, the employer’s obligation to offer
the pre-injury or alternative work ends.
If the worker is carrying out pre-injury work, alternative work, or
suitable work by the second anniversary of the date of injury, the
obligation to make any change to the work and/or the workplace
that is necessary to accommodate the worker’s injury is ongoing
beyond the second anniversary of the date of injury.”
We find this portion unclear and contradictory. There appears to be
no difference in the assessment of a Worker performing “suitable
work” under paragraph 1 vs paragraph 2.
Rather we suggest this simply be replaced with what is outlined in
Bill 41, Section 154.3 subsection 6 For example:
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All of the Employers’ obligations to maintain employment under
this Policy ends the second anniversary of the date a Worker is
injured if the Worker has not returned to work by that date in any
capacity.
If a Worker has returned to suitable work by the second
anniversary of the injury, the Employer is no longer required to
hold the Workers pre-injury position available, or offer the Worker
alternative work.
We find this would be much clearer to follow, eliminates the
repetitive use of the term suitable work under both circumstances,
and would more accurately reflect the Law as set out in Bill 41. We
strongly feel this should be re-written in a much more clear and
concise manner to follow the Law under Bill 41 which again will
avoid confusion, and unnecessary appeals.
Under Appendix A – Draft Policy
Rehabilitation and Services and Claims Manual
Re: Penalties for Failure to Comply with the Duty to Cooperate
or Duty to Maintain Employment
-
Section 2. Applying a Section 154.5 Administrative Penalty
Page 30 - Paragraph 6
This proposed Policy currently reads:
“Before issuing an administrative penalty, the Board will:
(a)Inform the employer about its duties under section 154.2 and/or
154.3, identify the specific obligation(s) with which the employer is
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failing to comply, and advise that the Board may impose an
administrative penalty for the non-compliance.
(b)Provide the employer with a reasonable opportunity to comply
and/or provide an explanation for non-compliance.”
We suggest that a definition of “reasonable opportunity” or
alternatively, a timeline or official guidance be added which defines
reasonable opportunity. For example, provide the Employer 10
business days at minimum to move into compliance. Should this
not be an option, we would request clarification as to how much
notice must be given to avoid subjective application of this Policy,
as well as to provide the Employer time to become compliant. This
will ensure Policy is applied both consistently and fairly to all
Employers, again avoiding unnecessary appeal.
In closing, we thank you for the opportunity to provide our feedback
on the proposed Policy changes.
16.
DP World
Canada
Employer
Generally
Agree
I am sending this letter as an official response on behalf of DP World
Canada, Ports and Terminal operations on the Waterfront in B.C.
Please see the following comments as part of the participation
process for feedback on Workers Compensation Act Amendment Act
(No.2), 2022 (Bill 41) adding a duty to cooperate and duty to
maintain employment in the Compensation Act:
1.
WorkSafeBC has provided direct assistance with developing
return to work programs and resources on the Waterfront. To
date, there is very inconsistent application of WorkSafeBC
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following own recommended practices. WorkSafeBC is
continuously accepting claims where there is written offers in
place and modified work is available. In the new Act, there
must be consistent application and support of consequences for
both employers and employees if there is a lack of participation
or providing modified duties.
2.
The new requirements are missing that a physician or health
care provider do not, need to review functional abilities and
provide approval to place worker on modified work for
participation. This can be done by a written offer between the
worker and employer. This is integral as walk-in clinics (as
small percentage of people now have doctors due to health
care shortage) are signing workers off with little to no medical
evidence to support that the worker is unfit or unable to
participate in modified work.
3.
Existing issue of compliance with 34.11 not addressed. Weak
medical notes often accepted justifying worker refusals of
suitable modified duties, including sedentary online duties which
can be done from home or the workplace. This issue needs to
be addressed - we need some standard of objective medical to
assess a worker's true condition.
4.
If unable to return to pre-existing work, there needs to be
allowance for the worker and employer to work together on
"acceptable duties." This must include computer-based
training for allotted time, as this is critical to ensure that
Waterfront employees are up to date on hazard awareness
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training for working in high-risk work areas. Additionally, it is
very difficult to place workers at the cost of the employer
based on the safety training and rating positions that workers
are able to do without creating a labour relation issue.
5.
The duty to maintain employment for 12 months. There needs
to specific language that an employer has the ability to
discipline or forgo employment if there is a labour relation
violation that is not related to the injury or incident where the
worker was injured. We can not tolerate nor take on the risk
of having unsafe behaviours be tolerated in the workplace that
danger themselves or others with no consequence.
6.
Lastly, there is a deficit in support and oversight and
management of claims in BC. This has been getting
perpetually worse and there is no recourse or improvement.
Claims Managers are working from home, have no visibility or
understanding of industry work, and are blindly accepting
claims which de-incentives injured workers to return or stay at
place of employment during their recovery.
Suggestions for improvements can include:
a.
Move back to the model of dedicated case managers or
industry specific teams to better understand work,
mechanisms of injuries, and acceptable GRTW plans
b.
Hire and train more Case Mangers and Adjudicators for
BC. Currently there are ~50 Case Managers to cover
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Comments
management and oversight of all claims
17.
Global
Container
Terminals
Canada
(GCT Canada)
Employer
Generally
disagree
c.
Provide prevention support to mitigate claims for high-risk
work
d.
Mandate more than 1 out of office day per quarter. There
is a lack of engagement, understanding and proactiveness
as Case Managers are working from home with little to no
insight to what is happening in industry
1. Changes are vague and worded in a very general sense, with
concern over how the policy will be implemented in a unique and
complex industry as the Waterfront.
2. Existing issue of compliance with 34.11 not addressed. Weak
medical notes often accepted justifying worker refusals of suitable
modified duties, including sedentary online duties which can be done
from home or the workplace. This issue needs to be addressed-we
need some standard of objective medical to assess a worker’s true
condition.
3. Requirement to offer alternate work-how will this be managed? We
currently have a tough time accommodating all the formal GRTWs at
times. Having more workers in supernumery, alternate work roles will
be a real challenge to manage and supervise. This could be a real
make work project for employers and cause LR issues as well. Who is
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supervising? Do we need extra Foremen to do so? Are these extra
bodies posing a risk to themselves or others?
4. The duty to maintain employment will require an employer with 20
or more workers to maintain the employment of an injured worker who
has been continuously employed with that employer for at least 12
months. How is this “continuous employment” to be determined?
There is no definition provided. If it is left up to entitlement officers,
we know decisions will be inconsistent and likely side with employees.
Is this continuous employment in the BCMEA member companies?
What about low seniority workers with 1-2 shifts a week?
5. Employer has obligation to maintain pre-injury work, alternative
work that is comparable to the pre-injury work, or where the worker is
not fit to do their pre-injury work duties, to other suitable work. As
well, the employers must make changes to the work or workplace
necessary to accommodate the worker to the point of undue hardship.
These obligations end on the second anniversary of the worker’s
injury. If the employer terminates a worker’s employment within six
months after the worker begins carrying out their pre-injury work,
alternative work, or suitable work, the employer is deemed to have
failed to comply with their obligations under duty to maintain
employment. How is this to be monitored and maintained on the
waterfront given our dispatch system and transient nature of the
work?
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18.
Organization
Perspective
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Support
Comments
BC Teachers’
Federation
(BCTF)
Worker
Generally
Agree
The BC Teachers’ Federation (“BCTF”) is a society and trade union that
represents over 50,000 public school teachers and associated
professionals in the province.
We are writing to comment on the draft policies (“Draft Policies”) being
proposed to support the Bill 41 amendments to the Workers
Compensation Act (“Act”), and the related consultation paper, “Return
to Work Obligations: Duty to Cooperate and Duty to Maintain
Employment” (July 17, 2023) (“Consultation Paper”).
BCTF Submission on Draft Policies/Consultation Paper
The BCTF applauds legislative enhancements and associated policy
changes that will strengthen an employer’s duty to accommodate
workers injured in the workplace and will provide these workers with
increased job protections pending their return.
The BCTF makes the following submissions regarding the Draft
Policies/Consultation Paper:
1. Submission 1: That the Draft Policies be revised to clarify, for
the public education sector, how the threshold of
employment for a “continuous period of at least 12 months”
applies so as to trigger an employer’s “duty to maintain
employment.”
Section 154.3(1) of the Act creates a duty to maintain employment,
for applicable employers, for workers employed for a “continuous
period of at least 12 months” (the “Threshold”). The Threshold is
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clarified in the draft “Duty to Maintain Employment” policy (“Draft
Policy 1”).
The BCTF submits that, in the public education sector, the
application of the Threshold is potentially unclear. Many members
have full-time or part-time teaching contracts that run for a school
year (sometimes starting mid-year), with intervening school breaks
such as winter or summer breaks.
The BCTF submits that, for workers in the public education sector,
Draft Policy 1 should be revised to clarify that regularly scheduled
school breaks do not sever the employment relationship and such
breaks should be included when calculating the 12-month period.
The BCTF further submits that all leaves statutorily protected by the
BC Employment Standards Act should be expressly identified as
breaks that do not sever the employment relationship.
Specifically, the BCTF submits that Draft Policy 1, policy 2.1, should
be revised as follows:
•
The list of examples of “work cessations” that do not sever the
employment relationship should be expanded to include:
“sectoral-specific regularly scheduled breaks, such as school
breaks in the education sector”, and to include “all leaves
statutorily protected by the BC Employment Standards Act”; and
•
It should be clarified that, for the listed “work cessations” that
do not sever the employment relationship, those work cessations
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are included when calculating the 12-month period of
employment required to meet the Threshold.
2. Submission 2: That the Draft Policies be revised to clarify
that the “duty to maintain employment” includes workers
whose working hours are equivalent to working on a full- or
part-time basis, including those assigned work on an on-call
basis.
Section 154.3(1) of the Act applies to workers employed “on a fullor part-time basis.”
The BCTF notes that, in the public education sector, there are
numerous teachers and associated professionals who are assigned
work on an on-call basis. This includes numerous Teachers Teaching
on Call (“TTOCs”, also known as substitute teachers) who fulfill a
fundamentally important role for our public education system.
TTOCs are employees who are called out on a daily or short-term
basis and often work the equivalent of regular part-time or even
full-time hours over a school year.
3. Submission 3: That the Draft Policies be revised to expressly
recognize the role of trade unions as the exclusive
bargaining agent for unionized workers.
The BCTF is concerned that the Draft Policies, as currently drafted,
do not expressly recognize the important statutory right and
responsibility of trade unions to represent, support and advocate for
their disabled members. The BCTF submits that the Draft Policies
should be amended to clarify that unionized employees should be
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notified of their right to seek support from their trade union (if
applicable).
4. Submission 4: That the Duty to Cooperate is too Onerous for
Disabled Workers.
The Draft Policies create potentially onerous obligations on the part
of workers to cooperate, including through communicating with their
employer and “assisting” their employer in identifying “suitable
work.” Workers who are deemed not to have cooperated are also at
risk of reduced or suspended WCB benefits. The Duty to Cooperate
Policy (“Draft Policy 2”), policy 7.1, also states that “generally”
where there is a suspension of benefits for failing to cooperate,
reinstated benefits will only be prospective.
The BCTF submits that many of the workers who are most disabled,
or most tenuously situated (e.g., facing housing insecurity), are
precisely those who may find it the most challenging to understand
and fully engage in complicated formal processes. The BCTF submits
that all reasonable efforts should be made to communicate with
such workers before benefits are suspended and further submits
that such workers should have their benefits made whole
retroactively once they are able to fully participate in the process.
The BCTF further submits that, when trade union members are at
risk of reduced or suspended WCB benefits for failing to comply with
their duty to cooperate, they should again be reminded that they
can seek union support.
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5. Submission 5: That the Draft Policies be revised to clarify
that the duty to accommodate injured workers must be
properly balanced with the duty to accommodate other
employees in the workplace, who require accommodations
for a variety of reasons.
The BCTF notes that many employees in large public sector
workplaces (such as the public education system) have
accommodation needs that may not be WCB-related, including but
not limited to other medical accommodations, pregnancy related
medical limitations, family status accommodations, etc.
Thank you for the opportunity to make submissions on these important
public-policy issues on behalf of our members.
19.
Hospital
Employees’
Union (HEU)
Worker
Generally
Agree
We appreciate the opportunity to provide submissions with respect to
the draft policies implementing the duty to cooperate and the duty to
maintain employment set-out in Workers Compensation Amendment
Act (No. 2), 2022 (Bill 41) (the “Draft Policy”), as these proposed
policies will have a significant impact on the over 50,000 healthcare
workers the Hospital Employees’ Union (“HEU”) represents.
Healthcare is the sector with the highest rate of injury in British
Columbia, and long-term care workers face the highest rates of
occupational injury of all healthcare workers. In 2019 the average rate
of injury for BC workers was 2.19%. For healthcare workers and longterm care workers in particular those numbers were 3.78% and 8.91%
respectively. In 2022, the average was 2.39% vs. 5.69% for the
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healthcare sector as a whole and an incredible 17.08% for healthcare
workers in long-term care, reflecting the additional risk and impact of
Covid on this group of workers. Our members need employers to fulfil
their human rights obligations so that healthcare workers injured in
the course of their work are able to return to their quality union jobs.
British Columbians also need employers to fulfil their obligations and
keep trained and experienced healthcare workers in this sector where
there are recognized staffing shortages.
Prior to Bill 41 and the Draft Policy, the Board did not play any role in
keeping workers injured on the job employed with the accident
employer. The reality for HEU members was frequently the loss of
their hard-earned union wage rate, but also their seniority, extended
health care benefits, long-term-disability benefits, pension, vacation
and other benefits and protections arising out of their negotiated
collective agreements. The loss of these benefits often amounted to
many thousands of dollars of losses to the worker that was never
considered or compensated in any loss of earnings assessment or
vocational rehabilitation target occupation. Workers could only rely on
their union’s assistance to enforce their rights to accommodations for
disability under the Human Rights Act.
If the Draft Policy has the effect of encouraging and enforcing
employers’ pre-existing obligation to accommodate injured and
disabled workers, then HEU members will be more likely to be able to
return to work with their employer and maintain the negotiated
benefits and accrued seniority they have worked so hard for. This
would be a positive outcome for our members.
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However, the impact ‘on the ground’ of policies intended to improve
the system for workers can have unanticipated consequences. In
2021, the Board introduced a new policy to support legislated changes
to the Act around the projected age of retirement of workers and the
termination of their permanent disability benefits. These changes met
the goal of reducing the barriers younger workers faced in establishing
a later retirement age, but they also introduced new barriers to older
workers who would have worked past age 65, and those who are
injured while working beyond age 65, to have a later retirement date
accepted.
Bill 41 and the Draft Policy bring the Board into an arena previously
dealt with by unions and the Human Rights Tribunal. It is not entirely
clear how these stakeholders, overlapping obligations, and potentially
concurrent processes will interact. We agree with the proposal that
where the Draft Policy provides greater benefit to the worker than
their collective agreement, the Draft Policy will apply, except in
matters of seniority. Beyond this, there is little consideration of what
conflicts or issues may arise or guidance for how the Board will
collaborate with unions, workers, and employers to resolve these
matters.
We strongly support the BC Federation of Labour submissions on the
necessity of sufficient and fulsome training for decision-makers
adjudicating these new obligations due to the impact on HEU
members’ ability to pursue remedies in other venues such as the BC
Human Rights Tribunal. WSBC decisions on accommodations or
compliance with these new obligations, that decision may result in res
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judicata, or another legal venue determining that the issue was
already addressed. As [the joint submission from BC Federation of
Labour, Community Legal Assistance Society, and BCFED Workers’
Compensation Advocacy Group noted], a worker’s right to not be
discriminated against for their disability may interact in unintended
ways with their right not to be discriminated against due to their
family or marital status, or pre-existing non-compensable mental or
physical disabilities. We also agree that straightforward and detailed
decisions will be required and that templates are insufficient to address
the Board’s responsibility to provide clear legal and factual reasoning
for its decisions.
In addition to these broad comments about the Draft Policy, we have
specific concerns related to the work HEU members do.
Comments on Draft Policy Re: Introduction to Return to Work
Obligations –Items 1.2-1.3
The Draft Policy sets out three definitions of work that apply to the
new obligations on workers and employers in its introduction. These
are the worker’s pre-injury work, alternative work, and suitable work.
The Draft Policy also sets out the definition of accommodation and
undue hardship. Currently, the Draft Policy at item 1.2 states that;
“Under the duty to maintain employment, once a worker is fit to carry
out the essential duties of their pre-injury work, an employer has an
obligation to offer to return the worker to either their pre-injury work,
or to alternative work.” Under item 1.3 the Draft Policy states “Under
the duty to maintain employment, where a worker is not fit for the
essential duties of their pre-injury work, the employer must offer the
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first suitable work that becomes available.” These definitions of the
terms do not sufficiently highlight employers’ duty to accommodate a
worker in the duties of their pre-injury work or alternate work before
moving on to offering suitable duties. We recommend that wording
reflect the obligation to accommodate the worker in their pre-injury
work or alternate work prior to offering suitable duties, such as:
“Under the duty to maintain employment, once a worker is fit to carry
out the essential duties of their pre-injury work with any necessary
accommodations from the employer up to the point of undue
hardship, an employer has an obligation to offer to return the worker
to either their pre-injury work, or to alternative work.” Setting this out
in the introduction and definition of terms reflects the reality of what is
required of employers as set out in item 3.1.1of the Duty to Maintain
Employment Draft Policy.
Comments on Draft Policy Re: Duty to Cooperate Item 3- 4.2
We agree with the BC Federation of Labour submission that a worker
should not be held in breach of the duty to cooperate for refusing to
return to unsafe work that contributed to the worker’s injury and that
the safety analysis for a worker returning to their pre-injury job or
alternative work is not sufficiently clear.
For example, HEU members working as care aides, kitchen staff
/dietary aides, and porters have higher rates of injury due to overexertion and repetitive strain injuries. We recommend that
Occupational Health and Safety Ergonomic Regulation ss. 4.46-4.53
should be given specific consideration for healthcare workers when
returning to pre-injury or alternate employment with the accident
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employer. The purpose of sections 4.46 to 4.53 of the Occupational
Health and Safety Ergonomic Regulations (“the Regulations”) is to
eliminate or, if that is not practicable, minimize the risk of
musculoskeletal injury to workers. The Regulations require the
employer to immediately eliminate or minimize the risk of this type of
Musculo-skeletal injuries if a worker reports this type of symptom
(pain, numbness, tingling, etc.) while performing their work duties.
Requiring specific consideration of the Regulations when returning
workers to employment in the healthcare sector recognizes the higher
occupational risk healthcare workers face and ensures that
compensation policy related to pre-injury/alternate/suitable work is
consistent with and reinforces existing occupational health and safety
regulations.
Draft Policy Re: Duty to Cooperate Item 4.2
We strongly support the BC Federation of Labour submission that
return-to-work plans should be designed through collaboration
between workers, employers, care providers, and unions (where a
worker is unionized). This results in more durable and successful
returns to employment and respects the rights of workers to access
advice from their union and medical practitioners. Unions and
healthcare employers are used to their disability management
specialists collaborating to produce effective return-to-work plans.
Draft Policy Re: Duty to Cooperate Item 6.1, 7, 7.1, and 7.1.1
We recommend that the Draft Policy instruct the Board to consider
additional factors or evidence related to the case, including
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transportation and childcare. Over 80% of HEU members are female.
It is an accepted fact that women are more likely to be primary
caregivers. Healthcare workers also work shift-work, where schedules
are variable and long and childcare options are hard to find. Under the
suitable work provisions, employers may offer graveyard or night
shifts to someone working morning shifts or vice versa. Healthcare
workers with dependents may face serious, disruptive childcare issues
during what is merely a temporary period of disablement. This
provision as written provides an opportunity for Board decision-makers
to fetter their own discretion. If the factor or evidence is relevant, the
Board should be required to consider it.
We strongly oppose any provisions in the Draft Policy that do not
confirm that any suspension of benefits imposed on the worker due to
not meeting their obligation to cooperate must be within the worker’s
control. There is a province-wide shortage of physicians, and many
walk-in clinics no longer operate as such post-Covid. More and more
HEU members are telling us they do not have a family physician or
nurse practitioner and can no longer access care at their local walk-in
clinic. The Draft Policy should direct decision-makers to ensure that
the worker is not being held responsible for matters beyond their
control. The Draft Policy should not suspend benefits when a worker
requires additional time to access a medical practitioner to obtain
information the Board has requested. If there are steps that the Board
will require to find a delay or inability to obtain information is
reasonable, these steps should be clearly communicated prior to any
suspension of benefits.
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Draft Policy Re: Duty to Maintain Employment Items 3.2 and
3.2.1
We recommend some clarification in the Draft Policy that an employer
is not to interfere with a worker’s right to seek medical attention. In
the healthcare sector there are employers who have attempted to
keep workers at work immediately following an injury to do light
cleaning rather than allowing them to obtain outside medical attention
and advice or to recover from the initial acute pain associated with an
injury. The requirement to offer the first suitable work available may in
practice result in injured workers being forced to accept work that is
not actively harming them but that is extremely uncomfortable or
delaying their access to be assessed by a physician out of fear they
will be found to not be cooperating with their employer’s offer of work.
We submit there should be some minimum time in which an injured
worker may seek medical attention without being forced to take on
other duties simply because they are not harmful.
Draft Policy Re: Duty to Maintain Employment Item 4
We recommend the Draft Policy clarify an employer’s duty to maintain
employment and accommodate an injured worker when there are noncompensable injuries involved as well. The employer’s duty to
accommodate applies to both compensable and non-compensable
disabilities under human rights legislation, but there is no discussion in
the Draft Policy of how these new obligations interact with co-existing
non-compensable conditions.
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Draft Policy Re: Duty to Maintain Employment Item 5.2
We disagree with the original period of obligation to maintain
employment being continued. Where a compensable injury recurs or
worsens, the duty to maintain employment should also begin again.
Healthcare workers experience higher rates of repetitive strain injuries
that can recur or worsen over time. The duty of their employer to
maintain their employment when their work-related condition worsens
offers them some protection of their collective agreement benefits. For
example, if a care-aide who has worked for the same employer for 25
years suffers a tendinopathy as a result of their repetitive job
activities, has surgery after a year and returns to work, and the
condition recurs or worsens after 6 months, that care-aide should have
the full 2-year period of protection of their employment. Having only
the remaining 6 months of the initial obligation puts this worker at a
higher risk of the employer dragging their feet to run out the clock
resulting in the worker being placed into a WSBC VR plan transitioning
them to non-unionized low-pay work, and the loss of pension, health
care coverage, and other negotiated benefits that are never considered
by the Board.
Draft Policy Re: Duty to Maintain Employment Item 6
We recommend that the Draft Policy explicitly state that in the case of
a dispute over either:
• whether the worker is fit to carry out the essential duties of the
pre-injury work;
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• whether the worker is fit to carry out suitable work; and/or
• whether suitable work is available.
That the worker’s benefits will continue until the Board makes its
decision.
Draft Policy Re: Duty to Maintain Employment Item 7.1
The draft policy provides that when a worker is terminated by the
employer within 6 months of a return to work, there is a rebuttable
presumption that the employer failed its duty to maintain employment.
The Draft Policy should clarify whether an employer who terminates a
worker after 6 months may also have failed its duty to maintain
employment but there is no presumption.
20.
Union of BC
Performers
(UBCP/ACTRA)
Worker
Generally
Agree
Thank you for the opportunity to provide feedback on the proposed
draft policies set out in Workers Compensation Amendment Act
(No. 2), 2022 (Bill 41) (the “policies”).
The Union of BC Performers (UBCP/ACTRA) is an autonomous branch
of ACTRA (the Alliance of Canadian Cinema, Television and Radio
Artists) representing over 8300 professional performing artists in the
BC Motion Picture Industry. BC is Canada’s largest foreign production
hub and North America’s fourth-largest center for motion picture
production. Recent industry assessments (CIERA 2021) indicate our
industry employs an estimated 88,000 workers (including freelancers)
in over 40,500 full-time and equivalent jobs per year.
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The motion picture film industry is different in many ways from other
industries that operate in BC. Our members work on contracts in a ‘gig
economy’ with intermittent, short-term work for unpredictable periods
of time ranging from single ‘day calls’ to working ‘run of show’ on a
series or feature film production. Most commonly, employment lasts
for only a few days, and members can work for multiple employers in
a given week.
Our employers could be large, well established US based studios or
short-term, single purpose companies created for a single production
that dissolve shortly after the project is completed. Although most
productions hire more than 20 workers, it would be rare for any
employer to engage our members (or any film industry worker) for
more than 12 months except on a traditional series that runs for
multiple seasons with recurring patterns of employment for cast
members.
UBCP/ACTRA supports the majority of changes implemented to date in
Bill C41, but the final amendments on the “Return to Work
Obligations: Duty to Cooperate and Duty to Maintain Employment” and
the proposed policy changes present some challenges and concerns for
our industry and our members should they become injured.
The success of these new amendments will depend on how the Board
implements these policies, Board staff and employer training, and the
timely guidance and involvement from the Board to ensure that these
changes will be beneficial for injured workers. More specifically for our
industry, success and compliance will depend on clear policy directives
that address the unique challenges that face short term employers and
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gig economy workers. We trust you will consider our industry specific
feedback when revising the proposed policies.
Feedback – Duty to Cooperate
1. Employers and workers will be required to cooperate with
each other.
a. Employers and workers making contact and maintaining
communication:
• The policies should reflect that all communication between
parties should be conducted in a manner that supports the
injured worker’s mental and physical well being.
• The policies should outline how, when and for how long
employers and workers are required to communicate, particularly
for short-term, transient employers and gig economy workplaces.
• We are concerned that when there is no prospect of continuous,
’alternate’ or ‘suitable work’ that the duty to cooperate and
communicate may do more harm than good to the injured
worker.
• We are concerned, especially for smaller productions that don’t
have the resources, that employers could do more harm than
good because they lack the training and resources to manage
and assist injured workers.
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• The policies should require employers to have dedicated traumainformed trained staff to communicate with workers to prevent
causing stress, harm or retraumatize the worker.
• As recommended in Janet Patterson’s New Directions: Report of
the WCB Review 2019, dedicated Return-to-Work Specialists
would be very helpful to assist all parties. The vast majority of
employers in the film industry do not have the disability
management programs nor the resources to manage these
obligation effectively. Support is needed.
• In the absence of dedicated Return-to-Work Specialists, the
policies should involve the Board earlier and proactively to
protect the worker from any form of claim suppression or
coercion.
• We are very concerned about how this will impact our members
with head injuries and concussions. The bureaucracy of injury
management is incredibly difficult and sometimes impossible for
workers with head injuries to navigate. The policy should again,
provide for a Return-to-Work Specialists or early Board
intervention and employer training to help manage head injury
claims in a way that supports the injured worker. Experience has
shown us, that workers with head injuries need fewer people to
talk to about their claim, not more, especially in the early stages
of their injury.
• The policies should provide flexibility and an avenue for worker
advocacy (e.g., family member, union rep, worker advocate,
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etc.) to assist any injured worker with the duty to cooperate and
the duty to maintain employment.
b. The worker and employer are to contact each other “as soon as
practicable” after the worker is injured, which means “as soon as
reasonably capable of being done”.
• This policy language should be refined as what may be
practicable for the employer may not be practicable, nor helpful
or appropriate, for the injured worker.
• Injured workers may not be mentally and physically ready to
speak to their employer after a serious injury, especially if there
were workplace hazards that caused the injury and there are
existing tensions between the worker and the employer.
• Many of our member are reluctant to report their injuries to the
employer for fear of losing future work opportunities. The
appropriate handling of this initial communication with the
employer is incredibly important to lay the groundwork for
supportive and healthy communications as the claim progresses
and the duty to cooperate continues.
• This speaks again to the need for employers to have trauma
informed training to appreciate what their workers may be going
through to base the “practicability” of when to contact and
communicate with the worker.
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• The policies should again have Return-to-Work Specialists, or the
Board intervene proactively to prevent disputes between the
worker and the employer and help guide the process.
c. Compliance for ‘maintaining communication’:
• The policies should give examples of what is required for
‘maintaining communication’. Each situation will be different, and
the frequency and the necessity of communication will be
situational but the threshold for worker and employer compliance
should be clearly outlined.
d. Medical privacy of workers:
• The policies should provide guidance on medical privacy to inform
the workers of their rights and what information employers can
reasonably ask for when discussing suitable work or
accommodations.
• Employers should have training around medical privacy and only
ask for what is reasonable and necessary to respect the privacy
and dignity of the injured worker.
• Policies should outline the employer’s responsibility to ensure
that any medical information collected is secured and protected.
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2.
Identifying ‘suitable work’ for the worker:
a. The vast majority of work our members do is ‘day call’ work acting,
performing stunts, doing voicework, dancing or background
performing.
• The policies need to clearly outline the obligation of the employer
to identify ‘suitable work’ if the worker’s contract was short term
(e.g., only lasted one or two days).
• Finding ‘alternate’ or ‘suitable work’ for an actor, stunt performer,
voice artist, background performer or dancer, that would restore
their full wages would be very challenging for any film industry
employers and may not be possible. In such cases, we presume
that 4.2 on page 11 - Suitable work-Duty to Cooperate –
would apply and that the parties would simply be expected to
maintain regular communication, as appropriate, in preparation
for future return to work.
• Once our members have been seen on camera, it is not likely
that they can be used for ‘suitable work’ in a different capacity on
that production. It would also be unlikely for the injury employer
to find suitable work for the injured performer on another
production due to the creative nature and processes of the film
industry.
b. Return-to-work is best done in consultation with the worker, their
medical team, the employer, union reps and advocates. The Board
is proposing to eliminate Policy #34.11 of the RSCM II which
references a multi-party consultation involving the worker, the
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employer, care-providers, and the worker’s union when developing
light or modified duties. We believe this language should be
retained in the for better return-to-work outcomes.
3. Providing WorkSafeBC with information required to support
return to work efforts
a. The policies need to reflect how this will work in a gig economy
with short term employment or with employers that cease to exist
within a matter of weeks.
4. The obligations do not apply if, having regard to all of the
circumstances, contact and communication between the
employer and the worker are likely to imperil or delay the
worker's recovery.
a. We support this language, but the policy needs to clarify who
makes this determination.
• We support the worker and care providers in consultation the
Board to make this determination.
• Again, early intervention and involvement of a Return-to-Work
Specialist or the Board would be helpful in these situations.
b. If physicians are necessary for this step, we question if forms
would be required and would physicians be compensated for the
required paperwork by the Board?
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• Accessing timely medical appointment is problematic and the
potentially adding more paperwork to physician’s workload
should be contemplated carefully.
• We suggest the Board modifies the Physician’s First Report
(F8/F11) in the Return-to-work Planning section to ask if contact
and communication with the employer is contraindicated.
c. The policy should clearly outline guidelines and considerations for
the mental health as well as physical health of the worker in this
determination.
Feedback – Duty to Maintain Employment
a. The policy to create a Duty to Maintain Employment creates a
special problem for the film industry because of the
intermittent nature of employment of its workers.
• If one adopts a narrow view of the employment relationship and
who is identified as “the employer,” very few workers in the film
industry would be covered by the duty to maintain employment,
as it is presently drafted.
• This is because production companies in the film industry usually
incorporate different “shelf companies” for taxation and other
reasons to produce each season of what is in reality a single
production.
• If each one of those shelf companies is considered to be a
separate employer, very few workers in the film industry would
be considered to be employed by one employer for a continuous
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period of over 12 months, which is required by the draft Policy in
order for the Duty to Maintain Employment to apply.
b. However, the draft Policy states the following at page 20:
"2.1.2 Workers with a Recurring Pattern of Employment
Contracts
“A worker with a recurring pattern of employment contracts with
the employer is considered to be continuously employed where:
o
There is a demonstrated pattern of extending or renewing the
worker’s employment over a period of at least 12 months
before the date of injury; and
o
The evidence does not show that the employment was
officially terminated with no intention to rehire the worker
in the future.
The recurrence of the contracts may be consecutive, seasonal, or
with minor breaks between periods of employment."
• That language is on its face helpful to film industry workers
because it appears to allow the Board to consider successive shelf
companies of the same production company to be one employer
and therefore makes it less difficult for workers in the film
industry to satisfy the 12-month requirement. We urge the Board
to apply Article 2.1.2 when interpreting continuous employment
in the film industry.
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• We also note that the Board in Arrow/Zombie/The Flash/The 100
et al (aka Hannah-Rachel Production Services Limited)
Administrative Penalty Order #: IR201615891031A, RFS #:
201515891079Z (May 9, 2016), upheld upon Review Reference
#R0208068 (February 17, 2017), considered a number of shelf
companies of the same production company to be one employer.
c. A related issue arises due to the continuing transition from
linear television production (broadcast and cable) toward
streaming. Streaming productions are typically limited to 10
episode "seasons", many of which are not renewed after a
first “season”.
• One effect of this change is that over time, the number of film
industry workers who may be considered to be continuously
employed for over 12 months will be reduced. In effect, this
means that the Duty to Maintain Employment is likely to apply to
fewer and fewer workers in the film industry.
• This raises the question of whether workers in the film industry
should be exempted from the 12-month requirement, or whether
that the requirement should be shorter. We urge the Board to
consider whether the film industry should be exempted from the
12-month requirement, or whether the requirement applicable to
the film industry should be reduced to a shorter period, say 3 or
6 months.
When considering the practical application of these new amendments
and policies for the Motion Picture Industry, unless there is more inPage 65
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depth guidance and policy directives from the Board for short term
businesses and gig economy industries, we foresee significant
logistical and compliance challenges ahead for both the employers
and injured workers in our industry.
21.
Workers’
Advisers Office
(WAO)
Worker
Generally
Agree
We write to respond to the July 17, 2023 discussion paper containing
an invitation for feedback on the proposed policy changes to support
the new return to work obligations created by the Workers
Compensation Amendment Act (No. 2), 2022 (Bill 41). As always, we
thank the Policy, Regulation and Research Division for the opportunity
to provide comments.
The focus of this submission will be to draw attention to a potential
injustice arising to workers concerning the assessment of their loss of
earnings, where workers are only temporarily accommodated by an
injury employer because of the duty to maintain employment, after
sustaining a permanent disability. Before moving into a discussion of
the potential injustice, we will first focus on a brief discussion of
aspects of the proposed policy regarding the duty to maintain
employment that may benefit from further clarification.
Observations and Opportunities for Clarification
Within the proposed policy titled ‘Duty to Maintain Employment’, under
section ‘4.1 Undue Hardship’, it is explained that WorkSafeBC (the
Board) may consider paying either a portion or the entire costs to
accommodate a worker, where the expense of an accommodation
would result in undue hardship for an employer. However, as
accommodation requirements can either be temporary or permanent,
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it is unclear what will happen to a worker’s entitlement to benefits in
cases where the Board agrees to pay for either a portion or the entire
cost of accommodation. Specifically, while the proposed policy
provides the Board with discretion, it does not indicate how this
discretion may impact the amount and duration of benefits available to
workers. For example, if the Board exercises discretion to only
temporarily pay a portion of the costs to accommodate a worker, and
the employer only accommodates the worker so long as the Board is
covering a portion of the costs, the benefit entitlement for the worker
after the Board concludes support of the accommodation agreement
becomes unclear, despite the fact that the Board may assess an
administrative penalty against the respective employer in accordance
with section 154.5.
Furthermore, we respectfully submit that the explanation of employers’
obligations in relation to the duty to maintain employment are not
made all that clear by the text of section ‘5. Duration of Duty to
Maintain Employment’ of the respective proposed policy item and may
benefit from minor revision. As an example, while the proposed policy
item confirms that the duty to maintain employment generally expires
at the second anniversary of a work-injury, it does not provide
guidance on the issue of for how long an employer is obligated to offer
suitable work that becomes available, in accordance with section
154.3(3), where a worker is fit to work and has returned to work but
the work offered by the employer does not meet the requirements of
either suitable or alternative work. We note this example given the
possibility that a worker may become ‘fit to work’ shortly before the
expiry of the obligation on the employer, and the potential for
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confusion about the duration of the obligation given the absence of
direction within policy for the respective circumstances.
Injustice Arising in Connection with Duty to Maintain Employment
In our view there is a potential injustice arising to workers where the
duty to maintain employment applies and where they have been
accommodated by their injury employer, given the limitation on the
duration of the duty to maintain employment and given the absence of
a mechanism in policy to reassess a loss of earnings assessment
where workers are only temporarily accommodated by their employer
at the time of their injury.
To help articulate the potential injustice, we submit the general
example of workers that are accommodated by their employer in a
well-compensated position. These accommodated positions are
available as a result of the workers’ established connection with the
employers and provide compensation that is above labour market
averages due to the work-environment or as a reflection of
relationship between the workers and employers. However, if the
respective accommodated position is not available to the workers, it is
likely that they would have difficulty competitively competing for
similar employment or attaining similar earnings in similar
employment. Within these accommodated positions, the workers are
compensated at a wage that is equivalent to the wage-rate accepted
on their claim, and they are able to restore their pre-injury earnings.
The proposed policy titled ‘Duty to Maintain Employment’ suggests
that an employers’ obligation to accommodate workers extends
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beyond the second anniversary of the date of injury, where the worker
is carrying out pre-injury work, alternative work, or suitable work by
that date. Section 154.5(1), arising from Bill 41, confirms that the
Board may impose an administrative penalty on an employer for failing
to comply with provisions related to either the duty to cooperate or
duty to maintain employment. As such, the Board may impose a
penalty for failing to continue to accommodate a worker. However,
while the Board may impose an administrative penalty in response to
an employer’s failure to continue to accommodate a worker, the Board
cannot at any time force an employer to continue to employ a worker.
While the proposed policy titled ‘Introduction to Return to Work
Obligations’ provides the following definition of Suitable Work, and
identifies a distinction between suitable work and the concept of a
suitable occupation, it is our view that this is not sufficient given the
potential injustice:
Suitable work is distinct from the concept of suitable occupation,
although there is some overlap. Where a worker’s disability is
temporary, suitable work will generally be considered a suitable
occupation for the purposes of determining entitlement under
section 192 (see Item C5-35.21). However, where a worker’s
disability is permanent, suitable occupation includes a focus on
long-term availability of the work, and maximizing the worker’s
long-term earnings potential, which are not requirements for the
purposes of suitable work (See Item C6-40.00).
Policy Item C6-40.00 of the Rehabilitation Services & Claims Manual,
Vol. II, allows for the assessment of a worker’s loss of earnings to be
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based on the job attained by a worker, unless there is evidence that
the job is transitory and jobs at another level of earnings within the
occupational goal would be available to the worker in the future. In
practice, the assessment of a worker’s loss of earnings is conducted
not long after the Board accepts that they have sustained a permanent
injury, particularly in situations where they are returning to work with
their injury employer.
While the above noted text addressing the distinction between suitable
work and a suitable occupation confirms that there is a focus on the
long-term availability of work, we note the likelihood that there would
be asymmetrical information available to workers and employers
regarding the availability of an accommodated position in the long
term. We submit that some employers may become motivated to
withhold such information from the Board at the time that a loss of
earnings assessment is being completed for a worker by nature of the
impact that the information would have on the process and
assessment of the worker’s loss of earnings.
Returning to our general example, workers in such circumstances may
face a significant injustice should they assume that their
accommodated position is indefinite in duration and consequently
forego an appeal of their loss of earnings decision. This could create an
inherent injustice should the employer subsequently decide to
conclude the availability of the accommodated position.
Given that there is currently no mechanism in policy for a loss of
earnings assessment to be reassessed where an employer concludes
the availability of an accommodated position, or where the duty to
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maintain employment fails, workers would likely face having to apply
for an extension of time from the Chief Review Officer in order to be
able to present their case that they have sustained a loss of earnings
because the accommodated position is no longer available.
Notably, while the employer may face an administrative penalty, and
while the worker may be granted up to one year of compensation in
accordance with section 154.3(12), arising from Bill 41, where the
duty to maintain employment fails, there are a number of factors that
may impact the degree of injustice to the workers, such as:
(i) The age of the worker at the time of the work-injury, and the
corresponding number of years to retirement; and,
(ii) The difference between the earnings available to the worker in
the accommodated position versus the earnings that would be
generally available in other jobs within the occupational goal.
In other words, where workers have a significant number of years
remaining until retirement, or where other jobs within an occupational
goal are generally compensated at a much lower rate than workers
receive in an accommodated position, it may be the case that the one
year of compensation that they may be entitled to as a result of the
failed duty is insignificant in comparison to the value of the loss of
earnings that is foregone as a consequence of the circumstances.
Summary
In summary, the Workers’ Advisers Office submits that there are
opportunities for clarification within the proposed policy on the ‘Duty to
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Maintain Employment’, as the guidance on the duration of the duty
may benefit from closer alignment with the text of section 154.3.
Furthermore, we submit that a potential injustice arises to workers as
a result of an absence of a mechanism in policy to allow for the
reassessment of a loss of earnings where a duty to maintain
employment fails and where an accommodated position is no longer
available. While the potential injustice may not affect all workers, we
submit that the injustice could be avoided by relatively minor
amendments to policy to allow for a loss of earnings assessment to be
revisited where there has been a failure of the duty to maintain
employment or a deferral of the loss of earnings assessment where
workers are accommodated as a result of the duty to maintain
employment.
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22.
to
24.
BC Federation
of Labour
(BCFED),
Community
Legal
Assistance
Society (CLAS),
and BCFED
Workers’
Compensation
Advocacy
Group (WCAG)
joint
submission
(collectively
referred to as
BCFED/CLAS/
WCAG)
Worker
Neither
or
Neutral
See attachment A-22
25.
BC Nurses’
Union (BCNU)
Worker
Generally
Agree
Thank you for the opportunity to comment on the above noted
Discussion Paper. The BC Nurses’ Union represents more than 48,000
members in the British Columbia healthcare industry. As the unified
voice of nurses working in healthcare, significant weight should be
attached to our position and recommendations on this issue.
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Background
The July 17, 2023 Discussion Paper Return to Work Obligations: Duty
to Cooperate and Duty to Maintain Employment proposes policy for
guidance on sections 154.1 through section 154.5 regarding the duty
to cooperate in the return to work and the duty to cooperate in the
return to work. It is expected that the sections of the Act will be given
Royal Assent to be effective January 1, 2024, and the policy will also
be effective at that point.
The relatively short time to make submissions in response to the
Discussion Paper and this period falling over the challenging summer
months has resulted in the BC Nurses’ Union being unable to give this
matter the suitable degree of attention and appropriate degree of
response that a policy matter of this importance deserves. Since this
law and policy is new territory for BC it is an overriding general
recommendation that the new law and policy be closely monitored and
that a new review of the policy be initiated within one year of
introduction.
Issues
1. Should the proposed policy in the July 17, 2023 Discussion
Paper be adopted?
2. Are there other policy items or actions that should be
implemented for guidance on the duties to cooperate in the
return to work and the duty to maintain employment?
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General Observations and Recommendations
The proposed policy is embarking upon new territory for BC. It is
therefore recommended by the BC Nurses’ Union that the effectiveness
of the new policy and the results and impact on all parties be closely
monitored. There should be new proposals and consultation
based on the effectiveness and results one year from the
January 1, 2024 date of the new policy.
The BC Nurses Union put several questions to the PRRD for this
consultation. Among the question was what are the numbers of claims
that have benefit decisions as a result of similar RS&CM II #34.11
refusal of suitable selective light duties or penalty assessments on
employer for not returning workers to work. The response was the
Board did not have any data on benefit decisions as a result of RS&SM
II #34.11 and there is no current provision for penalties to employer
for failure to return employees to work. We are sorely disappointed the
Board does not have data on #34.11 benefit decisions. This is
important information in several aspects including informing on
expectations on the new duty to cooperate in RTW.
We understand why there would be no data on orders or penalties on
matters that there is no current regulation against.
Nevertheless, it will be critically important to know what the
effectiveness both the employer and the worker side of the duties to
cooperate are. There should be a requirement that detailed
statistics be kept on claim benefit decisions and on penalties
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arising from the duties to cooperate in the RTW and to maintain
employment.
Discussion Paper Proposed Policy
The Discussion Paper proposes that policy item #34.11 be deleted.
This is policy that has been tested by actual practice over years.
Theoretically the new policy provisions may be able to replace #34.11
but that is a big unknown. RS&CM II #34.11 should remain in
policy for the one year period to monitor the effectiveness of
the new policy. Whether #34.11 should remain in policy or not
should be a matter for consideration in the evaluation of the
effectiveness of the policy after one year.
The BC Nurses’ Union has concerns on the balance of the provisions
between worker interests and employer interests. Making decisions on
paying wage loss benefits including the termination of or reduction of
wage loss because of conclusions the worker did not accept suitable
work is a common feature of the workers’ compensation system,
particularly under #34.11 selective Light Duties. The new law and
policy will expand the duties and obligations of workers on the duty to
RTW. It is probable that there will be a significant increase in the
numbers of claims terminated or reducing the level of wage loss
benefits to workers as a result of these new provisions.
We note that section 7.1 Reduction or Suspension of Benefits is at
page 25/53 to 27/53 of the Discussion Paper containing significant
detail on the process to reduce or suspend benefits. There are only 2
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short paragraphs on section 7.2 Administrative Penalty only one of
which has any details,
The Board will generally not impose an administrative penalty if
the employer has taken all reasonable steps to comply. This
involves consideration of what a reasonable person would have
done in the circumstances.
Failure to cooperate in RTW or maintaining employment are penalty
assessment matters. These matters are addressed through Prevention
Services. Our understanding is that this will continue to be addressed
through prevention services. Penalty assessments are difficult and
unwieldy process. It is much more difficult and uncommon for the
Board to make penalty assessment decisions than to make claim
benefit decisions. The claims management and prevention side of
WSBC are generally quite separated. In order to ensure balance and
effectiveness there needs to be balanced management of employer
and worker duties to cooperate. There should be structures and
processes in place to give claims management leadership and
control over employer duty to cooperate obligations in a similar
manner claims management has control over worker’s duties to
cooperate. This should include liaison processes on penalty
assessments.
BC Nurses’ Union Proposals for Additions
There is a requirement for workers’ to bring offers of employment to
their physicians. We suspect that there will be a resultant substantial
increase in worker bringing description of offered employment to their
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physicians for determination of whether the work is suitable. The BC
Nurses’ Union asked senior WorkSafeBC management if the provision
of such medical reports would be covered under claims. We were
advised it would. This is certainly not clearly apparent in policy. It may
not be apparent to workers, care providers, employers and initial
Board decision makers. Item 6.1 Board Determinations – Suitable
Work and Reasons for Refusal states in part,
Where there is a dispute about whether the work that has been
made available is within the worker’s functional abilities or medical
restrictions, failing to provide details of the work duties to the
physician, qualified practitioner, or other recognized health care
professional will generally be considered an unreasonable refusal.
The policy should make clear that fees for practitioners to
review and consider suitability of available work will be
payable under the claim by the Board.
Benefits should be continued to be payable without reduction
when a determination of suitable work by the Board is in
process.
The Act provides that,
Section 154.4:
(1) If section 154.2 or 154.3 conflicts with a term of a collective
agreement that is binding on an employer in relation to a
worker, the section in conflict prevails to the extent that it
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affords the worker a greater benefit than the term of the
collective agreement.
(2) Subsection (1) of this section does not operate to displace a
term of the collective agreement that deals with seniority.
It seems clear that when section 154.2 or 154.2 provide greater
benefit than a Collective Agreement (CA) the Act will apply. We were
asked what will apply when CA provisions provide greater benefit than
the Act. We were advised the law and policy does not address this
circumstance. In most cases a CA provision will provide greater
benefit. CA provisions for BC Nurses’ Union members include an EDMP
for return to work that has been in place for years and provides
substantial y greater benefit. The BC Nurses’ Union has extensive Duty
to Accommodate (DYA) CA provisions and assistance which are also
substantially better than the RTW provisions in the new law and policy.
I would venture to say the CA and grievance provisions will provide
substantially greater benefit in maintaining employment. The Act and
policy are silent when CA provisions provide greater benefit. This is
unacceptable. There should be clear guidance for when a CA provision
provides greater benefit,
The policy should provide that where CA provisions provide
greater benefit the Board will defer to and support the CA
processes for RTW and maintaining employment.
There is a lack of language on the approach to the RTW and
maintaining work processes. We believe that a good theoretical
example is set out in the description of VR processes in policy as being
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collaborative. We say theoretical because in our view despite the
collaborative process being described in policy VR Services
unfortunately does not always take such a collaborative process
approach. Nevertheless it would be positive to have the RTW policy
emphasize a collaborative approach. The policy for duty to
cooperate on RTW should emphasize this must be done in a
collaborative approach inclusive of all parties including the
worker, worker caregivers, and workers representatives.
26.
Council of
Construction
Associations
(COCA)
Employer
Generally
agree
I am writing on behalf of COCA, which represents 20 construction
associations, with members from all parts of British Columbia, from
every sector and from every size of company, both union and nonunion.
Thank you for the opportunity to comment on the Return to Work
Obligations: Duty to Cooperate and Duty to Maintain Employment.
We understand that the policy closely follows the legislation and there
is currently no opportunity to change this legislation.
We are concerned about the lack of a financial incentive (through COR
RTW) that was formerly provided by WorkSafeBC to encourage
employers to establish an effective Return to Work program. This was
terminated by WSBC even though the incentive helped to encourage
more employers to become more directly involved in active RTW
initiatives. WorkSafeBC has the authority to reinstate this program —
or a similar one — without legislative change. We would like to see
the reinstatement of this progressive initiative.
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We value the clarity that is provided by the above Discussion Paper
with respect to the new legislation.
We have quoted at length from the Discussion Paper and Draft
sections of the Rehabilitation Services & Claims Manual (RSCM)
because we support the clarity of this precise language.
There are a number of sections of the policy that we support, because
they provide a reasonable balance under certain situations. We
support the following language, which clarifies these situations.
Specifically, we support the policy language that defines “undue
hardship”.
S. 154 (5) An employer must, to the point of undue hardship, make
any change to the work or the workplace that is necessary to
accommodate a worker.” (Workers’ Compensation Act)
This language is essential in order for employers, workers and
WorkSafeBC to have a common understanding of what constitutes an
“undue hardship”. We realize that not every situation can be defined,
but this section provides a sound basis for beginning to set out the key
factors.
In addition to the duty to cooperate shared by all workers and
employers, some employers will also have a duty to maintain the
employment of an injured worker. Bill 41 imposes this duty on an
employer who regularly employs 20 or more workers, where the
worker has been continuously employed with the employer for at least
12 months.
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The nature of this obligation is determined by the worker’s level of
fitness to work. Where a worker is fit to return to their pre-injury
work, the employer is required to offer either that pre-injury work, or
alternative work that is comparable to the pre-injury work. Where the
worker is unable to perform the pre-injury job, but is fit to work in
some other capacity, the employer is obligated 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, to the point of undue hardship. While this is a new obligation
under the Act, a similar obligation already exists in human rights
legislation. To promote consistency across human rights and workers
compensation schemes, the general principles created by Bill 41 are
aligned with the principles found in federal and BC human rights
legislation.” (Discussion Paper p.8)
The Discussion Paper notes that:
“The employer’s obligations under the duty to maintain employment
depend on whether the worker is “fit to carry out the essential duties”
of their pre-injury work. While this terminology, introduced by Bill 41
is new, the concept is similar to WorkSafeBC’s current practice of
making determinations about whether a worker is “able” or “unable” to
perform their pre-injury job demands.
The proposed policy provides guidance on how to determine which
duties are “essential” to the job. The list of factors (including
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frequency, duration, and impact of the duty on the job) are similar to
factors considered by other jurisdictions.”
The Draft Rehabilitation Services & Claims Manual helpfully sets some
of the factors that determine “undue hardship”:
“4.1 Undue Hardship
While employers are expected to take all reasonable and practical
steps to accommodate an injured worker, employers are not required
to accommodate a worker if it would cause undue hardship.
Undue hardship is the point at which it is too difficult, unsafe, or
expensive for the employer to accommodate the worker. What
constitutes undue hardship will be based on all relevant facts and
circumstances of each case. The Board may consider any or all of the
following factors when determining whether accommodating the
worker would cause undue hardship:
•
safety risks to the worker, other workers, or others;
•
financial ability to accommodate;
•
disruption of operations;
•
interchangeability of the work force and facilities;
•
size of the employer’s operation; and
•
impact on other workers.
This list is not exhaustive, and any one factor may be determinative of
whether accommodating the worker would cause undue hardship.
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If the Board determines that undue hardship would result from
accommodating the worker, the employer is not required to provide
accommodation. However, the employer must consider if there are
other options that would accommodate the worker without undue
hardship.
In cases where the expense to accommodate the work and/or the
workplace would result in undue hardship for the employer, the Board
may consider paying for a portion or the entire cost of accommodating
the worker where such payments are consistent with the Act and
policy.” (RSCM, (p.24)
We strongly support this approach and this language. It will help to
mitigate a situation where the accommodation would result in “undue
hardship “ for the employer.
We also support the clarity of the language that deals with the
potential termination of a worker. We will ensure that our members
are aware of this provision and of the need to carefully document the
reasons for any termination.
“7.1 Terminations After Returning to Work
If the employer terminates a worker’s employment within six months
of returning to work (whether the worker returns to their pre-injury
work, suitable work, or alternative work), then the employer is
deemed to have failed its duty to maintain employment, unless the
employer can establish, on a balance of probabilities, that the
termination was not related to the worker’s injury.
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Where a worker’s employment is terminated within six months of
returning to work, the worker may request the Board to determine if
the employer has failed its duty to maintain employment. The worker
should request a determination within three months of the termination
of employment. The Board may, but is not required to, consider the
worker’s request if the request is made more than three months after
the worker’s employment is terminated.”(RSCM p.26-27)
We support the language used in both the Duty to Cooperate
legislation and the Draft Policy. The language recognizes that a
successful return to work requires the cooperation of workers and
employers.
This clear language should help all of the parties to work together
increasing the chances of a successful return to work.
“3. DUTY TO COOPERATE
The employer and the worker must cooperate with each other and with
the Board in the worker’s early and safe return to, or continuation of,
work.
The employer must cooperate by:
•
contacting the worker as soon as practicable after the worker is
injured. As soon as practicable means as soon as is reasonably
capable of being done.
•
maintaining communication with the worker. This means
maintaining communication throughout the worker’s recovery,
as appropriate in the circumstances.
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•
identifying suitable work for the worker that, if possible,
restores the full wages the worker was earning at the worker’s
pre-injury work.
•
providing the Board with information the Board requires in
relation to the worker’s return to, or continuation of, work.
•
The worker must cooperate by:
•
contacting the employer as soon as practicable after the worker
is injured. As soon as practicable means as soon as is
reasonably capable of being done.
•
maintaining communication with the employer. This means
maintaining communication throughout the worker’s recovery,
as appropriate in the
•
circumstances.
•
on request of the employer, assisting the employer to identify
suitable work that, if possible, restores the full wages the
worker was earning at the worker’s pre- injury work.
•
providing the Board with information the Board requires in
relation to the worker’s return to, or continuation of, work.
Sections 154.2(1)(d) and 154.2(2)(d) enable the Board to create any
other requirements of an employer or a worker to elicit their
cooperation with each other and with the Board in the worker’s early
and safe return to, or continuation of, work. For the purposes of these
sections, the Board requires:
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•
the employer to cooperate with the worker and Board by,
where reasonable, making available suitable work the employer
has identified, and
•
the worker to cooperate with the Board by not unreasonably
refusing suitable work when it has been made available by any
employer.
The worker and the employer do not have to contact or maintain
communication with each other if, having regard to all of the
circumstances, the contact and communication are likely to imperil or
delay the worker’s recovery.”
“4. SUITABLE WORK
4.1 Suitable Work – General
Suitable work is work that is safe, productive, and consistent with the
worker’s functional abilities and skills. More specifically:
•
The work must be safe, in that it does not pose a health and
safety risk to the worker (e.g., it will neither harm the worker
nor slow recovery) or to other workers at the workplace.
•
The work must be productive; token or demeaning tasks are
considered detrimental to the worker’s rehabilitation.
•
The work must be within the worker’s functional abilities and
medical restrictions.
•
The worker has, or is reasonably able to acquire, the necessary
skills, competencies or qualifications to perform the work.
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Suitable work arrangements may involve duties different from the preinjury work, or some modification of the pre-injury duties and/or hours
of work. Consultation with the worker, employer, physicians, qualified
practitioners and/or other recognized health care professionals may be
part of identifying suitable work.
4.2 Suitable Work – Duty to Cooperate
The successful development of suitable work arrangements depends
on the cooperation of all parties in the workplace. If possible, suitable
work should restore the full wages the worker was earning at the
worker’s pre-injury work.
Suitable work can be made available by the employer at, or soon after,
the date of injury, or after the worker has participated in some form of
medical treatment or rehabilitation. The worker must not unreasonably
refuse suitable work when it has been made available by any
employer.
In cases where the worker is not fit to work, or no suitable work is
identified or is currently available, the worker and the employer are
expected to maintain regular communication, as appropriate, in
preparation for a future return to work.”
(RSCM p. 9-10)
We support this balance of responsibility as fair to both workers and
employers.
The legislation covering the Duty to Maintain Employment is complex
and we recognize that it is fixed within the legislature. The Draft
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RSCM provides useful guidance through the legislative language with
reference to Section 154 of the Workers’ Compensation Act.
Section 154.3 provides some employers have a duty to maintain the
employment of an injured worker when certain conditions are met.
Depending on the circumstances, maintaining employment may
involve returning the worker to their pre-injury work, providing
alternative work, or providing suitable work. The duty to maintain
employment includes making any change to the work or workplace
necessary to accommodate a worker to the point of undue hardship.
The duty to maintain employment is in addition to an employer’s duty
to cooperate under section 154.2.
Where section 154.3 conflicts with a term of a collective agreement
governing the relationship between the worker and the employer,
section 154.3 prevails to the extent that it affords the worker a greater
benefit than the term of the collective agreement.
However, this does not displace a term of the collective agreement
that deals with seniority.
2. WHEN DUTY TO MAINTAIN EMPLOYMENT APPLIES
The duty to maintain employment under section 154.3 applies in
relation to an employer and a worker of the employer if, because of an
injury that arose out of and in the course of the worker’s employment,
the worker has been disabled from earning full wages at the work at
which the worker was employed at the time of the injury. In this
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policy, employer means the injury employer. Injury includes an
occupational disease and a mental disorder.
In this situation, the employer has a duty to maintain employment of a
worker if:
•
the worker has been employed by the employer, on a full- or
part-time basis, for a continuous period of at least 12 months
before the date the worker was injured; and
•
the employer regularly employs 20 or more workers.” (RSCM p.
18-19)
There is also an important provision for fixed term contracts that we
support:
“5.1 Duration for Fixed Term Contract Workers
In most cases, the duty to maintain employment is not intended to
extend the time frame of employment agreed to at the time of hire. If
a worker was hired on a contract, the employer’s duty to maintain
employment only requires the employer to return the worker to preinjury alternative work, for the remainder of the contract term that
was interrupted by the compensable injury.
However, in cases where there is a demonstrated pattern of extending
or renewing the worker’s employment in the past, with little or no
break in employment, the Board may conclude that the duty to
maintain employment should extend beyond the term of the contract
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and be governed by the normal rules for duration of duty to maintain
employment.
When calculating the duration of the employer’s duty to maintain
employment for a worker employed on as seasonal basis, the offseason period is included. However, during the off-season period, the
employer’s obligation may not be in effect.” (RSCM p.25)
This important text recognizes the significance of the term contracts
that are used in the Construction Industry.
We also support the wording that describes the process to be followed
in the event of a disagreement between the worker and the employer:
“The worker and the employer are encouraged to work together to
resolve disagreements that arise regarding the duty to maintain
employment.
If the worker or the employer notifies the Board of a disagreement
which cannot otherwise be resolved, the Board must determine:
•
whether the worker is fit to carry out the essential duties of the
pre-injury work;
•
whether the worker is fit to carry out suitable work; and/or
•
whether suitable work is available).” (RSCM p. 26)
It is important that both parties share the goal of return to work and
this language will support that goal.
We support the following language in the policy document:
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“If the Board is satisfied on a balance of probabilities that the
employer has failed to comply with the duty to cooperate and/or the
duty to maintain employment, the Board may impose an
administrative penalty under section 154.5. The Board considers the
individual circumstances of each case when determining whether to
impose a penalty.
The Board will generally not impose an administrative penalty if the
employer has taken all reasonable steps to comply with its obligations.
This involves consideration of what a reasonable person would have
done in the circumstances.
Before issuing an administrative penalty, the Board will:
a) Inform the employer about its duties under section 154.2
and/or 154.3,identify the specific obligation(s) with which the
employer is failing to comply, and advise that the Board may
impose an administrative penalty for the non-compliance.
b) Provide the employer with a reasonable opportunity to comply
and/or provide an explanation for non-compliance.
If the employer remains non-compliant, the Board will issue a decision
letter informing the employer that the Board is imposing a penalty.
The letter will provide information regarding the duty the employer
failed to comply with, the amount of the penalty, and the right to have
the decision reviewed and appealed.” (RSCM p. 30)
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This wording sets out a fair process that requires the open exchange of
information before any decision is reached on a possible administrative
penalty.
As a collateral to this policy on administrative penalties, we support
this wording: "The Board may reduce the penalty for a non-compliant
employer who subsequently comes into compliance. If the Board
reduces the penalty, the penalty amount may be pro-rated based on
the number of weeks the employer was non-compliant following the
Board’s decision to impose he penalty, up to a maximum of 52 weeks.”
(RSCM p. 31)
We have commented at length on the Discussion Paper because of the
complex nature of the subject matter and the importance of the words
in the draft Discussion Paper.
We continue to strongly support the value of returning injured and
diseased workers to safe, productive employment.
27.
United
Steelworkers
Union District 3
(USW)
Worker
Neither
or
Neutral
The United Steelworkers (USW) represents 35,000 members
throughout British Columbia. Our members are working in many
diverse industries and services. Any one of those members could
experience a workplace injury, and some of those injuries could result
in serious injuries, some may be life altering. This is a reality for all
workers in the province anyone could experience a workplace injury.
Helping workers recover and return to a normal life as well as
returning to their jobs where that is possible must be the goal of the
Worker Compensation system. If the injuries prevent a worker from
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returning to their previous work, it is also the Workers Compensation
Boards (WCB) duty to help those workers find the most appropriate
accommodation possible. It is what every worker wants and expects
from a system that was created to help injured workers.
The Bill 41 requirements to develop this policy and WCB efforts in the
development are positive steps. USW believes this is one of the most
important policies for workers.
As stated in the submission from the Community Legal Assistance
Society and the BCFED Workers’ Compensation Advocacy Group.
“Bill 41 creates a new role for the Board in upholding and enforcing the
duty to accommodate and the related duty to cooperate in the returnto-work process. If implemented properly, these amendments have
the potential to be beneficial for workers.”
“But if implemented improperly, these amendments designed to
protect workers’ jobs could have profoundly unfair consequences. The
duty to accommodate injured workers engages fundamental human
rights principles that transcend the workers’ compensation system.”
The USW hopes that the first statement is how this policy is developed
and is a benefit to workers and that the later statement does not
become the reality for injured workers. Many Injured workers face
serious struggles in their recovery and a policy that will help in that
recovery is what is required.
The USW strongly supports the submission of CLAS and BCFED
regarding the WCB’s proposed draft policy. We urge WCB to review the
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submission from CLAS and the BCFED. This provides a very thoughtful
review of the proposed policy with some important additional
amendments. These outlined some extremely important elements that
will help workers return to meaningful employment at their workplace.
If that is not achieved, then the best possible accommodation must be
strived for. USW urges the Board to adopt the proposed amendments.
As well, we call on the Board to allocate appropriate resources and
efforts to ensuring the effective development, implementation, and
enforcement of these vital changes.
We appreciate the opportunity to provide our comments on the
proposed regulatory amendment.
28.
TELUS Health
Employer
Generally
agree
We participated in the pre-consultation meeting of June 5th regarding
the proposed policy changes. We are members of the Employers’
Forum of BC and have reviewed the August 31st submission sent to
you by its president, John Beckett. We endorse the views put forth in
that submission. Thank you.
29.
Canadian Union
of Public
Employees
British
Columbia
(CUPE BC)
Worker
Neither
or
Neutral
We are providing this letter of support for the submission made by the
BC Federation of Labour earlier this month entitled “Submissions with
respect to the Draft Policy on Return-to-Work Obligations: Duty to
Cooperate and Duty to Maintain Employment” regarding the
WorkSafeBC consultation on Return-to-Work Obligations.
It is very important for workers to have a progressive system of both
workers compensation and health and safety in BC. The
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recommendations in the BC Federation of Labour submission advance
these objectives. We ask that WorkSafeBC implement the
recommendations as soon as possible and make the additional
changes to related Guidelines, Policies, Practice Directives, training,
etc. as required.
CUPE BC further encourages WorkSafeBC to immediately implement
the recommendations of the 2019 Janet Patterson New Directions
report at:
New Directions: Report of the WCB Review 2019 | WorkSafeBC
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ATTACHMENT A-22
Submission to the
WCB
Submissions with respect to the
Draft Policy on Return-to-Work
Obligations: Duty to Cooperate
and Duty to Maintain Employment
September 2023
BCFED Submission: Part 6, Asbestos abatement licensing
May, 2023
Page 1 of 20
ATTACHMENT A-22
Authority
Thank you for the opportunity to provide submissions with respect to the draft policies
implementing the duty to cooperate and the duty to maintain employment set-out in the
Workers Compensation Amendment Act (No. 2), 2022 (Bill 41) (the “Draft Policy”). These are
joint submissions from the BC Federation of Labour (the “Federation” the “BCFED”), the
Community Legal Assistance Society (the “CLAS”), and the BCFED Workers’ Compensation
Advocacy Group (the “WCAG”).
Sussanne Skidmore, President
BC Federation of Labour
Kevin Love, Lawyer
Community Legal Assistance Society
1000_23sub_kl_sm_bcfed_submission_bill_41_policy.docx/km
BCFED CLAS Submission: Bill 41 Policy
September 2023
Page 2 of 20
ATTACHMENT A-22
The BC Federation of Labour
The Federation represents more than 500,000 members of our affiliated unions, from more
than 1,100 locals working in every aspect of the BC economy. The Federation is recognized by
the Workers’ Compensation Board (the “Board” the “WCB”) and the government as a major
stakeholder in advocating for the health and safety of all workers in BC and full compensation
for injured workers.
The Community Legal Assistance Society
The CLAS is a non-profit law firm that has served people in BC since 1971. The CLAS provides
legal assistance and works to advance the law to address the critical needs of those who are
disadvantaged or face discrimination. The CLAS operates the BC Human Rights Clinic, which
provides legal services to people with respect to provincial human rights complaints. The CLAS’s
Community Law Program provides legal services to people facing poverty, including injured
workers who have exhausted the workers’ compensation appeal system and need help
accessing the courts.
The BCFED Workers’ Compensation Advocacy Group
The WCAG is an independent association of worker advocates operating throughout British
Columbia. These advocates include union representatives, lawyers and worker advocates
employed at various non-profit organizations.
BCFED CLAS Submission: Bill 41 Policy
September 2023
Page 3 of 20
ATTACHMENT A-22
Overview
Bill 41 creates a new role for the Board in upholding and enforcing the duty to accommodate
and the related duty to cooperate in the return-to-work process. If implemented properly,
these amendments have the potential to be beneficial for workers. The Board will likely be able
to adjudicate disputes more quickly than other decision makers. Unlike other decision-makers
that only become involved after the damage is done, the Board can act proactively with the
goal of preventing job loss and other discrimination. If a breach of the duty to maintain
employment is established, the Board can pay benefits to the worker without forcing the
worker to pursue collections against an employer who may not be willing or able to pay.
But if implemented improperly, these amendments designed to protect workers’ jobs could
have profoundly unfair consequences. The duty to accommodate injured workers engages
fundamental human rights principles that transcend the workers’ compensation system.
Quality adjudication is critical. More guidance is needed in the Draft Policy to ensure these
decisions are made with the appropriate care and expertise. Further, the duty on workers to
cooperate may become oppressive and unfair if implemented without appropriate procedural
protections and in a manner divorced from the realities that many injured workers face.
BCFED CLAS Submission: Bill 41 Policy
September 2023
Page 4 of 20
ATTACHMENT A-22
Summary of recommendations
Introduction to Return-to-Work Obligations policy
•
Consolidate the definition of suitable employment into a single section.
•
Provide a more robust definition of “productive work.”
•
Confirm that work is suitable only if it contributes to a durable and sustainable
reintegration into the workforce.
Duty to Cooperate policy
•
Confirm that a worker is not required to return to their pre-injury or alternate work if it is
unsafe to do so, which must include an assessment of whether the employer has
addressed appropriately any hazards that caused the worker’s injury.
•
Confirm that a worker will only be expected to pursue or accept suitable employment
with a new employer if they cannot return to work with the accident employer.
•
Retain the elements of policy #34.11 of the Rehabilitation Services and Claims Manual
Volume II (the “RSCM II”) confirming that return-to-work plans should be developed
through consultation involving the worker, employer, care providers and the worker’s
union, if any.
•
Provide more guidance on how the Board can help parties resolve disputes by agreement.
•
Provide Return-to-Work Specialists to assist the parties.
•
Create guidance on when the Board will extend the 60-day time limit for decision.
•
Confirm that it is generally reasonable for a worker to follow the advice of their care
providers.
•
Confirm the Board’s obligation to investigate thoroughly before rendering a decision.
•
Ensure there is no deduction from wage loss and/or vocational rehabilitation benefits
while a dispute concerning the employer’s duty to maintain employment is being decided
under s. 154.3(7) of the Workers Compensation Act, R.S.B.C. 2019 c. 1 (the “WCA”).
•
Confirm that any assessment of what is reasonable must consider the worker’s individual
circumstances and any barriers impeding compliance.
•
Confirm that the Board should first seek to support the worker in overcoming any barriers
to compliance before turning to punitive measures.
•
Ensure that any obligations placed on a worker are actually within the worker’s control.
BCFED CLAS Submission: Bill 41 Policy
September 2023
Page 5 of 20
ATTACHMENT A-22
Duty to Maintain Employment policy
•
Confirm that the primary objective is to return the worker to their pre-injury job with any
necessary accommodations.
•
Ensure that human rights issues are adjudicated by a dedicated team with the necessary
human rights knowledge and experience.
•
Confirm that the Board must request and obtain all relevant information before rendering
a decision.
•
Ensure that decisions about a worker’s human rights are clear and comprehensive.
•
Coordinate with the Workers’ Advisers Office, the Employers’ Advisers Office and other
legal service providers to ensure appropriate legal advice is available.
•
Confirm that the Board will not adjudicate the duty to accommodate on its own initiative
unless the adjudication is necessarily related to another adjudication the Board must
make.
BCFED CLAS Submission: Bill 41 Policy
September 2023
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ATTACHMENT A-22
The need for practice and operational guidance
Before turning to the substance of the Draft Policy, it should be noted at the outset that much
of the success or failure of implementing Bill 41 will be dictated by practice and operational
guidance, as opposed to policy. Indeed, many of the suggestions in this submission will require
a practice directive or other operational guidance to implement. However, without knowing
what practice and operational guidance may follow, we have included a broad range of
suggestions in this submission.
Data collection will also be critical to ensure the Draft Policies are achieving their purpose. The
overarching purpose of the duties to cooperate and maintain employment is to better protect
workers’ jobs and promote labour force attachment through a cooperative, multi-party
approach. But there is a real concern that this goal could be turned on its head if the Draft
Policies are not implemented with care. For example, the Board’s pre-existing policy framework
to reduce benefits for workers who are deemed uncooperative may mean that the vast
majority of sanctions end up being imposed on workers because it is easy and familiar to the
Board. In contrast, administrative penalties for employers who do not cooperate in the returnto-work process is a new concept. So while the goal of these new duties is largely to protect the
interests of injured workers, it may be that in practice the vast majority of sanctions are actually
imposed on workers, not employers. Data collection is needed to ensure the Draft Policies are
achieving the desired result.
BCFED CLAS Submission: Bill 41 Policy
September 2023
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ATTACHMENT A-22
Submissions on the Introduction to Return-to-Work Obligations
policy
Draft Policy Item 1.3 - Suitable work
a) Consolidate the definition of suitable employment into a single section.
The definition of “suitable work” is somewhat scattered throughout the Draft Policy. There is a
general definition of suitable work in the “Key Terms in Return-to-Work Obligations” section.
However, the meaning of suitable work is further refined in item 4.1 of the Duty to Cooperate
policy and item 3.2.1 of the Duty to Maintain Employment policy. For clarity, the meaning of
suitable work should be described in a single section. Any nuance in applying that general
definition in specific situations can then be developed later in the Draft Policy.
b) Provide a more robust definition of “productive work.”
Within the definition of suitable work, more detail is needed on the meaning of “productive
work” to ensure that certain employers do not turn accommodation into a form of claim
suppression. For example, policy 19-02-07 “RTW Overview and Key Concepts” in the Ontario
Workplace Safety and Insurance Board’s (“WSIB”) Operational Policy Manual confirms that
productive work means work that provides an objective benefit to the employer’s business,
including tasks that:
•
•
•
•
form part of the injury employer's regular business operation;
permit the worker to acquire new job skills;
generate revenue (aside from reducing WSIB costs); or
increase business efficiency or lead to business improvements.
c) Confirm that work is suitable only if it contributes to a durable and sustainable
reintegration into the workforce.
The Draft Policy should also confirm that employment is suitable only if it supports a durable
and sustainable return to the workforce. Employment that does not set the worker on a path to
long-term reintegration into the labour market is not suitable. Short-term work arrangements
and modifications can certainly support this goal, but only if they will realistically create
experience, opportunities or work-force attachment that will help the worker over the longterm. Put another way, suitable work should set the worker on a path for long-term success in a
suitable occupation.
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September 2023
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ATTACHMENT A-22
Submissions on the policy addressing the Duty to Cooperate
Draft Policy Items 3, 4.2 and 7.1.1
a) Confirm that a worker is not required to return to their pre-injury or alternate
work if it is unsafe to do so, which must include an assessment of whether the
employer has appropriately addressed any hazards that caused the worker’s
injury.
A worker should never be held in breach of the duty to cooperate for refusing to return to
unsafe work. The Draft Policy creates three categories of work: the pre-injury job, alternative
(comparable) work and suitable work. The definition of “suitable work” requires an assessment
of whether the proposed work is safe. However, the safety analysis for a worker returning to
their pre-injury job or alternative work is less clear.
The fact that a worker retains the essential skills of their pre-injury job does not necessarily
mean it is safe for the worker to return to that employment.
For example, suppose a worker is injured by a piece of machinery that was maintained
improperly. The worker may have the essential skills to return to that job, but unless the
employer has corrected the safety issue, the worker will be put at further risk. If a worker has a
right to refuse unsafe work under s. 3.12 of the Occupational Health and Safety Regulation, it
makes little sense to suggest that a worker will have breached their duty to cooperate by
refusing to return to an unsafe work environment simply because they have the essential skills
of the job. This is not likely the Draft Policy’s intent, but as written, there is uncertainty about
whether the safety requirement set out in the definition of suitable work also applies to preinjury or alternative work.
For clarity, the Draft Policy should confirm that workers will not be held in breach of the duty to
cooperate for refusing to return to unsafe work, even if they have the essential skills to do so.
In particular, the Board must assess whether the employer has addressed appropriately any
hazards that contributed to the worker’s injury.
b) Confirm that a worker will be expected to pursue or accept suitable employment
with a new employer only if they cannot reasonably return to work with the
accident employer.
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September 2023
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ATTACHMENT A-22
The Draft Policy creates a duty to accept suitable employment offered by any employer, not
just the accident employer. As currently framed, the Draft Policy governing the duty to
cooperate may conflict with and undermine the duty to maintain employment.
The primary objective of the duty to maintain employment is to return the worker to work with
the accident employer whenever reasonably possible. If a worker is fit to carry out the essential
duties of the pre-injury work, the employer must offer the worker their pre-injury work or
comparable alternative work. If the worker is not fit to carry out the essential duties of the
preinjury work but can perform other work, the employer must offer the worker the first
suitable work that becomes available.
The Draft Policy is problematic because it seems to imply that a worker must cooperate by
accepting suitable employment with another employer even if it is reasonable to assume that
the worker can return to work with the accident employer. Suppose a worker is injured at work
and believes they can return to their pre-injury job. However, the accident employer
unreasonably refuses to re-employ the worker. The worker seeks assistance from the Board,
which might result in the accident employer understanding and complying with their duty to
accommodate and re-employ the worker. It would be nonsensical to suggest that a worker in
these circumstances could have benefits withheld for non-cooperation if they refuse suitable
employment with some other employer while they are still in the process of asserting their
right to return to their old job.
The Draft Policy should be amended to confirm that a worker has an obligation to accept
suitable employment with another employer only if the worker cannot reasonably be
reemployed by the accident employer.
Draft Policy Item 4.2 - Suitable work – Duty to Cooperate
a) Retain the language in policy #34.11 of the RSCM II confirming that return-to-work
plans should be developed through consultation involving the worker, employer,
care providers and the union, if any.
Return-to-work plans of all kinds are best developed through communication and collaboration
involving the parties, unions and care providers. It is critical that the injured worker be actively
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September 2023
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ATTACHMENT A-22
involved at all stages and that the needs of the injured worker be centred. The new adjudicative
process in Bill 41 should not shift the priority away from collaborative consensus building,
which remains the preferable way to develop return-to-work plans. Policy #34.11 of the RSCM II
– which the Board now proposes to eliminate – references a multi-party consultation involving
the worker, the employer, care providers and the worker’s union when developing
light/modified duties. This language should be retained in the Draft Policy.
Collaboration will be especially important in cases where the worker is pursuing remedies
under a collective agreement, and it is not clear entirely which system provides greater
protection. It may not be appropriate or frankly desirable for the Board to rush to formal
adjudication in these circumstances. However, the Board, with certainty, can support the
parties and help facilitate mutually agreeable solutions, which is ultimately the best result for
everyone.
Draft Policy Item 6 – Board involvement
a) Provide more guidance on how the Board can help parties resolve disputes.
The Draft Policy states that workers and employers should be encouraged to settle their
differences but provides no guidance to Board staff on what actions they can take to assist the
parties. The Draft Policy should provide examples of action that Board staff can take to help
resolve a conflict. An exhaustive list is impossible obviously, but some guidance would be
useful. The list could include:
•
Educating the employer or the worker about their obligations;
•
Facilitating communication between the parties and among care providers;
•
Facilitating new medical opinions to address any gaps in the medical information;
•
Seeking to understand any barriers that may be impeding cooperation and helping
the parties overcome them;
•
Helping the parties explore solutions they may not have considered; and
•
Exploring potential accommodations to address the worker’s or the employer’s
concerns.
BCFED CLAS Submission: Bill 41 Policy
September 2023
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ATTACHMENT A-22
b) Provide Return-to-Work Specialists to assist the parties.
Building on recommendations in “New Directions: Report of the WCB Review 2019,” the Board
should provide dedicated Return-to-Work Specialists to assist the parties. Some larger
employers will have established disability management programs, but many smaller employers
will not. The obligations in the Draft Policy may be new and unfamiliar territory for many
employers. And the skills and knowledge needed to navigate effectively the return-to-work
process and communicate safely with injured workers goes well beyond a working knowledge
of the legislation and policy. Although the duty to maintain employment does not apply to
smaller employers, the duty to cooperate does. Providing additional support and resources on
the front end will produce better results and hopefully avoid disputes.
c) Create guidance on when the Board will extend the 60-day time limit for decision.
If a dispute cannot be resolved, Bill 41 requires that the Board make a decision within 60 days
of being notified, or such longer time as the Board may allow. The Draft Policy provides no
guidance on the circumstances that may justify extending the 60-day time-period. Again, a
comprehensive list is not possible or desirable, but some assistance for decision makers is
needed. Situations that may warrant an extension might include:
•
cases where the Board requires more than 60 days to obtain the information it needs to
render a decision with confidence, particularly from the worker’s care providers;
•
cases where the dispute will be resolved without adjudication as described in s.
154.2(4)(b) of the WCA if more time is provided to the parties;
•
cases where a dispute is referred for adjudication by a party, but more than 60 days is
needed for the other party to reasonably complete the task at issue; and
•
cases where a dispute concerning the duty to cooperate is linked substantially to the
outcome of a dispute concerning the duty to maintain employment, which is not subject
to the 60-day time-limit.
Draft Policy Item 6.1 - Board determinations – Suitable work and reasons for
refusal
a) Confirm that it is reasonable generally for a worker to follow the advice of their
care providers.
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September 2023
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ATTACHMENT A-22
The duty to cooperate by accepting suitable employment presents unique challenges and
considerations. These disputes are often complicated and have the ability to do harm if not
handled with care. The Board too often approaches disputes in an adversarial way, pitting the
worker’s care providers against a Board Medical Advisor in a battle of the experts. This
approach can put the worker between a rock and a hard place by forcing the worker to return
to work against the medical advice of doctors they have come to trust in order to avoid having
benefits cut off. This is particularly difficult for older workers and workers with more complex
health needs who have long-standing and trusting relationships with their care providers.
The Draft Policy should confirm that refusing light duties on the advice of the worker’s treating
physician will generally be considered reasonable. If the Board has concerns about the
physician's opinion or their understanding of the light duties, then it is the Board's responsibility
to contact the worker's physician to seek clarification. A substantial degree of consensus can be
achieved often if the Board proactively facilitates communication and information sharing
between the worker, the employer, care providers and the union, if any. This should be the
Board’s first priority.
If the worker’s care providers maintain that the work is unsuitable, it is unreasonable to expect
a worker to return to that work before they have seen opposing medical evidence confirming
the work is safe. Before asking a worker to return to work against the advice of their care
providers, the Board must send the worker a medical opinion explaining why the light duties
are medically suitable and why the opinion from the worker’s doctor is not being accepted.
Before reducing benefits, the Board must give the worker a reasonable amount of time to
consider the opinion and decide whether to return to work.
b) Confirm the Board’s obligation to investigate properly before rendering a decision
on the duty to cooperate.
If a dispute cannot be resolved by agreement, the Draft Policy must provide decision makers
with stronger guidance on the Board’s process for rendering decisions. The Board simply cannot
take the role of a passive adjudicator who reviews existing information and renders a decision.
The Draft Policy should confirm that decision makers have an obligation to ensure that the
BCFED CLAS Submission: Bill 41 Policy
September 2023
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ATTACHMENT A-22
information on file concerning the proposed job duties and the worker’s medical restrictions,
limitations and abilities is detailed and current. Consistent with the Board’s duty to investigate
under policy #97.00 of the RSCM II, decision makers must proactively obtain the necessary
information. While workers have an obligation to assist, this is fundamentally the Board’s
responsibility.
Draft Policy Item 7.1.1 – Reduction of benefits for failure to comply with
obligation to not unreasonably refuse suitable work
a) Confirm that wage loss and/or vocational rehabilitation benefits will be
maintained while a dispute concerning the employer’s duty to accommodate and
maintain employment is adjudicated.
The Draft Policy does not address how the vocational rehabilitation process will be impacted
when there is a dispute about the duty to maintain employment. The Draft Policy should
confirm that a worker’s vocational rehabilitation benefits will be maintained while a dispute
concerning the duty to maintain employment is being resolved.
For example, suppose an employer refuses to re-employ a worker, but the worker maintains
they can return to their old job with accommodations. It would undermine the purpose of the
duty to maintain employment if vocational rehabilitation benefits were withheld because the
worker refused to look for suitable work with other employers while still asserting a right to
return to their previous job.
Similarly, no deduction from wage-loss benefits should be made based on a worker’s alleged
failure to pursue or accept other suitable employment while there is an ongoing dispute
concerning the employer’s duty to maintain employment. As a consequential amendment, the
description of phase 2 in policy item C11-87.00 of the RSCM II should cross-reference the fact
that employers now have a duty to accommodate workers. It is not simply something the
employer is encouraged to do.
Draft Policy Item 7.1.2 - Suspension of benefits for failure to comply with other
obligations
a) Confirm that any assessment of what is reasonable must consider the worker’s
individual circumstances and any barriers impeding compliance.
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September 2023
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ATTACHMENT A-22
The Draft Policy says that benefits will not be suspended if the worker has done what a
reasonable person would have done in the circumstances. It is not clear whether this
reasonable person analysis means an objectively reasonable person or a reasonable person
sharing the worker’s characteristics. The Draft Policy should confirm it’s the latter. What might
be a reasonable expectation for a person dealing with a relatively minor muscle strain may not
be reasonable for a worker dealing with a complex head injury or mental health condition.
b) Confirm that the Board should first seek to support the worker in overcoming any
barriers to compliance before turning to punitive measures.
The worker’s characteristics and any barriers they may face must be considered when assessing
reasonable expectations and a reasonable timeframe for compliance. If a worker is willing to
cooperate but there are barriers impeding compliance, the Board should first seek to provide
support and assistance to help the worker overcome those barriers.
c) Confirm that any obligation placed on the worker must be within the worker’s
control.
The Draft Policy should also confirm that any obligations imposed on the worker must be within
the worker’s control. Some tasks are dependent on a third party to complete, most commonly a
doctor or other care provider. The worker can request that their doctor complete the task, but
the worker ultimately has no control over if and when it happens. Two examples cited in the
Draft Policy – failing to provide information requested by the Board and failing to provide
details of work duties to care providers – illustrate the problem. Completion of the task may not
be within the worker’s control if something is required from the doctor. The Draft Policy should
direct decision makers to ensure that the worker is not being held responsible for matters
beyond their control.
The Draft Policy would also benefit from language reinforcing that the reasonableness of the
Board’s demands cannot be assessed in isolation, divorced from the day-to-day reality that
injured workers face. A task that may seem relatively trivial in isolation needs to be considered
together with all the day-to-day tasks an injured worker must navigate to get by. By way of
example, every one of us who has ever apologized for failing to respond to a simple email in a
timely way understands that it is not the email in isolation that’s the problem: it’s everything
BCFED CLAS Submission: Bill 41 Policy
September 2023
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ATTACHMENT A-22
else that needs to be done. Workload is often death by a thousand cuts, with each cut
seemingly inconsequential in isolation. When assessing what is reasonable, the Board must
appreciate that its demands are not the only demands – or even the most pressing demands –
that many injured workers face in their lives.
BCFED CLAS Submission: Bill 41 Policy
September 2023
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ATTACHMENT A-22
Submissions on the policy addressing the Duty to Maintain
Employment
Amendments to the Draft Policy are necessary to promote quality adjudication on fundamental
human rights issues. It is not clear at this point whether there will be a corresponding practice
directive and if so, what matters it will cover. Whether through policy or practice – or
realistically a combination of the two - the Board should ensure the following:
Draft Policy Item 1 - General
a) Confirm that the primary objective is to return the worker to their pre-injury job
with any necessary accommodations.
The primary objective should be to return the worker to their pre-injury job. The Draft Policy
confirms the duty on employers to accommodate injured workers, but does not specify that the
first priority is to provide accommodations that will return the worker to their pre-injury
position. If accommodations can be provided that would allow the worker to return to their
pre-injury job, employers should not jump to providing accommodations in alternative
employment or other suitable employment. Alternative employment or other suitable
employment should be considered only if it is truly not possible to accommodate the worker
back to their pre-injury job.
Draft Policy Item 7- Board determinations concerning compliance
a) Ensure that decisions concerning the duty to accommodate are made by qualified
decision makers knowledgeable about human rights.
Policy, practice and training must be developed carefully to ensure that the Board is ready and
able to adjudicate properly human rights matters. Adjudicating the duty to accommodate is not
straightforward. This is not a task that should be given to case managers without the necessary
training, knowledge or human rights experience. Being an expert in workers’ compensation, or
even disability management more generally, does not make one an expert in human rights.
The Board’s adjudications will not be restricted necessarily to disability-based accommodations.
The Board may be called upon to address other protected grounds.
For example, the discussion paper in the present consultation notes that the Board will have to
BCFED CLAS Submission: Bill 41 Policy
September 2023
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ATTACHMENT A-22
consider the worker’s access to childcare, which may engage the protected ground of family
status. The Board’s jurisdiction over workplace bullying and harassment often involves genderbased violence. WSIB adjudicators in Ontario have had to assess religious accommodations
when assessing whether a job is suitable.1 Decisions about fundamental human rights must be
made by dedicated decision makers familiar not only with the workers’ compensation system,
but human rights law more generally.
b) Ensure that decisions about a worker’s human rights are comprehensive and
clearly communicated.
The need for fair and fulsome adjudication is heightened by the potential impacts the Board’s
decisions can have beyond the workers’ compensation system. An adjudication by the Board
concerning the duty to accommodate may impact the worker’s ability to enforce their human
rights in other venues, including the Human Rights Tribunal. In Ontario, which, for many years,
has had a statutory duty to maintain employment, human rights complaints are being dismissed
routinely on the basis that the relevant issues were already addressed within the workers’
compensation system.2 Any decision concerning the duty to accommodate must contain
sufficient detail so that the parties and decision makers outside the workers’ compensation
system can understand what issues were addressed, what was decided and the factual and
legal reasoning behind the decision. Generalized conclusions about a worker’s human rights in a
template letter will not be sufficient.
c) Confirm that the Board must request and obtain all relevant information before
rendering a decision.
In a human rights complaint or labour arbitration there are duties on the parties to exchange
relevant documents. In these adversarial systems, the parties can hold each other to account
directly if they do not believe full disclosure has been made. The decision maker can assume
that with pre-hearing document production, the parties will draw attention to any relevant
1
Post v. Stevens Resources Group, 2014 HRTO 1470 at paras. 43-45.
See for example Morrison v. 2042204 Ontario Inc., 2019 HRTO 259; Post v. Stevens Resources Group, 2014 HRTO
1470; LaJoy v. Blueline Rental Inc., 2018 HRTO 390; Leslie v. Toyota Motor Manufacturing Canada Inc., 2023 HRTO
320; Tesfamariam v. Camcor Manufacturing, 2015 HRTO 219; and Purdie v. CCM Contracting Ltd., 2019 HRTO.
1575.
2
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September 2023
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ATTACHMENT A-22
information. However, the same is not true in an investigatory system like workers’
compensation. The Board, not the parties, is charged with determining whether additional
information is needed and if so, obtaining that information. The Board must take its duty to
investigate seriously because the parties have little ability to demand or compel information
directly from each other.
d) Coordinate with the Workers’ Advisers Office, the Employers’ Advisers Office, and
other legal service providers to ensure appropriate legal advice is available.
The Board should communicate with the Workers’ Advisers Office and the Employers’ Advisers
Office to confirm their scope of service with respect to the duty to accommodate. Without
purporting to speak for either organization, some issues may fall within their mandate while
others may not. For example, it is not clear whether the Workers’ Advisers Office will advise a
worker about:
•
the implications of a Board decision concerning the duty to accommodate on
related legal proceedings;
•
responding to communications from the Board and/or other decision makers about
deferring one proceeding or the other;
•
steps the worker should take to preserve rights and time limits in other venues in
cases where the application of the duty to maintain employment is contested (for
example, where there is a dispute about the length of time the worker was
employed or the number of workers the employer employs);
•
the remedies available in each venue; or
•
how to proceed where the conduct at issue raises both return-to-work issues that
are within the Board’s mandate as well as separate human rights violations not
within the Board’s mandate (sexual harassment in the workplace could be an
example).
Although the Board is certainly not responsible for funding legal advice and representation
outside the workers’ compensation system, the Board should at least ensure that workers have
legal advice to understand the nature and overall consequences of the Board’s adjudications.
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September 2023
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ATTACHMENT A-22
e) Confirm that the Board will not adjudicate the duty to accommodate on its own
initiative unless the adjudication is necessarily related to another decision the
Board must make.
The suggestion in the Draft Policy that the Board can adjudicate the duty to accommodate
without being requested to do so by the worker raises concerns about control over the process.
Section 154.3(10) of the WCA speaks only of decisions made at the worker’s request. There is
no mention of adjudication by the Board independent of a request by the worker. Section
153.3(7) of the WCA identifies certain matters the Board can resolve simply because a dispute
exists, but the duty to accommodate is not listed.
This signals an intention to respect the worker’s choice of where they want to assert their
human rights. Jurisdiction over workplace accommodation is now shared among several
different decision makers. Importantly, the remedial powers of each decision maker are quite
different.
Delineating the jurisdictional boundaries between the various administrative regimes is beyond
the scope of the Draft Policies. Case law will develop presumably over time providing guidance
on what aspects of the Board’s jurisdiction are exclusive, what aspects are shared and how
cases that engage multiple administrative systems should be managed. There may be situations
where the duty to accommodate cannot be untangled from another decision the Board is
required by statute to make. But to the greatest extent possible, the Board should respect the
worker’s choices. The worker may have consciously chosen to enforce their human rights in
another venue based on their circumstances and the available remedies. This choice could be
prejudiced if the Board decides to unilaterally take charge of the issue.
Conclusion
We are cognizant these policies are new to the WCB and will require appropriate resources to
ensure they are effectively implemented.
We thank the WCB for the opportunity to participate in this consultation. And we strongly urge
you to consider implementing our recommendations.
BCFED CLAS Submission: Bill 41 Policy
September 2023
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