What is the Duty to Maintain Employment after a Workplace Injury?
Wondering how a workplace injury impacts an employer’s legal obligation to keep a worker on the payroll? In British Columbia, legislative changes in 2024 dramatically altered the landscape for returning injured staff to the workplace. Under the British Columbia Workers Compensation Act, employers now face strict statutory requirements designed to maintain a worker’s connection to their job following a workplace injury.
What are the Return-to-Work Obligations?
The Workers Compensation Act sets out two distinct, concurrent obligations that arise as soon as a worker is disabled from earning full wages due to a workplace injury, mental disorder, or occupational disease:
· The Duty to Cooperate: This obligation applies to all employers and workers, regardless of company size. It requires both parties to initiate prompt contact, maintain continuous communication, and actively collaborate with each other and WorkSafeBC to safely identify and implement suitable work opportunities.
· The Duty to Maintain Employment: This is a more strict obligation that applies only to certain employers. If an employer regularly employs 20 or more workers in BC and has continuously employed the injured worker for at least one year prior to the date of the injury, the employer has a legal duty to maintain that worker’s employment.
Similar to the duty to accommodate under the BC Human Rights Code, an employer must make necessary workplace changes to facilitate the worker’s return, up to the point of undue hardship (such as severe financial strain or risks to workplace safety).
What are the Timelines and Obligations with the Duty to Maintain Employment?
The return-to-work process under the Workers Compensation Act has some specific obligations and timelines:
· Evaluating Fitness for Essential Duties: The nature of the employer’s obligation depends entirely on the worker’s medical restrictions and limitations arising from their workplace injury. If the worker is fit to perform the core, essential duties of their pre-injury job, the employer must offer them their pre-injury work or a comparable alternative with equivalent wages and responsibilities. If the worker is not fit to return to their old job but can work in some other capacity, the employer must offer them the first suitable work (i.e. safe, productive, and meaningful work within their medical restrictions) that becomes available.
· The Two-Year Milestone: An employer’s duty to maintain employment and offer suitable work continues until the second anniversary of the date of the injury. If the worker has not returned to work by this two-year mark, the employer’s obligation to maintain employment ends (under the Workers Compensation Act). However, if the worker has successfully returned to their pre-injury or alternative work with the employer, the employer’s obligation to accommodate the worker’s ongoing medical needs continues.
· The Six-Month Termination Presumption: To protect workers, there is a presumption in favour of injured workers who are terminated from their employment. If a worker’s employment is terminated within six months of returning to the workplace, an employer is presumed to have breached the duty to maintain employment. Employers can challenge this presumption but must prove, on a balance of probabilities, that the termination was completely unrelated to the worker’s injury.
Why is it Important to Understand the Duty to Maintain Employment?
These requirements fundamentally change BC employers’ obligations to injured workers. In addition to their continuing obligation to accommodate employee disabilities under the Human Rights Code, Employers now must engage with WorkSafeBC on the return-to-work process. WorkSafeBC actively enforces these obligations and will conduct investigations and issue determinations where disputes regarding an injured worker’s return to work arise.
If an employer fails to comply with either the duty to cooperate or the duty to maintain employment, WorkSafeBC can impose significant financial administrative penalties.
· A breach of the duty to cooperate can result in a monthly accumulating penalty equivalent to the worker’s temporary wage-loss compensation.
· A failure to maintain employment carries significant penalties generally calculated on the greater of the worker’s long-term average earnings or 50% of the maximum statutory wage rate.
In addition to these penalties, if an employer terminates a worker in breach of these rules, WorkSafeBC may order the employer to fund direct compensation payments to the worker for up to a full year. To navigate these strict timelines, manage accommodation disputes, or respond to enforcement notices, business may want to to seek guidance from experienced employment and labour lawyers specializing in occupational health and safety issues.
This blog is not legal advice and only provides general information. Every situation must be considered on its own facts.
Need legal advice? Contact us at [email protected] or 604-535-7063. Our team of labour and employment lawyers in BC are ready to answer your questions.
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