New Return to Work Legislation: What we need to know

Ale (KSW Lawyers): The Duty of Maintain Employment is not indefinite; it runs to the second anniversary of a worker’s date on injury. If a worker has been unable to return to work over two years from the date of injury, the obligation to maintain employment ends.

Ale (KSW Lawyers): WorkSafeBC can adjudicate whether the worker is expected to remain in the accommodated role and whether they are entitled to wage loss benefits in these cases. Since the Duty to Maintain Employment poses a positive duty on the employer to find alternate work, exploring alternate accommodation/position may be required if the current position is not working out. Teresa (WorkSafeBC): A return to suitable work does not require medical clearance from the worker’s treating clinician or any other health care provider. In many instances, the worker can confirm their functional abilities directly with the employer and they can collaborate on developing a suitable RTW plan. If there are any concerns about the worker’s ability to perform the work safely, the physician or other health care provider can be helpful in identifying the worker’s abilities and any restrictions

TeksMed Service: Employers should keep in mind they do not NEED to wait for medical to make an offer of suitable/modified work. They can base the offer off common-sense restrictions (Ie: one-handed duties for a left-hand injury). Also, other treatment providers can provide limitations or assist in reviewing modified work (Ie: Physiotherapist). As WCB receives more detailed medical at all assessments, if clarification is still needed one can always connect with WCB to obtain specific limitations or abilities.

Ale (KSW Lawyer): If an employer terminates an employee within six months due to the injury, they may be liable for breaching the Duty to Maintain Employment. The determining factor is whether the termination was related to that worker’s compensable injury. WorkSafeBC wants to dissuade employers from terminating injured workers due to their injury and associated disabilities. The employer must establish that the termination was unrelated to the injury, which can be difficult to prove without evidence of performance shortcomings.

Ale (KSW Lawyer): Employers are expected to accommodate a worker to the point of undue hardship, the point at which it is too difficult, unsafe, or expensive to remove barriers so that injured workers can return to work. If creating a new position is financially unfeasible for a business, the employer can establish that doing so would cause undue hardship.

Ale (KSW Lawyer): The Duty to Cooperate is reciprocal. Employees also have a duty to communicate with the employer and WorkSafeBC. Failure to do so puts them at risk of losing claim benefits. The Duty to Cooperate is applicable to cases where a worker is disabled from earning full wages, even if they were employed for only five months prior to the injury. The Duty to Cooperate continues throughout the claim, or as long as the employment relationship exists. Meanwhile, the Duty to Maintain Employment does not apply, since 12 months of continuous full or part-time employment is required to trigger these obligations.

Ale (KSW Lawyers): Terminating a worker and paying them termination pay does not automatically cancel the Duty to Maintain Employment obligations. Employers may still be required to establish that the termination was unrelated to the injury under the WorkSafeBC system. Whether there was a breach of the Duty to Maintain Employment is determined on a case-by-case basis, though investigation, and consideration of specific circumstances of each situation. Similar to discrimination claims under the Human Rights Code, a termination can be discriminatorily motivated, even in without cause terminations. WorkSafeBC and the Human Rights Tribunal look to the underlying motivations behind the termination. Workers can request WorkSafeBC to determine whether an employer has failed in its duty to maintain employment within three months of the termination.

WorkSafeBC offers a Return to Work Coordinator course. It is a two-day course focuses on the role and responsibilities of a return-to-work (RTW) coordinator, providing participants with the information, tools, and templates that will allow them to do the job. The course focuses on the value of a proactive approach, which provides support for an injured worker right from the time of injury, provides modified or alternate work that is appropriate and safe for their specific injury and limitations, and keeps the worker connected to the workplace while they recover. This course will provide participants with enough information to move them, and their organization, toward a process that aligns with leading practices.

Teresa (WorkSafeBC): I am not sure if that has been a consideration, as it is outside of my department, but if you would like to know, please send an email so that I can forward it to the appropriate department and try to find an answer for you.

Teresa (WorkSafeBC): The new legislation provides a legal framework for supporting an injured worker’s return to, or continuation of work.

Teresa (WorkSafeBC): Undue hardship refers to a point at which accommodating a worker becomes too difficult, unsafe, or costly for the employer. WorkSafeBC determines if the situation meets the undue hardship criteria on a case-by-case basis, taking into account the specific circumstances of each situation. Employers are obligated to identify and offer work that is safe, productive, and consistent with the worker’s functional abilities and skills and, if possible, restores the worker’s wages. Generally, employers are not expected to create new job positions or roles simply to fulfill the obligation to offer suitable work. Employers are expected to identify and make available suitable work opportunities that already exist, or may exist, within their organization, and that match the worker’s functional abilities and medical restrictions. Employers should consider what changes to the work or workplace could be made to allow a worker to return to work. Amanda (TeksMed Services): I believe you mean undue hardship for the Employer. Creating a new position does not qualify as undue hardship in and of itself. Undue hardship is a VERY HIGH bar to claim and the employer has the onus of proof to support that hardship. Hardship within Policy is defined as:

Undue hardship is the point at which it is too difficult, too expensive, or unsafe for the employer to accommodate the worker.

Some examples of things the Board may consider in relation to this per the RSCM are:

• 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.

Teresa (WorkSafeBC): There is no limit prescribed. If the work is being completed regardless of accommodations than there is no effect. If providing accommodations becomes an undue hardship, then that will be reviewed. Make sure you document why an accommodation is not possible. Amanda (TeksMed Services): There is no set figure.

Teresa (WorkSafeBC): In response to your question, it seems that you are asking about the DTME and how to communicate to the employer that they cannot terminate an employee who may not meet the DTME because they were recently hired. The DTME applies to employers who regularly employ 20 or more workers and workers who have been employed with the employer for at least 12 months. If the worker in question meets these criteria, the employer has an obligation to maintain their employment, which may require making changes to the work or workplace to accommodate the worker. Additionally, the DTC is still there. The worker should be contacted at the first moment practicable and suitable work should be identified. If you are firing someone just because of an injury, you are still subject to Employment Standards and other legislation Amanda (TeksMed Services): Being on Probation does not bar a worker from claim, however the Duty to Maintain employment only applies to workers who have been employed for at least 12 months.

Amanda (TeksMed Services): Being on Probation does not bar a worker from claim, however the Duty to Maintain employment only applies to workers who have been employed for at least 12 months. Many workers have underlying or pre-existing conditions, the Board can consider accepting this as only an aggravation to a pre-existing condition and/or may also consider granting the Employer Relief of Costs in such cases if an underlying or pre-existing condition is enhancing the injury or prolonging the recovery.

Ale WorkSafeBC: keeps a record of the phone calls throughout a claim. Case Managers often summarize conversations after speaking to a worker or an employer. You can find this under the “Communications” tab via the online claim portal. The call centre may also “log” a message that you leave for the Case Manager, Vocational Rehabilitation Consultant or Long Term Disability Officer. This is helpful for claim management purposes. For example, if a new Case Manager is assigned to the claim, they can review previous correspondence with the worker to pick up where they left off. Phone memos can also be used as evidence in Review Division and WCAT appeals. An employer or worker may use these logged messages to confirm that the Duty to Cooperate was not/complied with. Amanda (TeksMed Services): All claim communication (calls, correspondence, emails, etc.) is logged on a claim by WCB and may appear in claim disclosure.

Teresa (WorkSafeBC): The duty to cooperate requires workers to “not unreasonably” refuse suitable work when it is made available by an employer with whom the worker has an existing employment relationship. If a worker refuses work duties that are suitable and available, WorkSafeBC will investigate to determine the reasonableness of the worker’s refusal. If WorkSafeBC decides the worker unreasonably refused an offer of suitable work, the worker’s wage-loss or wage-loss equivalency benefits may be reduced effective the date the work was suitable and available, as determined by WorkSafeBC. Amanda (TeksMed Services): Accommodations are based on medical clearances and abilities, not worker preference. If the suitable/modified work or accommodation is being declined due to preference, WorkSafeBC can deem the offer suitable and conclude benefits or suspend wage loss for the worker failing in their Duty to Cooperate.

Teresa (WorkSafeBC): A worker can, but they are not obligated to, share their medical information. Many doctor’s reports can include information that is not relevant to the claim and is the confidential, private, information of the worked. For medical information to help identify suitable work, you can direct a worker to physiotherapy for the completion of a functional abilities form. WorkSafeBC will pay for the initial visit even if the claim is not accepted. However, communication with the worker is all that is needed. The worker can participate in suitable work without any type of medical clearance on file.

Amanda (TeksMed Services): Employers should keep in mind they do not NEED to wait for medical to make an offer of suitable/modified work. They can base the offer off common-sense restrictions (Ie: one-handed duties for a left-hand injury). Also, other treatment providers can provide limitations or assist in reviewing modified work (Ie: Physiotherapist). As WCB receives more detailed medical at all assessments, if clarification is still needed one can always connect with WCB to obtain specific limitations or abilities.