New requirements strengthen return to work
Formal obligations under the duty to cooperate and duty to maintain employment are effective January 1, 2024.
When a worker is injured on the job, that person ideally recovers and returns to their previous role and employer. People who return to their workplace as soon as it is safe to do so usually have a faster recovery and better overall health outcomes, while also minimizing disruption to the workplace.
New legislation introduces specific duties to support return to work
In 2022, the B.C. government introduced Bill 41, a suite of amendments to the Workers Compensation Act. The final amendment from Bill 41 — the duty to cooperate and duty to maintain employment — comes into effect on January 1, 2024. The legislation is designed to encourage connection between workers and employers by laying out legal return-to-work responsibilities for both parties.
“Many employers already appreciate the value of return to work and are committed to supporting their workers in the event of an injury. By the same token, workers are typically eager to return to their workplace and regular routines after they’ve been injured,” says Chris Girling, senior manager in Return-to-Work Services at WorkSafeBC.
“The most effective and durable return-to-work plans are developed when the worker and employer are cooperating and working towards the same goal. The new obligations ensure they are both engaged in the return-to-work planning process.”
What do these new duties mean for employers and workers?
The amendment consists of two separate obligations; one that applies to both workers and employers and one that applies primarily to employers.
First, both employers and workers are obligated to cooperate with each other, and with WorkSafeBC, in timely and safe return to work following an injury. This means they must maintain open lines of communication on the status of the injury, and identify and agree to suitable modified duties when it’s safe for the worker to return.
Second, employers with 20 or more workers have a responsibility to maintain employment with their injured worker, when that worker has been employed with them for at least 12 months.
Maintaining employment applies in several ways. If a worker is fit to return to their pre-injury work, the employer is required to offer either that pre-injury work or a comparable alternative. If the worker cannot perform their pre-injury job, but is otherwise fit to work in another capacity, the employer is required to offer the first suitable work that becomes available. Employers must also make any changes necessary to the work or workplace to accommodate an injured worker, unless the changes create an undue hardship for the business.
The duty to cooperate will apply on claims with injury dates on or after January 1, 2022, while the duty to maintain employment will apply on claims with injury dates on or after July 1, 2023.
What happens if an employer has trouble meeting their obligations?
The legislation does include provisions around compliance. Those may take the form of an administrative penalty based on the amount of the wage-loss or other benefits being paid to the worker.
While further escalation or penalties may be used as a last resort, Girling says proactive collaboration is the primary focus. “The goal of the new obligations is to bring the two most important parties together — the worker and employer. They both have a role to play in return to work. Better outcomes are inevitable when both the worker and employer build trust and are engaged in the process.”
What comes next?
Once fully implemented, the obligations will be integrated in our tools and forms for employers and workers and other disability management resources to support timely and safe return-to-work outcomes.
To learn more
See these webpages to help you understand the new obligations:
If you have a question about the new obligations, you can also email us directly by visiting our Email us page. Submit it under the “Duty to cooperate and Duty to maintain employment” category, and we will respond to you as soon as possible.
This information originally appeared in the Winter 2023 issue of WorkSafe Magazine. To read more or to subscribe, visit WorkSafe Magazine.