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WorkSafeBC: the Duty to Maintain Employment

By Kendra Murray (posts)

An employer now has a duty to maintain employment of an injured employee.

Employers have always had a duty to accommodate injured workers under the Human Rights Code, but employers now have specific obligations under the Workers Compensation Act to maintain an injured employee’s employment and accommodate them.

What is the Duty to Maintain Employment?

The duty to maintain employment requires an employer to hold a position for an injured employee for two years following the date of injury. It applies not only to the injured employee’s original position, but also to providing suitable alternative work within the employee’s limitations and comparable in duties and earnings.

Let’s break that down.

  1. If the employee can return to their original position: you must offer them the opportunity to return to that position with or without accommodations.
  2. If the employee cannot return to their original position with or without accommodation but can work in some capacity: you must offer them the first suitable work that becomes available with comparable duties and earnings.
  3. The employer also has a general duty to make changes to the work or workplace necessary to accommodate an employee: to the point of undue hardship.

Practically, this means that if you have an injured employee, you must be prepared to bring them back to their original position with or without accommodations or suitable alternative work, when the employee is medically cleared for a return to work. This can involve restructuring of positions or coverage for the original position. If coverage of positions is not appropriately arranged, this can create further employee issues with constructive dismissal or breach of another employee’s contract.

Who does it apply to?

The new regulations apply to:

  1. Employers who employ 20 or more workers; and
  2. Employees who:
    • have an accepted WorkSafeBC claim for a work-related injury; and
    • have been employed for at least 12 continuous months before their date of injury.

Retroactive Application

The regulation was brought into effect January 1, 2024 however, it applies to WorkSafeBC claims with a date of injury on or after July 1, 2023.

When does this duty end?

At the two-year anniversary date of the injury, if the employee has not returned to work, the employer has no further obligation to the employee under this WorkSafeBC regulation. Under human rights legislation, however, the employer may still have a duty to accommodate the employee. This will need to be assessed on a case-by-case basis.

If at the two-year anniversary the employee has returned to their original position or a suitable alternative position, the employer has no further obligation to offer other employment. However, the employer’s duty to make changes to the work or workplace necessary to accommodate the employee continues and is ongoing.

If the employee voluntarily ends the working relationship, the employer has no further obligation.

There are many considerations for getting an employee back to work after injury. These regulations provide a framework within WorkSafeBC, however, they may not be the only legal or practical considerations in play.

If you need support in determining how to bring an employee back to work after an injury, please reach out to Fulton’s workplace law group.

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