By Kevin Love
The Workers Compensation Act now imposes a duty on employers who regularly employ at least 20 workers to maintain the employment of an injured worker who has been continuously employed for at least 12 months. Importantly, this new duty to maintain the injured worker’s employment requires that the employer accommodate the injured worker to the point of undue hardship.
Embedding the duty to accommodate within the workers compensation system certainly helps protect workers who may otherwise be pushed out of work following a workplace injury. But adding WorksafeBC to the growing list of decision-makers addressing workplace discrimination also adds confusion and complexity to an already challenging area of the law.
The duty to accommodate injured workers may be new to the Workers Compensation Act, but it has been part of human rights law for a long time. The Human Rights Tribunal receives many complaints every year from workers alleging that their employer has not accommodated their disabilities. Labour arbitrators also hear many grievances from unionized workers concerning accommodation in the context of a collective agreement.
It will likely take some time to figure out the respective roles and relationships between the various decision-makers dealing with workplace discrimination. We certainly don’t have all the answers at this point. However, there are a number of issues that may warrant attention as WorksafeBC starts to enforce the new duty to maintain employment:
- Will workers be confused about where to raise a complaint? With so many different decision-makers now making decisions about the duty to accommodate, it may be hard for injured workers to figure out where to go and who has power over what. WorksafeBC can now make decisions about the duty to accommodate, but only in the context of a workplace injury. WorksafeBC cannot require that an employer accommodate a worker who is injured outside of work. And even for work related injuries, the duties to accommodate and maintain employment under the Workers Compensation Act do not apply to all employers and all workers. The Workers Compensation Act only extends these duties to employers who regularly employ 20 or more workers and to workers who have been continuously employed for at least 12 months.
In contrast, the protections in the Human Rights Code cover all employers, regardless of size, and all workers no matter how long they have been at work. Similarly, an employer’s obligations under a collective agreement will apply to all workers covered by that collective agreement.
But even the broad protections in the Human Rights Code are not unlimited. The Human Rights Code only protects against discrimination based on mental or physical disability. Not all injuries will necessarily amount to a disability. For example, broken bones are certainly an injury, but not all broken bones necessarily result in a disability covered by the Human Rights Code. So while the protections in Human Rights Code are considerably broader than the new protections set out in the Workers Compensation Act, there will still be some injuries that only WorksafeBC can deal with because they do not amount to a disability. All of this may make it very difficult for an injured worker to know where to go and what to do.
- Will smaller employers get confused about their human rights obligations? The new duty to maintain an injured worker’s employment under the Workers Compensation Act only applies to employers who regularly employ 20 or more workers and to workers who have been continuously employed for at least 12 months. Some smaller employers may think this means that they do not have to accommodate their workers. But that is not the case. The duty to accommodate under the Human Rights Code continues to apply. Smaller employers must still accommodate workers with disabilities under the Human Rights Code, regardless of how many workers they employ and regardless of how long the worker has been employed.
- Will the Human Rights Tribunal start putting complaints on hold? In many cases, more than one decision-maker may have authority to address a dispute. In these cases, it may be necessary to decide who is going to go first. The Human Rights Tribunal can put a human rights complaint on hold if there is some other proceeding that may appropriately deal with the substance of the complaint. Will the Human Rights Tribunal start pausing complaints if WorksafeBC is looking into the same matter? What if the employer wants WorksafeBC to address the situation instead of the Human Rights Tribunal? How much control will the worker (or the employer) even have about whether WorksafeBC addresses the situation?
- Will the Human Rights Tribunal start dismissing complaints based on previous WorksafeBC decisions? The general rule in a legal dispute is that you only get one kick at the can. Litigants cannot just re-file a second time in another place because they don’t like the first decision. The Human Rights Code gives the Human Rights Tribunal the ability to dismiss a case if the dispute has been appropriately dealt with in another proceeding. So if WorksafeBC is now making decisions about the duty to accommodate, will the Human Rights Tribunal start dismissing related human rights complaints on the basis that they were appropriately dealt with through WorksafeBC?
- Can the worker pursue additional remedies if WorksafeBC finds in their favour? Just because WorksafeBC now has the power to address the duty to accommodate does not mean that it has the same powers as the Human Rights Tribunal or labour arbitrators to fix the problem or award the worker compensation. WorksafeBC can offer some remedies and solutions that the Human Rights Tribunal and labour arbitrators cannot offer, and vice versa. And there are pros and cons to each.
For example, WorksafeBC can pay the worker up to one year of benefits if the employer fails to maintain their employment. The worker gets benefits paid by WorksafeBC, without having to chase the employer around to collect their money. WorksafeBC will also probably move a lot faster than the Human Rights Tribunal, which may be helpful for injured workers who need money right away. Although WorksafeBC cannot order that the employer rehire the worker, WorksafeBC might be able to intervene early with the employer to prevent the worker from losing their job in the first place.
But there are also some things that the Human Rights Tribunal and labour arbitrators can do that WorksafeBC cannot do. Labour arbitrators can actually order that the employer give the worker their job back. The Human Rights Tribunal can order that the employer pay the worker compensation directly, including compensation for injury to the worker’s dignity. The worker likely stands to get more from the Human Rights Tribunal than they would get from WorksafeBC, but it comes at a cost. It can take years to get a decision from the Human Rights Tribunal and the worker will have to go through the expense and stress of pursuing a human rights complaint. So can the worker try to access some of the speedy remedies from WorksafeBC and, if successful, follow up with a Human Rights Complaint to get any additional compensation or remedies they may be entitled to?
- Will WorksafeBC be able to make quality decisions about the duty to accommodate? Adjudicating the duty to accommodate and the point at which the employer will have reached undue hardship is complicated. The Human Rights Tribunal and labour arbitrators have decades of experience making these decisions. WorksafeBC certainly has lots of experience making decisions about workplace injuries, but adjudicating the duty to accommodate will be new. Sometimes WorksafeBC may need to assess factors outside the workplace, particularly when a worker can’t return to their old job and is offered a new position with the employer. For example, WorksafeBC may need to assess whether the hours and conditions of the new position are consistent with the worker’s childcare options or religious beliefs in order to determine whether the new position is suitable. All of this may take WorksafeBC outside its core area of expertise.
It is obviously critical that employers accommodate injured workers to facilitate a safe and meaningful return to work. Protections to better ensure that injured workers are not pushed out of work are a welcome addition. But having so many decision-makers responsible for enforcing workplace human rights creates the risk of confusion, complexity, and conflict. Worker advocates will need to monitor the issues cited above to ensure that injured workers don’t slip through the cracks between all these different decision-makers.