March 2024
New RTW Issue – how big is your employer?
Bill 41 introduced two new sections to the Act, effective January 1, 2024:
Section 154.2 – The Duty to Cooperate
Section 154.3 – The Duty to Maintain Employment.
Effectively, these Duties divide employers into two types: those who regularly employ 20 or more workers (= large employers) and those who employ fewer workers (= smaller employers).
The new Duty to Cooperate (DTC) applies to all employers and to all workers. An additional Duty to Maintain Employment (DTME) applies only to large employers and most (but not all) of their workers.
When a worker is injured, their rights and obligations depend largely on the size of their employer. Those who work for smaller employers, the DTC requires that they be offered “suitable work” (if possible). Those who work for larger employers have some additional rights for some period of time. The Practice Directive #C5-6 give guidelines for how “employer size” is defined.
What is “Suitable Work”? The Problem in Early Disputes
“Suitable work” is now a critical concept because it applies to everyone and because it so affects an injured worker’s benefits. Policy #C5-35.10 defines suitable work as work that is safe, productive, and within the worker’s functional abilities and medical restrictions. It also states that:
- All smaller employers must make an offer of “suitable work”, if possible, as soon as possible after an injury. The offer must be genuine and have enough detail to determine its “suitability” for the worker.
- An injured worker must not unreasonably refuse an offer of “suitable work”. If they unreasonably refuse, the Board can (and will) deem the worker capable of earning those wages and reduce (or eliminate) their wage loss benefits.
Disputes about the “suitability” of any offered work or any refusal of that work may be referred to the Board for a decision and the policy also notes that in assessing these disputes, the Board may take account some additional factors, including a worker’s childcare commitments, transportation issues and medication condition.
However, the Board can only make a decision once (and if) the worker’s claim is accepted, whereas the DTC begins the day of injury.
Is this concept workable? The Board thinks so and is encouraging employers to talk to an injured worker as soon as possible after an injury. In some circumstances, such efforts can be appropriate and even appreciated.
But in other cases, misdirected early RTW efforts can unhelpful or harmful to an injured worker. Many employers have no understanding or skill (or interest) in “rehabilitation” or “accommodation” and the Board is entirely absent in these critical early stages. And when a claim take longer (often very much longer) to be accepted, there will be a significant “time gap” between the date of injury (DOI) and the Board’s jurisdiction to resolve “suitable work” disputes.
The “time gap” between an injury and the acceptance of a compensation claim now forms a terrain which freshly injured workers and their advocates must navigate alone. And their actions may affect both the worker’s future compensation benefits and potentially their job security.
Advocates for injured workers need to get their bearings on this new landscape. The RTW Practice Directive (#C5-6) is a good place to start but leaves many questions unanswered. Material in the “Course Material” section (in this Members Portal) may also be helpful.
But most helpful will be any shared experiences with fellow advocates. The next few months will be an especially changing time for front line representatives, when advocacy in this “time gap” may be dropped in their laps.
Just remember:
- The test for a worker’s compliance with a General Duty to Cooperate (communicate, participate, etc.) is the “reasonable person” test; that is, has the worker taken the steps that a reasonable person in the worker’s situation and with their characteristics would take; and
- A refusal of a work offer may be “reasonable” if the work is not safe or not production or not within the worker’s functional abilities or in light of the other factors set out in policy (such as medication or childcare).
Practice Notes on “Suitable Occupation” for LOE Pension cases
The concept of “Suitable Work” (set out above) is all about returning to work with the injury employer and applies for the life of the claim.
In contrast, “Suitable Occupation” is the key concept when a permanently injured worker has NOT RTW and is being assessed for a “loss of earnings” pension.
“Suitable Occupation”, defined in the policy C6-40.00, has been amended twice in the last 2 years. In September, 2022, it was rewritten to clarify that
- a worker’s individual circumstances must be considered when determining whether an occupation is suitable; and
- the occupation must be “reasonably available” – that is, one where the worker is competitively employable for a job within that occupation.
In 2024, it was amended to state that for an occupation to be suitable, a worker need not have the “education” required by the occupation – only the “competencies” and “qualifications”. Given that many VR policies have also been amended, it remains to be seen if these recent changes open or close doors for injured workers trying to retrain into a new occupation.
PRACTICE NOTE FOR “SUITABLE OCCUPATION”
Many disputes about a “suitable occupation” revolve around the details of a proposed occupation. A general and puffed up job description can make any occupation seem possible for anyone. The remote the description is from real world duties , the more that the proposed “suitable occupation” can be just a false suit of clothes over nothing at all.
The Board often uses, or misuses, the National Occupational Codes (NOCs) to generate job descriptions, even though they are specifically not designed for this purpose. The Board is also using an online service called OaSIS – an Occupational Skills and Information System, linked to the NOC codes in the Government website – to define even the cognitive job demands for NOC defined occupations. See https://noc.esdc.gc.ca/Oasis/OasisWelcome.
The answer to such generalities is always a reliable factual assessment of the worker’s actual functional abilities and a good specific assessment of the job duties for an occupation. A helpful RD decision, discussing this in detail, is #R0307809 (November 17, 2023).