Duty to Accommodate and Further Changes to the WCB Alberta

UPDATE

Section 88.1 of the Workers’ Compensation Act, concerning the obligation to return injured workers to work, came into force on September 1, 2018, and was subsequently repealed as of April 1, 2021. Although s.88.1 has been repealed, it still applies to claims with dates of accident from September 1, 2018, to March 31, 2021, inclusive. Employer and worker rights, obligations, and penalties for non-compliance provided for in the section continue for these claims as though the section were still in force.

As part of the 2017 review of the Alberta Workers’ Compensation Act (WCA), the Alberta Government has recently passed legislation that will affect current Workers’ Compensation Board (WCB) policy. Although some of the legislation is already in effect (details regarding those changes can be found in our recent blog here), there are further policy changes scheduled for the remainder of 2018.

In an effort to ensure it provides an effective policy framework that enables workers and employers to meet their responsibilities under the proposed legislation, the WCB requested feedback on proposed policy drafts and was accepting comments until March 6th, 2018.

There were aspects of these proposed changes that, if put into practice, could substantially increase claims costs and negatively impact employer premiums. Providing feedback was an excellent opportunity for Alberta employers, workers and concerned stakeholders to speak up and help shape the future of the WCB in Alberta.

Perhaps the most significant aspect of the legislation is the creation of two new applications to Policy 04-05: Return to Work Services. The intent of the legislation is clear; employers and workers are expected to work together to achieve a return to the same job or an alternative job following a workplace injury, to the point of undue hardship. The intent may be clear but the impact of the legislation on employers is multi-layered and complex.

Policy 04-05, Part II, App. 2: Responsibilities of Employers and Workers in Return to Work, and Policy 04-05, Part II, App. 3: Accommodation and Undue Hardship

Some highlights of the new applications are:

• Employers would be obligated to offer to reinstate a worker who: a) has been unable to work due to a compensable accident and b) on the date of accident, had been employed by the employer for at least 12 continuous months on a full-time or part-time basis.
• The offer would have to be to reinstate the worker in his pre-accident position or a comparable position with the same earnings.     
• If an employer feels they can not accommodate a worker, they would have to meet the hardship concept, as outlined by Alberta Human Rights Law.
• If an employer does not cooperate, fails to meet these obligations or does not meet the undue hardship criteria, the WCB would be able to levy an administrative penalty in an amount up to the worker’s net average earnings for the year before the accident.
• There would be no set time limit on the employer’s obligation to reinstate the injured worker; however, the employer’s ability to hold a position for the worker for an extended period of time may be a factor in determining whether accommodating the worker would result in undue hardship.
• A worker and employer would have to decide on the worker’s return to work, either to their pre-accident position, modified duties or a suitable alternative within 3 business days of the worker being declared fit to return to some form of work, be that full duties or modified employment.
• If an employer reinstates a worker and terminates their employment within six months or while the worker is continuing to receive wage loss compensation, it would be presumed the employer has not fulfilled its obligation to accommodate under the WCA.  The onus would then be on the employer to demonstrate that the worker would have been terminated regardless of the work-related accident.

There are many more details in this policy that will have a notable impact on employers, such as:  

• Not only will employers be obligated to accommodate their injured workers on modified work, they will need to share many of their HR issues with the WCB.  The onus is squarely on the shoulders of the employer to accommodate their injured workers or provide all the details of why they cannot.  
• Not only will the employer have to share personal job performance of an employee with the WCB, they will also have to share financial information with the WCB if they are trying to make a case for not accommodating a worker.  If they cannot successfully accommodate a worker, the employer may also be hit with a financial penalty.
• Now there could be an incentive for employers to lay off workers when they get close to 12 months of continuous employment so they are not obligated to bring every worker back.

All of the decisions involved in these new policy applications are appealable so now both employers and workers will be able to appeal if they believe the other party has not cooperated or fulfilled their obligations. This could potentially increase the return to work timeframes and ultimately claims costs as contentious issues are addressed through the appeals process.

Besides putting a tremendous burden on employers, in terms of finances and resources to provide sufficient evidence to the WCB regarding their ability to meet this duty to accommodate, this policy will create a lot of additional work for the WCB in an already overtaxed system. The time and resources it will take to investigate, in a timely fashion, an employer’s position regarding their duty to accommodate and the potential increase in appeals from workers and employers related to this policy are substantial.

Unless the WCB fully understands the impact that this new policy will have on employers, workers and the WCB system, they will be unable to modify the existing proposal to accommodate concerns prior to the policy coming into effect. This is why it was so important to provide your comments and feedback to the WCB before the March 6th deadline.

If you would like to discuss the recent or proposed changes in further detail or if you have a claim and are unsure of your duty to accommodate or obligation to reinstate, you can contact us directly, during business hours, using our chat feature or by phone at 1-844-377-9545, you can reach us by email at [email protected], [email protected], and you can always connect with us on Facebook, Twitter, or LinkedIn.