Obligation to Reinstate – Duty to Accommodate
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concerning the obligation to return injured workers to work, came into force on September 1, 2018, and was subsequently repealed as of April 1, 2021. Although s.88.1 has been repealed, it still applies to claims with dates of accident from September 1, 2018, to March 31, 2021, inclusive.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.
Following the 2016 review of the Alberta Workers’ Compensation system, the resulting legislative and policy changes to the WCB Alberta went into effect during 2018, with the final changes being implemented on September 1st, 2018. Even though much of the new legislation will be implemented without much consequence, there are aspects that may have a substantial impact on employers— not only financially but operationally.
In previous posts, the changes to health benefits and the proposed policy to changes to employers’ obligations to reinstate and duty to accommodate were explored. Now that the policy changes have been implemented, here is how they may affect Alberta employers:
Modified Duties: No Longer an Option, Now an Obligation
Although not part of WCB’s jurisdiction, a fundamental component of the Return to Work services provided by the WCB has been to have employers and injured workers work together to facilitate a return to meaningful employment either in their pre-accident or an alternate position. Under the new legislation, offering injured workers modified work during their recovery is no longer an option— it is an obligation.
The good news is that the concept of modified duties and accommodating injured workers in their recovery and return to work is not unfamiliar to many employers. In 2017, 93% of all injured workers in Alberta returned to their date of accident employer and 80% of injured workers participated in modified duties while they recovered. For employers who already have established a return to work program in place that is effective and current, the upcoming changes may have little impact. For employers who do not, September 1st may be a rude and costly awakening.
As of September 1, 2018, if a worker is employed by a company for 12 months or more, the employer and injured worker are now expected to work together towards a return to the same job or an alternate position, following a workplace accident unless it impacts the employer’s ability to run their business. The WCB now assumes that an injured worker will go back to work as soon as they are:
a) able to perform the essential duties of their job or of a job of equal value and pay.
b) when they are fit for modified work or alternate work of the first available job.
When an Injured Worker is Fit for Work
Once an injured worker is no longer considered totally disabled and is fit to return to some form of employment, there are five possible scenarios that could apply:
This may seem fairly simple and straightforward, however, the new legislation places an additional burden on employers:
- To keep positions open for injured workers to return to
- To create new or modify existing positions to facilitate an injured workers’ return to work
- To continue to employ an injured worker for up to 6 months after they return to work unless there is a sound business reason, to the satisfaction of the WCB, for the termination
- To provide proof of undue hardship, to the satisfaction of the WCB, for not bringing an injured worker back to their employ
In cases where an injured worker is fit to perform the essential aspects of their pre-accident job within six weeks of a lay off from work, it will be presumed that they will return to their date of accident employer. In all other cases, if the date of accident employer is unable to bring an injured worker back to work, the WCB will use the hardship concept outlined in Human Resource (HR) Law to determine if the ‘duty to reinstate’ should be waived.
Even though the WCB will be referencing HR Law for guidance on what constitutes an undue hardship and will be reviewing ‘duty to reinstate’ on a case by case basis, the WCB ultimately has the final say on whether a situation meets their criteria.
The legislation allows for a more immediate, structured process when there is a disagreement concerning accommodation of an injured worker in the workplace and the expectations on employers and injured workers are clearly outlined. While this should help settle disputes more quickly and effectively, failure to comply with the new legislation will now have repercussions including fines of up to one year of an injured workers’ salary. Decisions regarding compliance will, again, be at the discretion of the WCB.
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.
So, what’s an employer to do? As with many aspects of occupational health and safety and workers’ compensation, the best defence is a good offence. In this case, ensuring that your organization has a current Health & Safety Management System, a formal Job Description of every position (including a physical demands analysis and detailed job duties) and an established Modified Duties Program are three excellent steps to making sure you are prepared.
If you have further questions regarding the recent WCB Alberta changes or are interested in what more your organization can do, you can contact us directly, during business hours, using our chat feature, by phone at 1-844-377-9545, or you can reach us by email at [email protected], [email protected], and you can always connect with us on Facebook ,Twitter , or LinkedIn.