For workplace accidents occurring on or after September 1, 2018, non-exempt employers have an obligation under section 88.1 of the Alberta Workers’ Compensation Act (the “WCBAct”) to accommodate and reinstate most workers injured in a work-related accident to their pre-accident position or a comparable position with the same earnings. This obligation is in addition to any obligations under the Alberta Employment Standards Code, the Alberta Human Rights Act, and under common law.

This blog serves as a reminder to employers of the recent legislative change to accommodate and reinstate workers under the WCB Act after a work-related injury and to highlight potential liability for failing to comply with this obligation.

Non-Compliance

If an employer is found to have breached their obligation to accommodate or reinstate under section 88.1 of the WCB Act, the WCB may impose a penalty on the employer of up to one year of the employee’s net salary for the year prior to the accident. The penalty is determined by the WCB having reference to a number of factors including the severity of the injury, whether the worker is continuing to receive benefits, or whether the employee has obtained new employment. The penalty is meant to cover the costs of services and to assist the employee in finding alternative employment.

Accommodation and Undue Hardship

The WCB requires an employer to accommodate a work-related injury to the point of undue hardship. Accommodation will vary depending on the nature of the work and injury and may include modifying the worker’s hours of work, making the premises accessible, or modifying job duties either temporarily or permanently. Employers are also required to contact the worker as soon as possible after the accident occurs and must maintain communication throughout the worker’s rehabilitation.

Whether or not accommodating an injured worker amounts to undue hardship is a complex issue and requires a detailed analysis of the specific circumstances. An employer who claims undue hardship must demonstrate to the WCB with supporting evidence that accommodation would result in undue hardship. Depending on the circumstances, this obligation may include a description of physical requirements, evidence of the financial impact on the business or evidence of the disruption of operations.

The expectations and requirements for accommodation under the WCB Act are similar to those required by human rights law. We understand that the WCB will rely on human rights jurisprudence to assist in determining the extent of an employer’s obligations and the applicable factors in assessing undue hardship.

Further, the WCB is required to notify the Director of the Alberta Human Rights Commission (“AHRC”) that it is dealing with a dispute regarding the duty to accommodate. While both the AHRC and WCB have jurisdiction to adjudicate this issue, it is not expected that parties will be able to argue the same issue regarding duty to accommodate before both the WCB and the AHRC. Accordingly, one agency may adopt the findings of the other agency. As such, it is important that employers put forward their best case in dealing with either the WCB or the AHRC.

Reinstatement

Most workers who have been employed by the employer for at least 12 continuous months and who have been unable to work as a result of a work-related accident are entitled to reinstatement. When a worker is medically and physically able to perform the essential duties of the worker’s pre-accident employment, the employer must reinstate the worker to their pre-accident position (or alternate employment with the same earnings and benefits). Additionally, if a worker is unable to perform the essential duties of pre-accident employment, the employer must offer the worker the first opportunity to accept suitable employment as it becomes available.

Breach

If an employer terminates a worker within 6 months of the worker returning to work or while the worker is receiving WCB benefits, the WCB will presume that the employer breached their obligation to reinstate. However, employers are not prevented from refusing to continue to employ a worker, terminating, laying off or suspending a worker, or altering the status of or transferring a worker if the employer satisfies the WCB that the decision to do so was made in good faith, for a business reason, and was not affected by the worker’s accident.

As such, an employer can rebut the WCB’s presumption if it can establish that the termination was unrelated to the worker’s accident. For example:

• the decision to terminate occurred prior to the injury;
• the termination was part of a broader workforce downsizing;
• part or all of a business is suspended or discontinued; or
• the decision to terminate was a result of the worker’s misconduct unrelated to the worker’s accident.

Employers should consider keeping accurate and detailed records of their decision to terminate an employee and ensure policies and procedures are applied consistently.

Notice to WCB

Finally, unlike other legislative obligations, such as Employment Standards and Human Rights, which are typically complaint-driven, the WCB Act imposes a positive obligation on employers to notify WCB of any disputes between the employer and the worker relating to the employer’s obligation to reinstate and accommodate. This provision is unusual and many employers may be unaware of its existence.

If you have any questions about the obligation to accommodate or reinstate injured workers or require advice in dealing with the WCB, please contact one of the members of our Labour & Employment Group.