At a time when many employers are already faced with a host of hardships caused by the Covid-19 pandemic, the B.C. Government has proposed a number of amendments to the Workers’ Compensation Act. The primary effect of these amendments will be that employers can expect increased premiums. However, there are other proposals – for example, imposing liability on corporate directors for unpaid premiums – that may have other substantial impacts on employers.
The key changes are as follows:
Increased Costs to Employers
- Increasing the amount injured workers receive through benefits by:
- Increasing the maximum insurable earnings from $87,100 to $100,000
- Granting WorkSafeBC the authority to determine a worker’s retirement, which will allow WorkSafeBC to determine whether someone may work past the age of 65 and continue receiving benefits
- Altering the existing test for determining benefit calculation to ensure workers always receive higher disability payments
- Allowing WorkSafeBC to facilitate treatment for a worker before a claim is accepted
- Allowing WorkSafeBC to extend the limitation period to bring mental health claims beyond one year
Focus on Criminal Prosecutions
Presently, WorkSafeBC largely relies on the use of Administrative Monetary Penalties (“AMPs”) to deter and punish employers who commit health and safety violations in the workplace. These are financial penalties and do not carry any risk of criminal prosecution.
The amendments suggest that WorkSafeBC will be focusing its efforts on criminal prosecution of employers, rather than AMP’s. The changes include:
- Giving WorkSafeBC the powers of search and seizure for workplace investigations (through judge-granted warrants) through the Act, rather than the Offence Act. Presently, the Act contains search and seizure powers for inspections and investigations that may lead to orders or other regulatory enforcement actions, it does not authorize search and seizure for prosecution purposes. As the Parr Report notes, this change is specifically to ease and assist with prosecutions under the Act.
- Removing the requirement that WorkSafeBC’s president must approve an offence referral to Crown counsel, streamlining the process. Pragmatically, this step makes sense as it removes an unnecessary “gatekeeping” function: now the OHS Division alone will have the authority to proceed with a prosecution.
- Allowing courts to hear victim impact statements as part of a prosecution relating to occupational health and safety violations. BC would be the only jurisdiction in Canada with this provision.
- Allowing courts to force criminally convicted employers to publish in a newspaper or company-wide newsletter – at their own expense – facts about their offences.
- Allowing the Workers Compensation Appeal Tribunal to hear cases relating to the Charter of Rights and Freedoms or the Human Rights Code – presently WCAT is prohibited from hearing Charter challenges and claims under the Human Rights Code.
- Making corporate directors liable for unpaid premiums or other amounts owed to WorkSafeBC and introducing provisions for successor employers, subject to certain limitations (e.g. bankruptcy, two year limitation period).
- Allowing WorkSafeBC to correct or acknowledge obvious errors in decisions beyond the 75-day time limit.
The legislation will also apparently “fast-track” the effective date of presumptions for occupational diseases caused by viral pathogens, in order to ensure employees at higher risk of contracting contagious occupational diseases can access benefits quickly. This change is related to the current effort by WorkSafeBC to rush to inclusion of Covid-19 as an occupational disease under Schedule 1 of the Act.
These are significant changes that could have serious implications on employers, particularly in the form of increased premium payments, employees spending longer periods of time off work, and, perhaps most concerning, greater exposure to criminal liability. Some changes will also very likely contribute to an extension of litigation related to WorkSafeBC claims, which – again – increases costs for employers.
More information is available on the B.C. Government website, here. Employers may also wish to review the Parr Report, which was recently prepared for the Minister of Labour (available here) and formed the basis for introducing many of these changes.
Stay tuned for updates on the progress of the enactment of these amendments.
If you have any questions, or need assistance for any other matter relating workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.