Duty to Reinstate and Accommodate Injured Workers
As of September 1, 2018, employers in Alberta are subject to strict return to work requirements under the Alberta Workers' Compensation Act (the Act). The Act now requires employers in Alberta to reinstate workers who have been unable to work due to a workplace accident, if those workers had been continuously employed by the employer for at least 12 months as of the date of the accident.
When reinstating an employee, employers are subject to a duty to accommodate the worker to the extent that accommodation does not cause undue hardship. In determining whether an employer has met its obligation to accommodate the worker to the point of undue hardship, the Workers' Compensation Board (WCB) will consider the following factors:
- Employer size and available resources;
- Disruption of operations;
- Health and safety concerns;
- Substantial interference with rights of others;
- Financial costs;
- Interchangeability of work force and facilities; and
- Morale due to accommodation.
The duty to accommodate imposed by the Act is in addition to the duty to accommodate established by the Alberta Human Rights Act. However, WCB's jurisdiction regarding determining whether an employer has met its obligations to accommodate the worker to the point of undue hardship is limited to workplace accommodations required for work injuries. Additional accommodation requirements based on other protected grounds (for example, family status) fall under the jurisdiction of the Alberta Human Rights Commission.
Presumed Breach
Employers will be presumed to have breached their return to work obligations under the Act where the employer has reinstated a worker and then terminates that worker's employment within six months of the latter of (a) the reinstatement, or (b) while the worker is receiving compensation under the Act. However, an employer may rebut this presumption if it can demonstrate that its decision to terminate was not related to the worker being or having been unable to work as a result of the workplace accident.
Potential Administrative Penalties
If an employer does not cooperate or fails to meet one of the above obligations, WCB may levy an administrative penalty in an amount up to the worker's net average earnings for the year before the accident.
If a dispute concerning an employer's obligations arises under the Act, either the employer or the employee must notify the Board, and within 60 days of that notice the Board must determine whether the employer has fulfilled its obligations to the employee.
What do Employers Need to Know?
Employers should be aware of and understand the 2018 changes to the Act, which include:
- a legal requirement to reinstate workers for a period of time following a workplace injury, if they have been unable to work because of the injury;
- the requirement to reinstate includes a duty to accommodate the worker to the point of undue hardship;
- an employer who terminates a worker within six months of the worker's reinstatement, or while the worker continues to receive compensation, will be presumed to have breached their reinstatement obligations under the Act; and
- there is the potential for a significant penalty to be levied against the employer unless they can demonstrate the dismissal was for reasons unrelated to the employee's workplace injury.
The recent changes to the Act highlight the importance of employers having a comprehensive return-to-work plan in place for workers injured on the job. Employers should also maintain proper records regarding any termination that is unrelated to a workplace injury leave.
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