Workers Compensation Amendment Act (Bill 41)

This legislation creates further obligations for workers and employers From January 1, 2024.

S154(2): Duty to Cooperate – workers and employers will be under a legal duty to cooperate in a worker’s early and safe return to work. To be compliant:

An employer must:

1. Contact the worker as soon as possible after the injury and maintain communication with the worker.
2. Identify suitable work that restores full wages.
3. Provide the Workers Compensation Board (the “WCB”) with information it requires in relation to the workers return.

A worker must:

1. Contact the employer as soon as practicable after the injury and maintain communication with the employer.
2. At the request of the employer, assist in identifying suitable work that restores full wages.
3. Provide the WCB with information it requires in relation to their return.

Employer penalties:

1. If an employer fails to comply with its duty to cooperate, the WCB can impose a fine of up to $116,700. This is the 2024 maximum wage rate determined by the WCB and will be updated for each subsequent year.

Things to note:

1. The duty to cooperate has a retrospective effect and will apply to claims with injury dates up to two years before January 1, 2024.

S154(3): Duty to Maintain Employment – If a worker has been continuously employed with the employer for at least 12 months, and the employer regularly employs more than 20 workers, including contractors and consultants,

An Employer must:

1. Offer the worker the first suitable work that becomes available if the worker is fit to return to work, but not fit to carry out essential duties of their pre-injury work.
2. If the worker is fit to carry out essential duties of the pre-injury position, the employer must offer the employee pre-injury work, or comparable work and wages.
3. The workers employment cannot be terminated within 6 months of their return to work, unless the employer can prove the termination is unrelated to the injury.
4. Communicate in writing with workers that are on WCB leaves – DO NOT RELY ON WCB TO DO THIS ON THE EMPLOYERS BEHALF.
5. Be prepared to initiate accommodation processes with any workers on WCB leaves.

Things to note:

1. The duty to maintain employment has a retrospective effect and will apply to claims with injury dates up to six months before January 1, 2024.
2. The employer’s duty to maintain employment ends on the second anniversary of the date of the injury if the worker has not returned to work.
3. The employers duty to return the worker to the same or comparable work ends on the second anniversary of the date of the injury if the worker is carrying out suitable work.

The above is a summary of the law and does not constitute legal advice. We advise employers to familiarize themselves thoroughly with the law to ensure they are and will be compliant. Please contact Clark Wilson for expert guidance and support with any aspect of the above.

Modern Slavery Act: Bill S-211

This legislation is intended to curb the use of forced labour in the supply chains of Canadian companies. It will come into force on January 1, 2024  and will require companies that fall within its remit to file first reports by May 31, 2024.

Who must report?

The Act applies the following criteria to determine who must report:

1. Does the entity sell or distribute goods in Canada or elsewhere or import goods produced outside of Canada?
2. If yes, is the entity listed on a Canadian stock exchange, or does it have assets, a place of business or otherwise do business in Canada?
3. If yes, does it meet at least two of the following for one of the last two fiscal years?
   1. Have $20M in assets.
   2. Have $40M in revenue.
   3. Have 250 employees.

What must be reported?

1. The entity’s structure and supply chains.
2. Policies and due diligence processes in relation to forced and child labour.
3. Parts of the business and supply chains that carry a risk and steps to assess and manage that risk.
4. Measures taken to remediate forced and child labour and loss of income to families.
5. Training provided to employees on forced and child labour.
6. The effectiveness in ensuring forced and child labour is not used in business and supply chains.

How is it reported?

The report must be made publicly available, by being placed on the entity’s external website.

What are the penalties for not reporting?

1. Failure to report = $250,000.
2. Reputational risk.

Actions to be taken now

1. Develop policies and processes for selecting suppliers.
2. Research employment practices of current and potential suppliers.
3. Consider including contractual obligations for suppliers to avoid using forced and child labour.