A Guide to BC Employers' 2024 Return-to-Work Duties

Michelle S. Jones and Miny Atwal of Lawson Lundell summarize new return-to-work duties, identify potential consequences of non-compliance, and highlight key considerations for counsel to employers

On November 24, 2022, BC’s Workers Compensation Amendment Act[1] received Royal Assent, introducing many new changes to the Workers Compensation Act (the “Act”). Of these changes, the most significant include two new return-to-work obligations on employers and workers: the duty to cooperate and the duty to maintain employment of an injured worker.[2] BC now joins eight other Canadian jurisdictions that impose similar duties.

According to the BC government, these new duties are intended to: (a) encourage timely, suitable, and durable return to work; (b) preserve employment relationships; and (c) reduce the risk of joblessness and financial impact of the workplace injury.

With these new return-to-work obligations coming into force on January 1, 2024, BC employers must adapt their current return to work policies to reflect these significant changes in navigating workers’ return to-work.

In this article, we summarize the content of these new duties, identify potential consequences of non-compliance and highlight some key considerations for counsel in light of these changes.


While the Act sets out the framework of these new duties, WorkSafeBC’s policies flesh out key terms and provide guidance on how it expects workers and employers to interpret and implement these duties.

On November 9, 2023, WorkSafeBC’s Board of Directors approved policy changes to provide guidance on these new return-to-work obligations.

These new policies:

  • Provide an overview of the new obligations and terminology.
  • Outline the mutual obligations of workers and employers to cooperate in facilitating timely and safe return to, or continuation of, work.
  • Provide guidance on which employers and workers will be affected by the duty to maintain employment, and what those obligations will entail.
  • Provide guidance regarding WorkSafeBC’s ability to impose administrative penalties on employers who fail to fulfill their obligations

(collectively, the “Policies”)

Duty to Cooperate

The duty to cooperate creates a duty for all employers and workers in BC to cooperate with each other and WorkSafeBC during the return-to-work process. This duty will apply to claims with a date of injury on or after January 1, 2022 and all decisions or actions made on a claim on or after January 1, 2024.[3]

The duty to cooperate creates reciprocal requirements for the employer and worker to:

  • Contact the other party as soon as practicable after the worker is injured and maintain communication;[4]
  • Cooperate in identifying suitable work[5] that, if possible, restores the worker to pre-injury wages;
  • Provide WorkSafeBC with information required to support return to work efforts; and
  • Do any other thing required by WorkSafeBC.

The Policies also create an obligation on an employer to, where reasonable, make suitable work available to the worker. The worker then has a corresponding obligation to not unreasonably refuse suitable work when it has been made available by any employer.  If the worker unreasonably refuses suitable work, WorkSafeBC will reduce their compensation by the amount they could have earned had they accepted the offer of work.

Duty to Maintain Employment

Some employers will also have a duty to maintain the employment of an injured worker. This duty will apply to claims with a date of injury on or after July 1, 2023 and all decisions or actions made on a claim on or after January 1, 2024.[6]

This duty will apply only to a BC employer if:

  • it regularly employs 20 or more workers; and
  • the worker has been continuously employed with the employer for at least 12 months.

The duty to maintain employment depends on the worker’s fitness to work:

  1. Where a worker is fit to work, but not to carry out the essential duties of their pre-injury work, the employer must offer the worker “the first suitable work[7] that becomes available”.
  1. Where a worker is fit to carry out the essential duties of their pre-injury work, the employer must either: (a) offer the pre-injury work to the worker; or (b) offer the worker “alternative work of a kind and at wages that are comparable to the worker’s pre-injury work and wages from that work”.[8]

The duty to maintain employment also requires employers to make any changes necessary to the work or workplace to accommodate[9] an injured worker, to the point of undue hardship.[10] These obligations are similarly found in the BC Human Rights Code.

Further, if an employer terminates a worker’s employment within six months of them returning to work, the employer is deemed to have failed its duty to maintain employment, unless the employer can establish, on a balance of probabilities, that the termination was not related to the worker’s injury.

Consequences of Non-Compliance

Failure to comply with the duty to cooperate or duty to maintain employment can result in the employer receiving an administrative penalty.

The Policies create two different methods for calculating administrative penalties:

  • For the duty to cooperate, the penalty amount will generally be equal to the cost of wage-loss or similar benefits being paid to the worker.
  • For the duty to maintain employment, the penalty amount will generally be the greater of the worker’s long-term average earnings as determined by WorkSafeBC up to the maximum wage rate, or an amount equal to 50% of the maximum wage rate.[11]

However, before issuing an administrative penalty, WorkSafeBC will:

  • Contact the employer and identify the specific obligation(s) that the employer is failing to comply with, and advise that it may impose an administrative penalty.
  • Provide the employer with a reasonable opportunity to comply or provide an explanation for non-compliance.

If the employer’s non-compliance continues, WorkSafeBC will issue an administrative penalty.

Practical Tips for Employers

Evidently, these new duties will require increased efforts on BC employers in returning injured workers to work.

Counsel advising employers on these changes should not underestimate their immediate effect. In some cases, the duties may be triggered as soon as January 1, 2024.[12] For example, if a worker was injured in 2023 and continues to receive wage-loss benefits as of January 1, 2024, the duty to cooperate is triggered as soon as practicable after January 1, 2024. It may be worthwhile advising clients to undertake an inventory of existing injuries to which the duties may apply immediately upon coming into force.

Counsel will also want to emphasize to clients the importance of recordkeeping to enable them to prove their efforts in communicating with the other side regarding return to work and suitable duties. The precise frequency and nature of the communication will vary on a case-by-case basis taking into consideration the severity of the injury and expected duration of the recovery time.[13]  However, gone are the days where communication between the parties ceased for the length of the injury, rekindling only in the days leading up to return to work. Similarly, records should be kept of what duties (whether it be pre-injury, alternative or suitable duties) are being offered to a worker in anticipation of a return to work, or an explanation of why the employer is unable to provide such duties.

Counsel advising employers that seek to terminate a worker’s employment within six months of their return-to-work will need to be mindful that their client will bear the burden of proving that the termination was unrelated to the worker’s injury. Records of the decision-making process including documentation of the basis for the termination will become critical to meeting this evidentiary burden. In the absence of supporting documents, WorkSafeBC may conclude that the employer breached its duty and levy an administrative penalty as a result. 


Michelle Jones is a partner in Lawson Lundell’s Vancouver office. Her practice focuses on the area of Occupational Health and Safety (OH&S). She advises clients on their regulatory obligations and represents them in related administrative and litigation proceedings. Additionally, Michelle works closely with project proponents, advising them on Indigenous law issues and representing them before regulatory bodies and courts.

Michelle works closely with employers to equip them with the policies, procedures and training tools that will help limit their exposure to OH&S issues. She collaborates with her clients to craft holistic prevention plans that will address their unique needs and concerns. Some of the work she typically does in this area includes:

  • understanding regulatory requirements to ensure compliance;
  • developing and implementing compliant policies and procedures;
  • audit policies and procedures;
  • undertaking workplace investigations into injuries or bullying and harassment complaints;
  • responding to regulatory orders and infractions;
  • responding to critical incidents, fatalities and serious injuries;
  • supporting investigation processes;
  • representing clients who are charged or fined; and
  • advising clients on due diligence.

Additionally, Michelle advises employers Workers Compensation obligations. In particular, she has expertise in Workers Compensation claims and assessments, prohibited action complaints and cost transfer claims.


Miny Atwal is an associate in the Labour, Employment and Human Rights Group in Vancouver. She practices in all aspects of workplace law including employment standards complaints, human rights issues, labour grievances, workplace bullying and harassment, workers’ compensation claims, and occupational health and safety matters. She also advises clients on the hiring and termination of employees, and prepares employment agreements.

Miny started at Lawson Lundell as a summer student in 2020 and joined the firm as an associate upon the completion of her articles in 2022. Prior to joining Lawson Lundell, Miny worked as a review officer intern at WorkSafeBC, adjudicating workers’ compensation claims on appeal. During law school, she worked as a research assistant and volunteered with Pro Bono Students Canada.


[1] (No. 2), 2022, S.B.C. 2022, c. 37 (Bill 41).

[2] These duties are outlined in sections 154.1 to 154.6 of the Act.

[3] To trigger the duty to cooperate, the worker must have suffered an injury arising out of and in the course of employment, and be disabled from earning full wages as a result.

[4] The Policies state that the worker and employer do not have to contact or maintain communication with each other, if doing so is likely to imperil or delay the worker’s recovery. As such, determining the frequency of the communications with an injured worker will vary on a case-by-case basis.

[5] The Policies define suitable work as “work that is safe, productive and consistent with the worker’s functional abilities and skills”.

[6] To trigger the duty to maintain employment, the worker must have suffered an injury arising out of and in the course of employment, and be disabled from earning full wages as a result.

[7] Suitable work is defined the same as under the duty to cooperate (as set out in footnote 5).

[8] In other words and as defined in the Policies, alternative work is “a job that is different from, but comparable to, the worker’s pre-injury work and wages from that work”.

[9] As defined in the Policies, accommodation is the “process of changing the work and/or the workplace to be consistent with the worker’s functional abilities”.

[10] The Policies set out that undue hardship is “the point at which it is too difficult, too expensive, or unsafe for the employer to accommodate the worker”, which is determined based on the relevant facts and circumstances of each case.

[11] For 2024, the maximum wage rate is $116,700.

[12] That is, assess whether it has any employees currently receiving wage-loss benefits from WorkSafeBC as of January 1, 2022 (for the duty to cooperate) and July 1, 2023 (for the duty to maintain employment). 

[13] However, where contact and communication between the employer and worker are “likely to imperil or delay the worker’s recovery”, this obligation does not apply.



Michelle Jones