Amendments Made To The Workers Compensation Act Impact BC Businesses

The Workers Compensation Amendment Act, 2020 (“Bill 23”) received Royal Assent on August 14, 2020, bringing its amendments to the Workers Compensation Act, RSBC 2019, c. 1 (the “Act”) into force.

Bill 23 made 34 changes to the Act. These changes address COVID-19, worker benefits entitlement, regulatory compliance and the collection of unpaid assessments.

Effective immediately, Bill 23 fast-tracks WorkSafeBC's July 22, 2020 resolution of its Board of Directors providing a presumption of workplace causation of infections caused by communicable pathogens, including COVID-19, that are subject to:

1. A notice given under section 52(2) of the Public Health Act;
2. A state of emergency declared under section 9(1) of the Emergency Program Act;
3. A state of local emergency declared under section 12(1) of the Emergency Program Act; or
4. An emergency declared under section 173 of the Vancouver Charter.

For the presumption to be applicable, the worker must be working in a process or industry in the geographic area and time subject to the above where there is a risk of exposure to a source or sources of infection significantly greater than that to the public at large.

This change follows a study commissioned by WorkSafeBC to assess the risk of COVID-19 infections in the workplace. In May 2020, WorkSafeBC published The Risk of COVID-19 Infection Among Workers, which concluded that based on current epidemiologic research there was no consistent association between work within a specific occupation and a greater risk of COVID-19 infection. This study noted there was some evidence for an increased risk of infection within some cohorts of health care workers; however, the only Canadian evidence to date indicated a decreased risk of infection of health care workers relative to the general population.

Further guidance on what constitutes a source of infection significantly greater than that to the public at large has yet to be provided in WorkSafeBC policy or determined through application of this policy by WorkSafeBC.

Consequently, if a worker contracts COVID-19 while working in an industry identified as posing a risk of infection significantly greater than that to the public at large, the worker is entitled to a presumption that COVID-19 was caused by the worker's employment, “unless the contrary is proved”.

Employers should be aware of additional changes made to the Act that are now in place, including:

• Authorizing WorkSafeBC to provide preventative medical treatment on pending claims where there is a significant chance of deterioration in a claimant's health;
• Permitting WorkSafeBC to obtain search and seizure warrants where there are reasonable grounds to believe that an offence under the Act or its regulations has or is being committed;
• Expanding liability for directors of corporation, making them jointly and severally liable for debts owed to WorkSafeBC in certain circumstances; and
• Permitting WorkSafeBC to demand unpaid amounts an employer owes WorkSafeBC from third parties who are indebted to or likely to become indebted to the employer.

Other changes will take effect January 1, 2021. These include changes to worker entitlement to permanent partial disability awards and raising the maximum annual salary amount on which workers' compensation benefits are based.

Previously, WorkSafeBC permanent partial disability awards were granted on the basis of a loss of function calculation unless the worker's loss of earnings was “so exceptional” as to warrant a loss of earnings award. Workers will soon be entitled to the greater of the calculation of their loss of earnings award or loss of function award in all cases.

The maximum annual salary amount on which workers' compensation benefits are set was based on an inflation-adjusted average of $40,000 starting from the year set out in 1984. The Board had calculated this amount as $87,100 for the calendar year 2020. The wage rate was raised to an inflation adjusted average to be calculated from 2019 of $100,000, and the 2021 wage rate was also set at $100,000.

This increase will impact employers of workers who earn above the prior maximum wage rate. While such workers will be entitled to additional benefits, employers of workers earning more than the previous maximum will be assessed on a higher assessable payroll and will experience an increase in assessments as a result.

Summary

Significant changes have been made to the Workers Compensation Act, including the fast-tracking of a workplace presumption for COVID-19 infections for workers in at-risk industries. Further changes increase workers' entitlement to benefits and expand WorkSafeBC's powers to pursue directors or third parties for unpaid assessments or other amounts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.