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Alberta adds reinstatement requirements to workers’ compensation obligations

Breach may result in penalty equivalent to worker's salary

By David Marchione

On Dec. 15, 2017, Bill 30 (An Act to Protect the Health and Well-Being of Working Albertans) received royal assent, making significant changes to the Alberta Workers' Compensation Act. One significant change is the new requirement for employers to reinstate workers following workplace injuries. This obligation came into effect on Sept.1.

With this change in legislation and obligations, Alberta joins other provinces, such as Ontario, in requiring employers to reinstate workers who have been unable to work due to a workplace accident, if those workers have been continuously employed by the employer for at least 12 months (either full-time or part-time). The requirement to reinstate goes hand in hand with the employer's duty under human rights legislation to adjust the work or the workplace to the needs of the worker, up to the point of undue hardship.       

While employers have previously been required to assist workers in returning to suitable work following a workplace injury or illness, what is new is:

•the 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 potential for a penalty to be levied against the employer for failing to fulfil their obligations.

In the return-to-work process, workers and employers are expected to co-operate with the goal of assisting the worker with returning to work. There are requirements on both parties to contact each other following a workplace injury and to maintain contact throughout the period of the worker's recovery. Workers who do not co-operate in the return to work may have their benefits reduced or suspended.

Under Alberta's amended legislation, an employer who terminates a worker within six months of their reinstatement, or while the worker continues to receive compensation, will be presumed to have breached their reinstatement obligations. This presumption is rebuttable if the employer can demonstrate that the termination was unrelated to the worker's injury or their claim for benefits. If an employer breaches their reinstatement obligation, the WCB may levy a penalty on the employer up to the equivalent of the worker's net salary for the year before the accident. Penalty monies do not impact an employer's premiums. The obligation to reinstate ends when an employee declines to return to work.

Assisting an injured worker with returning to suitable work as quickly and safely as possible following a workplace injury remains an employer's best option for managing claim costs. Employers considering terminating a worker following a workplace injury should be aware of the new obligations and the potential cost impacts of doing so, should they be found to be in breach of their re-employment obligation.

David Marchione

David Marchione is an occupational health and safety consultant and paralegal at Fasken in Toronto. He can be reached at (416) 868-3468 or dmarchione@fasken.com, or visit www.ehslaw.ca for more information.
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