Background

The British Columbia government is introducing changes to the workers’ compensation system (WorkSafeBC) intended to better support injured workers and enhance WorkSafeBC’s ability to investigate workplace incidents.

Since 2008, B.C. Labour Minister Harry Bains has commissioned no fewer than five reports reviewing the employer-funded compensation system. The reports have been authored by Jeff Parr, Janet Patterson, Lisa J. Helps, Terrance J. Bogyo and Paul Petrie.

On July 14, 2020, Minister Bains introduced Bill 23, Workers’ Compensation Amendment Act, 2020, stating the changes are an important step in modernizing the Workers Compensation Act, ensuring workers and their families get the support they need, while also increasing everyone’s confidence in the system.

Meantime, WorkSafeBC’s Board of Directors, following a brief consultation, decided on July 22, 2020 to add COVID-19 to the list of communicable diseases considered workplace diseases per Schedule 1 of the Workers Compensation Act. The addition is currently scheduled to come into effect in October 2020. UPDATE: The waiting period required for additions to Schedule 1 was waived with the passage of Bill 23 in August 2020.

Also in July 2020, Minister Bains asked WorkSafeBC’s Board of Directors to consider changes to the Occupational Health & Safety Regulation (OHSR) Part 8, Personal Protective Clothing and Equipment (Hard Hats). Under the current regulation, safety headgear must be worn by a worker in any work area where there is a danger of head injury from falling, flying or thrown objects, or other harmful contacts.

The Sikh community has raised concerns employers are effectively applying this section as a blanket requirement, resulting in turban-wearing Sikh workers not being able to fully participate in the workforce. WorkSafeBC is considering amendments the OHSR to continue to protect the health and safety of turban-wearing Sikhs, while providing accommodation where there is no risk of head injury.

The latest proposed changes come at a time when employers are still awaiting the release of the Workers Compensation System Review report written by Janet Patterson, who was appointed in March 2019. Her review, which was submitted to government in fall 2019, was to assess:

  • the system’s policies and practices that support injured workers’ return to work;
  • WorkSafeBC’s current policies and practices through a gender- and diversity-based analysis (commonly referred to as GBA +);
  • modernization of WorkSafeBC’s culture to reflect a worker-centric service delivery model;
  • the case management of injured workers; and
  • any potential amendments to the Workers Compensation Act arising from this focused review.

Issue

VRCA is opposed to proposed changes to the Workers Compensation Act and the Occupational Health & Safety Regulation, specifically:

Bill 23, Workers’ Compensation Amendment Act, 2020
Bill 23 will add significant costs to B.C. employers who fund WorkSafeBC and will introduce changes that will put at risk the financial stability of the workers’ compensation system. It is ill-timed, ill-considered, and ignores broad-based and repeated requests from the business community to government to ‘do no harm’ as we focus on COVID-19 recovery and getting British Columbians back to work safely. Specifically:

  • Bill 23 increases the maximum wage rate from $87,100 to $100,000 as the basis for calculating workers’ compensation claims. This will likely result in higher premiums for employers.
  • Bill 23 requires that permanent partial disability (PPD) awards be calculated based on the higher of the amounts stemming from the two potential calculations of a loss of earnings or loss of function. This will likely result in increased PPD award payments, which will increase the cost of assessments to employers.
  • Bill 23 allows flexibility for recognition of later retirement ages (over age 63 and depending on the workers’ individual circumstances). This will correspond with workers receiving compensation for longer periods.
  • Bill 23 expands the Board’s authority to reconsider a decision on its own initiative beyond the current 75-day time limit if there is “an obvious error or omission.” The definition of “obvious” is not provided and there is no time limit as to how far back the Board could go in reviewing a past decision.
  • Under Bill 23, if a worker contracts COVID-19 they will be presumed to have contracted the disease while working.

Inclusion of COVID-19 in Schedule 1 (Presumption)
The COVID-19 pandemic is a public health crisis, not a workplace health crisis. By adding COVID-19 to the list of communicable diseases that WorkSafeBC presumes was caught at work, public health costs will be transferred to the Workers’ Compensation system which is funded by employers.

As of September 23 , 2020, WorksafeBC had accepted only one claim for COVID-19 from the construction industry while 10 had been disallowed and three required no adjudication. By adding COVID-19 to Schedule 1, WorkSafeBC will be dismissing the tremendous efforts made by everyone within the industry to operate safely as an essential service and position our province for economic recovery.

The waiting period to add COVID-19 to Schedule 1 will be waived if Bill 23 is passed into law, allowing COVID-19 presumption to come into immediate effect following a decision by the WorkSafeBC Board of Directors.

Occupational Health & Safety Regulation Part 8, Personal Protective Clothing and Equipment (Hard Hats)
Construction sites are complex and ever-evolving environments. Hard hats are universally required because there is always a risk of head injury on site. If hard hat exemptions are implemented, it will result in unnecessary confusion for employers and workers, require significant monitoring and administration and expose organizations and their workers to legal liability.

While VRCA respects religious freedom for all Canadians, the proposed changes are ill-informed, impractical and irresponsible changes that undermine the universal requirement to wear a hard hat on site that has been a fundamental part of site safety for decades.

Workers Compensation System Review by Janet Patterson
The 46 employer community partners, which includes VRCA, formally withdrew from the Patterson Review on Aug. 14, 2019 after losing confidence that the review can be conducted in an independent, impartial and balanced manner.

The employer community lost confidence in the Patterson Review after it was learned that the “selected issues” identified by the Reviewer for further consultation with key stakeholders encompass 23 of the 24 recommendations set out in a report commissioned by the BC Federation of Labour in 2009 entitled “Insult to Injury – Changes to the BC Workers’ Compensation System.” Ms. Patterson co-authored the “Insult to Injury” report.

The list of “selected issues” indicates to the employer community that the Patterson Review is broad and far-reaching and calls into question the Reviewer’s ability to deliver her review in an independent, impartial and balanced manner.

Initially, VRCA and the employer community was concerned that the Terms of Reference of the Review were vague and open to speculation in their interpretation.

We were also concerned that the compressed timeline set for the Review may compromise the ability to have proper examination and full and meaningful consultation with industry stakeholders such as ourselves.

Current Status

Bill 23, Workers’ Compensation Amendment Act, 2020
Bill 23 – Workers Compensation Amendment Act – received Royal Assent on August 14, 2020.

Inclusion of COVID-19 in Schedule 1 (Presumption)
The WorkSafeBC Board of Directors decided on July 22, 2020 to add COVID-19 to the list of communicable diseases considered workplace diseases per Schedule 1 of the Workers Compensation Act. The waiting period required for additions to Schedule 1 was waived with the passage of Bill 23 in August 2020

Occupational Health & Safety Regulation Part 8, Personal Protective Clothing and Equipment (Hard Hats)
WorkSafeBC will be holding a public hearing on proposed amendments to the Occupational Health and Safety Regulation. The virtual public hearing will be streamed live on September 30, 2020, in two sessions. The first will be from 11 a.m. to 1 p.m. and the second from 3 to 5 p.m. Details on how to view or participate in the virtual public hearing will be posted on WorkSafeBC’s website by September 1, 2020. UPDATE: WorkSafeBC postponed the public hearings scheduled in this matter following the announcement of the provincial election forOctober 24, 2020. A new public hearing date has not been set.

Workers Compensation System Review by Janet Patterson
Janet Patterson submitted her report to Minister Bains in October 2019. The report was released in August 2020.

Status Updates

  • On July 31, VRCA joined its industry partners in opposing proposed changes to Occupational Health & Safety Regulation (OHSR) Part 8, Personal Protective Clothing and Equipment (Hard Hats) known in the industry as “the hard hat regulation”, being promoted by Minister of Labour Harry Bains in response to concerns raised by the Sikh community. Read more.
  • On July 24, VRCA endorsed the Employers’ Forum letter to B.C. Labour Minister Harry Bains expressing significant and serious concerns with Bill 23, Workers’ Compensation Amendment Act, 2020. Read more.
  • On June 8, VRCA endorsed the Employers’ Forum submission to WorkSafeBC opposing the addition of COVID-19 to the list of communicable diseases considered workplace diseases. Read more.
On Oct. 30, the Employers’ Forum wrote to B.C. Minister of Labour Harry Bains to express concern that it has had minimal input into the three government-commissioned reviews of B.C.’s workers’ compensation system. The 46 business and industry associations that signed the letter urged the minister to provide stakeholders with a structured opportunity for feedback, framed by a consultation paper, before proceeding with any legislative changes. Read the Employers’ Forum letter
  • On Aug. 14, VRCA and 45 other business and industry associations pulled out of the latest review of WorkSafeBC after losing confidence that the review can be conducted in an independent, impartial and balanced manner. Read the news release. Read the employer community’s Aug. 14 letter to Janet Patterson. Read the Employers’ Forum’s Aug. 14 statement on behalf of the 46 employer community partners.
  • On Aug. 2, the Employers’ Forum wrote the WorkSafeBC board on behalf of the 46 employer community partners in response to the July 18 release of the report by Terrance Bogyo. The letter urges the Board of Directors of WorkSafeBC and, by extension, the Government of British Columbia to take the time necessary to engage properly with key communities of interest in BC’s workers’ compensation system before there is any further internal consideration of, or action taken on, Mr. Bogyo’s report. Read the Employers’ Forum letter.
  • On July 30, 2019, VRCA signed an addendum to the employer community submission endorsed by 46 sectoral and cross-sectoral business organizations, that makes several general comments arising from the Bogyo Report that was released on July 18, 2019, and is potentially an input to the Patterson Review.  Read VRCA’s cover letter. Read the addendum to the employer community submission.
  • The Council of Construction Associations, of which VRCA is a member, also responded to the release of the Bogyo Report. Read COCA’s letter.
  • On July 18, VRCA signed an employer community submission endorsed by 46 sectoral and cross-sectoral business organizations which collectively represent small, medium and large businesses in virtually all aspects of the B.C. economy. Read VRCA’s cover letter. Read the employer community submission.
  • The Council of Construction Associations, of which VRCA is a member, also endorsed the employer community submission. Read COCA’s cover letter.