Worker Status for Workers' Compensation (7:VIII)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.|
While most people who work in BC will be covered by the WCA, not everyone is covered. No claim will be successful if it is found that an individual does not have worker status.
The WCA was amended on January 1, 1994 to expand the range of workers covered. All workers are now covered unless specifically exempted. Chapter 2 of the RSCM II sets out the general principles of inclusion and the exceptions. The Assessment Manual at Policy Items AP1-1-1 through AP1-1-7 sets out the principles governing coverage for employers and workers under the WCA. Even certain volunteers are covered, as are students engaged in work-study programs that are approved by the Board. Before this amendment, most office workers and other white-collar workers were not covered. Since the amendment, only a few exceptions have been recognized, such as professional athletes who have accepted a high level of risk, casual babysitters, and non-residents. Requests for exemptions may come from workers and employers or may be initiated by the Board. Decisions regarding exemption status may be appealed.
The Assessment Manual sets out certain exclusions at Policy Item AP1-4-1. Issues surrounding variances, specific industries, and personal optional protection (generally used by self-employed individuals) are discussed at Policy Items AP1-4-2 to AP1-8-1.
It is important to note that if a worker chooses to pursue compensation through WCB, it means that they forego their right to sue for damages in tort. Where the tortfeasor is not a worker or employee, WCB may pursue claims against non-workers.
Some special cases are set out below, but at all times, the most recent version of policies in Chapter 2 of the RSCM II should be consulted if “worker status” is an issue.
B. Workers in Federally Regulated Industries
While working in BC, workers in federally regulated industries are directly subject to the workers’ compensation system.
C. Federal Government Employees
Federal government employees are governed by the Government Employees Compensation Act, RSC 1985, c G-5 which provides that injured federal government workers in a given province are to have their claims addressed by the provincial administrative body in that province. They are then entitled to be compensated at a rate determined under the provincial workers’ compensation scheme of the province in which they are employed but paid out of a federal fund. See RSCM II, #8.10.
D. Workers Who Suffer an Injury While Working Outside BC
Workers who suffer an injury while working outside BC may be covered if:
- they work in a compensable industry;
- BC is their usual place of employment;
- the extra-provincial work lasts less than six months;
- the work is a continuation of their BC employment; and
- they are working for a BC employer or an employer located outside of BC where the Board has entered into an interjurisdictional agreement (WCA s. 335 [Former Act, s. 8.1]).
There are also special requirements for trucking & transport businesses. On top of WorkSafeBC coverage, employers must check the registration requirements with the Workers’ Compensation Authority in the jurisdiction the worker will be working or travelling through. See RSCM II, #112.00 – 112.40
E. Workers Under the Age of Majority
Section 121 of the WCA [Former Act, s. 12] states that a worker under the age of 19 is sui juris for the purpose of Part 3 of the Act [Former Act, Part 1], which means that workers who are minors are under no legal disability and are considered, for purposes of the Act, capable of managing their own affairs as if they were adults.
If a person is a self-employed proprietor or partner in a partnership who operates an independent business then they are not automatically covered under the WCA. In general, they are entitled to seek coverage by purchasing optional workplace disability insurance, also known as Personal Optional Protection. Personal Optional Protection will pay health care, wage-loss, and rehabilitation benefits if the person is injured at work. See Assessment Manual Policy Item 1-4-3.
When a self-employed person with Personal Optional Protection is injured, their claim is processed as if they were a “worker” under the Act (s. 215 [Former Act s.33.6]) and their wage rate is set according to their level of Personal Optional Protection coverage (See RSCM II #67.20).
A labour contractor who does not have Personal Optional Protection and does not operate an independent business may be covered, as a worker by the prime contractor. This is regardless of whether they are eligible for WorkSafeBC coverage or have declined to purchase WorkSafeBC’s optional coverage.
Below are examples of situations where a contractor would likely be a worker:
- The contractor supplies only labour
- The contractor supplies labour and minor materials such as nails, drywall tape, or putty
- The contractor supplies labour and a piece of major equipment but is not registered with WorkSafeBC
The key issues in the acceptance of claims from self-employed persons tend to be the exact nature of their employment, their coverage and the appropriate wage rate. Practice Directive #C9-1 “Coverage and Compensation for Self-Employed Persons” sets out a helpful chart on the different types of self-employment and their coverage under the Act.
Employers are also covered by and have duties under the WCA, including contributing to the Accident Fund based on compulsory assessments. The Board sets an assessment rate for each employer based on a complex system of classification relating to the type of business and previous accident rates. Employers should be referred to the Employers’ Advisors Office for specialized assistance, without charge, in these matters (see Appendix on Referrals).
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