Effective September 3, 2024, app-based ride-hailing and delivery service workers became “workers” under the Workers Compensation Act, RSBC 2019, c 1 (the “WCA”) and became entitled to benefits for work-related injuries. The provincial government also applied new Employment Standards Act, RSBC 1996, c 13 protections, such as minimum wage, per-km vehicle allowance, and pay transparency provisions to promote fair pay. These changes are a first in Canada, although Ontario is set to implement minimum wage requirements for digital platform workers on July 1, 2025. Some app-based employers shifted the increased operating costs to the consumer, adding a regulatory response fee to delivery orders. Other responsibilities can’t be transferred to the consumer. Creating a safety program, investigating workplace incidents, and managing workplace hazards fall on the employer.
Uber welcomes legally-able-to-drive applicants. Drivers who are deaf or hard of hearing can notify riders, ask them to manually input the destination, and turn off the call driver option. Complying with other vocational limitations and restrictions of a person with disabilities is a novel concept to the industry. The former WCA vocational rehabilitation scheme allowed employers to decline return-to-work arrangements to their injured workers. The Workers Compensation Amendment Act (No. 2), 2022, (“Bill 41”) heightened employer obligations to reintegrate persons with disabilities in the workplace. The duty to cooperate is one of these changes, requiring employers to identify suitable work that, if possible, restores the worker’s wages.
Bill 41 also introduced the duty to maintain the employment of certain workers with an accepted injury claim. This duty, also known as the duty to accommodate, applies, in part, to full or part-time workers employed continuously for at least 12 months before their injury. If a worker can carry out the essential duties of their pre-injury work, with or without accommodation, the employer must offer the worker their pre-injury position or alternate work with comparable duties and earnings. When a worker cannot return to their pre-injury position but can work in some capacity, the employer must offer them the first suitable work available and accommodate a worker to the point of undue hardship. Failure to do so may result in administrative penalties.
The duty to accommodate does not apply to a worker only because the person is deemed to be a “worker” under the WCA (s. 154.3 (2)(a)). Nor does it apply to employers, workers, or an industry or class of industries prescribed by the Lieutenant Governor in Council. At this time, there are no exclusions by the Lieutenant Governor in Council and it is unclear whether this duty applies to digital platform workers.
Digital platform workers could be exempt from accommodation provisions. Or the arrangement between the parties is between a worker and an employer. A delivery person for an application-based food delivery service has been found to be like an employee in an independent contractor/worker assessment with unique circumstances (Review Division decision dated January 27, 2022; R0282829 and R0282501). However, Review Division decisions are non-binding.
If the duty to maintain employment applies, app-based ride-hailing and delivery service employers will be faced with unique accommodation requirements previously handled by the independent contractor. Weight-bearing limitations are an example of a common functional restriction. How would an app-based employer filter orders by weight if restaurants do not weigh orders? Would requiring restaurants to weigh orders cause undue hardship? Limited stair climbing is another common restriction. Would requiring app users to describe home access or meet the worker in an unrestricted location cause undue hardship? These are questions to be determined as digital platform worker laws take shape in a previously minimally regulated industry.