Canada: Bill 30 Receives Royal Assent

Last Updated: December 20 2017
Article by David G. Myrol and Daniel R. Bokenfohr

Employers and other workplace stakeholders have little time to waste in preparing for the upcoming changes to Alberta's Occupational Health and Safety and Workers' Compensation legislation.

Bill 30: An Act To Protect The Health And Well-Being Of Working Albertans, which amends Alberta's Occupational Health and Safety and Workers' Compensation legislation, has now passed third reading and will come into force in the new year.

The Bill was been heralded by the Alberta Government as greatly improving the province's OHS and WCB statutory schemes. While time will tell if meaningful improvements are achieved, we know for certain that this overhaul of Alberta's OHS and WCB laws will enlarge the bureaucracy of both regulatory regimes and impose further layers of substantive and administrative obligations on employers and other industry stakeholders. Alberta businesses will also need to adjust quickly, with many WCB changes taking effect January 1, 2018 and most OHS changes taking effect June 1, 2018.

OHS Changes

The scale of changes to Alberta's OHS legislation will be dramatic, including:

  • Broadening the concept of workplace "health and safety" to include the requirement that employers and other stakeholders ensure the psychological and social well-being of workers. This will include the requirement to protect against harassment, bullying and psychological violence.
     
  • Expanding the definition of employer to include (additions in italics) any person who employs or engages a worker (including self-employed persons and persons engaged for no monetary compensation), any person designated as the employer's representative, and any director, officer or other person employed by an employer to oversee the health and safety of its workers.
     
  • Imposing more general duties on employers under the Alberta Occupational Health and Safety Act ("OHS Act"). Employers general duties under the OHS Act will now include (additions in italics):

    • ensuring the health and safety and welfare of their workers, other workers present at the worksite, and members of the public at or in the vicinity of the worksite who may be affected by workplace hazards;

    • ensuring their workers are aware of their duties and rights under the OHS Act, Regulations and Code, as well as any health and safety issues arising from the work being conducted at the worksite;

    • ensuring workers are adequately trained in all matters necessary to protect their health and safety before starting work (and before introducing a new activity, process, equipment or work area);

    • ensuring their workers are not subjected to or participate in harassment or violence at the workplace;

    • ensuring their workers are supervised by someone competent and familiar with the relevant requirements of the OHS Act, Regulations and Code;

    • establishing and consulting with a worksite safety representative or joint worksite health and safety committee (as applicable);

    • resolving in a timely manner any health and safety concerns raised by in the workplace;
       
    • advising the prime contractor (where applicable) of the names of their supervisors; and

    • making all health and safety information readily available to the:

      • joint worksite health and safety committee, health and safety representative (where applicable) or workers; and

      • prime contractor, if there is one.

  • Changing when prime contractors are required at a worksite and expanding their general duties under the OHS Act. Prime contractors will be required for construction and oil and gas worksites, as well as any other worksites or classes of worksites designated by the OHS director, if there are 2 or more employers and/or self-employed persons involved in work at the work site. The person in control of the worksite is deemed to be the prime contractor unless they designate in writing another person. The name of the prime contractor must be posted at the worksite, and their obligations will now include (additions in italics):

    • establishing a system or process to ensure compliance with the OHS Act, Regulations and Code at the worksite;
       
    • coordinating, organizing and overseeing the performance of all work at the worksite to ensure that no person is exposed to hazards;

    • consulting and cooperating with the joint worksite health and safety committee or health and safety representative, as applicable;

    • coordinating the health and safety programs of employers and self-employed persons on the worksite;

    • reporting to the employer or supervisor any concerns about unsafe or harmful worksite acts or conditions; and

    • ensuring the owner and any employer or other parties on the worksite are informed of any existing or potential hazards.

  • Adding to the list of stakeholders responsible for workplace health and safety under the OHS Act, including supervisors, owners, service providers and temporary staffing agencies:

    • Supervisors (defined as person having charge of a work site or authority over a worker) will face a number of key obligations, including:

      • ensuring their own competence to supervise and taking all precautions necessary to protect the health and safety of every worker under their supervision;
         
      • ensuring that workers under their supervision:

        • follow all procedures and measures, required by the OHS Act, Regulations or Code;
           
        • use all hazard controls and PPE designated or provided by the employer or required by the Act, Regulations or Code; and
           
        • are not subjected to, or participate in, harassment or violence at the worksite;
           
      • advising every worker under their supervision of all known or reasonable foreseeable hazards in the work area; and
         
      • reporting to the employer any unsafe act or condition at the worksite.
         
    • Worksite owners will be required to ensure:

      • their land and premises are provided and maintained in a manner that does not endanger the health and safety of workers or other persons; and
         
      • identified hazards are communicated to all workers, employers, and other parties conducting, or reasonably anticipated to conduct, work activities on their land.
         
    • Service providers (any person who provides training, consulting, testing, program development or other services in respect to any occupation, project or worksite) must ensure that their services are provided by a competent person and do not endanger any persons at or near the worksite.
       
    • Staffing agencies must ensure that any workers assigned to another employer are suitable to perform the task for which they are assigned, will be equipped with any necessary PPE prior to the commencement of work, and have been deployed to an employer who is capable of ensuring their health and safety.
       
  • Expanding the scope of work that workers may refuse to perform, and enhancing pay protection for those that do. The duty to refuse work that poses an imminent danger will be replaced with the right to refuse work whenever it is reasonably believed that there is a dangerous condition at the worksite or the work constitutes a danger to the health and safety of any person. Workers will be entitled be paid their normal wages and benefits while a work refusal is being investigated, but may be temporarily assigned to alternative work.
     
  • Expanding the protection of workers against reprisal. Employers will now face a presumption of improper motive any time they take action in respect to any terms or conditions of employment of a worker who has refused work, raised health and safety concerns or otherwise participated in activities under OHS Act, Regulations or Code.
     
  • Increasing the requirement for workforce participation in health and safety management by requiring the establishment of a health and safety representative or joint worksite health and safety committee at many worksites. Committees will be required at any worksite with 20 or more workers if work is expected to last 90 days or more, with at least half of the members being selected by the workforce. Designated health and safety representatives will be required at worksites with 5-19 workers if work is expected to last 90 days or more, and must be selected by the workforce. These bodies will play a significant role in health and safety matters, such as:

    • conducting regular inspections of the worksite;
       
    • participating in the investigation of serious injuries and incidents at the worksite;
       
    • addressing health and safety concerns, complaints and refusals to work;
       
    • participating in hazard identification and the development of measures to protect health and safety at the worksite;
       
    • meeting regularly (at least quarterly in the case of joint worksite health and safety committees), and calling special meetings to deal with urgent concerns; and
       
    • referring concerns, when not addressed to their satisfaction, to OHS officers.
       
  • Workers occupying these roles will be entitled to regular pay when receiving training, conducting meetings, preparing for meetings or otherwise carrying out their duties.
     
  • Expanding incident reporting obligations. Those incidents that must be reported as soon as possible to a Director of Inspection will now include, among other things, any injury that that results in a hospital admission. For these incidents, as well as near misses (any incident that has the potential to cause serious injury), further investigation and reporting obligations will apply, culminating in the preparation of an investigation report (prepared by the prime contractor or employer) that must be provided to a Director of Inspection, as well as the joint worksite health and safety committee, health and safety representative or affected workers (as the case may be).
     
  • Expanding the powers of OHS officers to issue stop work orders (for example, by authorizing officers to stop work at multiple worksites through a single order), and requiring employers to continue paying all affected workers their same wages and benefits during any period of time a stop work order is in effect.
     
  • Overhauling the OHS appeal process. The OHS director will review certain OHS officer orders and decisions, such as matters relating to refusals to do dangerous work. The Alberta Labour Relations Board will become responsible for hearing appeals of other matters, such as discriminatory action complaints and administrative penalties.

Given the breadth and significant nature of these changes, Alberta businesses will need to carefully review the implications for their organization, and then retool or revamp their health and safety management programs accordingly.

WCB Changes

Bill 30 also makes a number of dramatic changes to Alberta's WCB legislation, including:

  • Requiring the WCB to establish a Code of Rights and Conduct to govern its interactions with workers and employers.
     
  • Creating a Fair Practices Office and Code of Rights and Conduct, which expands the current Office of the Appeals Advisor, and provides a new avenue of complaints re issues of administrative fairness.
     
  • Creating a Medical Panels Office, which expands the role and resources of the Medical Panel Commissioner. Within this framework, workers will now have greater control over which physicians conduct medical examinations and assessments relevant to their claim.
     
  • Significantly expanding and statutorily entrenching the WCB's benefit of the doubt policy, which currently requires the WCB to resolve an issue in the worker's favour if the evidence "equally" supports both sides of the issue. However, this policy only applies if the WCB cannot decide the matter after weighing the evidence using the ordinary civil standard of proof, a balance of probabilities. Under the new WCB legislation, this concept of benefit of the doubt will take on a new and fundamentally different meaning. All issues relating to compensation will be resolved in favour of the worker if the evidence on each side of the issue is "approximately equal". This will allow workers to receive compensation without proving entitlement on a preponderance of evidence. Thus, if "approximately equal" is interpreted liberally by WCB adjudicators, this change to the standard of proof could dramatically change the manner in which WCB compensation issues are decided.
     
  • Imposing an added layer of human rights obligations on employers in respect to injured workers (on top of the general protections already in place under the Alberta Human Rights Act) and making the WCB the adjudicator such matters. For example:

    • Employers will be required to provide any worker who has been employed continuously for 12 months or more at the time of injury with:

      • the first opportunity to perform any suitable modified work, and
         
      • reinstate them to their position or a comparable position with no loss in earnings or benefits when they are fit to return to their date of accident duties.
         
    • Employers will be presumed to have not fulfilled their obligations if they terminate a worker while the worker is receiving compensation under the Alberta Workers' Compensation Act (the "Act") or within 6 months after reinstatement. To rebut this presumption, employers will have to prove that they terminated or laid off the employee for a business reason made in good faith and not influenced by the worker being unable to work because of their injury.
       
    • Workers will be able to complain to the WCB, who will have the power to order employers to pay a up to one year's worth of the worker's earnings.
       
    • Employers will also be required to continue to make health benefits premium payments for injured workers for up to one year after the date of their injury.
       
  • Increasing compensation entitlements in a number of respects, such as:

    • removing the cap on insurable earnings for the purposes of calculating benefits payable under the Act;
       
    • expanding coverage for psychological injuries;
       
    • expanding death benefits;
       
    • increasing payments to workers who sustain long-term injuries when under the age of 25, or when enrolled in a vocational or educational program; and
       
    • expanding retirement benefits paid out to injured workers.
       
  • Increasing the time limit for appeals to the Appeals Commission from 1 to 2 years.

All of these changes will undoubtedly add to the cost of administering Alberta workers' compensation insurance scheme, which will ultimately have to be borne by employers through increased premiums.

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.

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Authors
David G. Myrol
Daniel R. Bokenfohr
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

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