Canada: Alberta's New Occupational Health And Safety Act Expands The Scope Of Duties For A Number Of Parties

On June 1, 2018, amendments to Alberta's Occupational Health and Safety Act (the "New Act") came into force, significantly expanding the nature of the health and safety obligations owed by employers and businesses in Alberta.

This article focuses on one of the areas in which changes have been made: the expansion of the types of entities that have duties under the Act and the scope of those duties. Please see additional articles, which address the expansion of reporting obligations and the government's authority in response, and the changes to day-to-day operations of an employer to address safety at a work site.

Obligations of Work Site Parties

All work site parties must cooperate with anyone exercising a duty under the New Act, and must provide each other with health and safety information. The New Act also contains an expanded definition of "health and safety", covering not only the physical well-being of workers, but their "psychological" and "social" well-being, neither of which are defined in the New Act.

Employers

Under the prior Act, every employer was, among other things, obligated to ensure the health and safety of workers engaged in their work and of workers present at the work site. The New Act expands these obligations. For example, the employer is now also obligated to ensure the "welfare" of workers, which is defined as "the conditions or facilities, in or near a work site, provided for the feeding, rest, hygiene or sanitary requirements of a worker". The employer's obligations also extend to other persons at or in the vicinity of the work site. These changes are important, as employers are now responsible for the safety of individuals that are not workers and for the safety of individuals that may not be physically present on the work site. This could pose difficulties as employers have limited, if any, control over these individuals.

The Act also imposes the following obligations on employers: ensuring workers are not subject to or participate in harassment or violence at the work site; ensuring workers are supervised by a competent person familiar with the New Act, regulations and code; consulting and cooperating with the joint work site health and safety committee or representative; advising the prime contractor of the names of all of the supervisors; and ensuring workers are adequately trained in all matters necessary to protect their health and safety.

Supervisors

A "supervisor" is defined as a person who has charge of a work site or authority over a worker. The problem with this definition is that it could result in multiple individuals being supervisors at a single work site. It is expected that Alberta apply an objective test to determine whether someone has a supervisory role, regardless of their title, as is done in other jurisdictions.

The New Act lists certain personal obligations of a supervisor with respect to the workers under their supervision, including: ensuring the supervisor is competent; taking all precautions necessary to protect the health and safety of workers; ensuring the workers comply with the New Act, regulations and code; ensuring every worker uses or wears necessary personal protective equipment; ensuring workers are not subjected to or participate in harassment or violence at the work site; advising every worker of all known or reasonably foreseeable hazards; and reporting unsafe or harmful work site acts or conditions to the employer.

This is a significant change and its impact should not be underestimated. Employers will need to identify all personnel who are supervisors and ensure they are both competent to fulfill the role and are able to meet their legal obligations.

Workers

The New Act expands the prior requirement that workers take reasonable care to protect the health and safety of themselves and other workers to include other persons at or in the vicinity of the work site. The New Act also introduces the following worker obligations: where required, use all devices and wear all personal protective equipment; and refrain from causing or participating in harassment or violence.

Previously, workers had a positive obligation to refuse work that posed an imminent danger to their health and safety or that of others. Now this duty is a discretionary right to refuse work that a worker reasonably believes constitutes a danger to a worker's health and safety, or to that of others. This change is puzzling, as it seems to be in conflict with the obligation of a worker to take reasonable care to protect their own health and safety, and that of others at or in the vicinity of the work site.

Suppliers

Previously, suppliers had to ensure any tool, appliance or equipment was supplied in safe operating condition and is was compliance with the Act, regulations and code. This obligation is expanded considerably to include: if the supplier has responsibility under an agreement to maintain equipment supplied, the equipment must be maintained in a safe condition, in accordance with the manufacturer's specifications and in compliance with the New Act, regulations and code; and to provide notice if the equipment or harmful substance does not comply with a standard prescribed under the regulations or code. Suppliers should pay particular attention to the latter obligation, as it seems to impose a continuing duty to notify all past and future customers of any non-compliance that the supplier is aware of, or reasonably ought to be aware of.

Owners

Previously, owners of a work site had no specific obligations except in the case where a prime contractor was required for a work site, but not identified, in which case the prime contractor obligations defaulted to the owner. The New Act imposes a number of specific obligations that will apply to owners at every work site. The obligations include a requirement that every owner ensure the land, infrastructure and any building or premises on the land under the owner's control is provided and maintained in a manner that does not endanger the health and safety of workers or any other person.

The definition of "owner" has also changed, with "owner" now being defined as the person who is registered under the Land Titles Act as the owner of the land on which work is being carried out or may be carried out, or the person who enters into an agreement with the owner to be responsible for meeting the owner's obligations under the New Act, the regulations or the code, but does not include a person who occupies land or premises used as a private residence unless a business, trade or profession is carried on in that premises. Lessors should consider incorporating specific terms into their leases to assign their obligations as owners under the New Act, or they could be exposed to significant additional legal responsibilities.

Contractors

Previously, every contractor that directed the activities of an employer had to ensure, as far as was reasonably practicable, that the employer complied with the Act, the regulations and the code. Now every contractor must ensure, as far as it is reasonably practicable, that every work site where an employer, employer's worker or self-employed person works pursuant to a contract with the contractor, and every work process or procedure performed at a work site by an employer, employer's workers or self-employed person pursuant to a contract with the contractor, that is under the control of the contractor, does not create a risk to the health and safety of any person. Further, if the contractor is on a work site that has a prime contractor, the contractor must advise the prime contractor of the name of every employer or self-employed person for whom the contractor directs work activities.

Prime Contractors

The New Act restricts the obligations of prime contractors to "construction and oil and gas work sites" or a work site designated by a Director. Unfortunately, the Act does not provide definitions of what qualifies as a "construction work site" or "oil and gas work site". This is likely to create uncertainty as to when a prime contractor is required.

The New Act also expands the obligations of a prime contractor, which now include the following: establishing a system or process to ensure compliance with the New Act, regulations and code; ensuring no person is exposed to hazards; consulting and cooperating with the joint work site health and safety committee or health and safety representative; and coordinating health and safety programs.

Previously, the prime contractor was the contractor, employer or other person who entered into an agreement with the owner of the work site to be the prime contractor, or if no agreement had been made or was in force, the owner of the work site. Now, the person in control of the work site must designate a prime contractor is in writing and post the name of the prime contractor in a conspicuous place at the work site. If this is not done, the person in control of the work site is deemed to be the prime contractor. These changes will likely require changes to most prime contractor agreements that pre-exist the New Act.

Overall, the New Act implements significant changes to the obligations of various parties that should not be taken lightly. All employers and others should make sure to review the New Act carefully to ensure they are aware of their obligations.

Read the original article on GowlingWLG.com

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