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.
- joint worksite health and safety committee, health and
safety representative (where applicable) or workers; and
- 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;
- 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.
- establishing a system or process to ensure compliance with the
OHS Act, Regulations and Code at the worksite;
- 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;
- follow all procedures and measures, required by the OHS Act,
Regulations or Code;
- 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.
- ensuring their own competence to supervise and taking all
precautions necessary to protect the health and safety of every
worker under their supervision;
- 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.
- 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
- 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.
- Supervisors (defined as person having charge of a work site or
authority over a worker) will face a number of key obligations,
including:
- 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.
- conducting regular inspections of the worksite;
- 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.
- the first opportunity to perform any suitable modified work,
and
- 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.
- Employers will be required to provide any worker who has been
employed continuously for 12 months or more at the time of injury
with:
- 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.
- removing the cap on insurable earnings for the purposes of
calculating benefits payable under the Act;
- 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.