Occupational Health & Safety Review

Since 1976, Alberta’s Occupational Health and Safety Act, SA 2017 c O-2.1(the “OHSA”) has been amended eleven times, with the most substantial changes implemented in June 2018 under Alberta’s former NDP government.

Alberta’s current UCP government is considering additional changes to the OHSA and seeking public feedback regarding ways to protect workers, while reducing the administrative burden for business and employers.

The key topics and potential changes under review include:

• Strengthening the Internal Responsibility System to provide greater control of OHS issues to the parties responsible for managing them.
• Enabling innovation by providing flexibility to worksite parties and government to determine how best to achieve health and safety outcomes through a performance‑based approach, while also providing clarity on parties’ responsibilities.
• Clarifying Accountabilities by shifting ownership of OHS issues from government to those who are responsible for them, and improving enforcement tools to address situations when worksite parties are not meeting their responsibilities.

The review is a welcome process for Alberta employers who have experienced practical and administrative challenges working within the parameters of the current OHSA over the past two years. The key areas for change identified align with potentially rectifying some of the issues many employers have faced, which have included the following:

• New reporting provisions for injuries and incidents, including “potentially serious incidents”, which were unclear, created administrative and costly burdens on employers, and resulted in inconsistent application of the OHSA’s requirements;
• Substantial changes that placed overly onerous obligations on individual supervisors. This change increased responsibility, liability, and accountability on workplace supervisors in their supervision of workers that were not warranted in every industry, if at all, resulting in reduced flexibility in some workplaces, while creating confusion and redundancy in others;
• Requirement that employers continue to pay workers who refuse unsafe work until the situation has been reviewed or remedied by the employer (and whether or not the refusal is warranted);
• Requirement that employers continue to pay workers during a stop work or a stop use order, and the expansion of stop work orders to apply over multiple work sites;
• Introduction of a presumption in favour of a worker alleging that a discrimination or retaliation complaint has occurred (e.g. discipline, dismissal, or threat of discipline/dismissal). Under this change, the worker does not have to prove that their complaint. Instead, the employer is presumed to have engaged in discriminatory or retaliatory conduct and the evidentiary burden or “onus” is placed on the employer to disprove the complaint;
• The creation of various mandatory workplace safety initiatives, each containing mandatory minimum requirements for implementation. The myriad of different requirements and programs added additional complexity and cost to the workplace;
• Unclear provisions regarding the employer’s obligation to pay for medical examinations;
• Requirements for joint work site health and safety committees (HSCs) and health and safety representatives (HSRs) which are mandatory, prescriptive and may be unnecessary in some workplaces or result in duplication in others, particularly for multi‑employer work sites; and
• Compliance and enforcement provisions which do not allow for flexibility in addressing non-compliance.

Employers and provincial businesses are encouraged to submit their suggestions and comments with respect to the above issues, or otherwise, through the online survey, which is open until August 12, 2020. The results will be reviewed by the Ministry of Labour and Immigration, and considered in developing changes to improve the administration of the OHSA for workplaces and stakeholders governed by it. Further information regarding the surveycan be accessed by emailing lbr.ohsreview@gov.ab.ca.

Workers’ Compensation Review

The Alberta government is also reviewing the Workers’ Compensation Act, RSA 2000, c W-15 (the “WCA”). Albertans’ feedback is sought with respect to improving the efficiency, affordability, and sustainability of the workers’ compensation system, while ensuring employers’ and workers’ needs are met.

The general topics under review are:

• benefits for workers;
• supports for return to work after an injury or illness;
• enhancement of the workers’ compensation process;
• sustainability of the workers’ compensation system; and
• governance requirements.

The above review categories parallel issues encountered by employers due to the NDP’s previous changes to the WCA and workers’ compensation process overall, including but not limited to the:

• Overfunding of the WCB resulting in surplus distribution to employers, sometimes with delay based on the Workers’ Compensation Board’s (“WCB”) limit on annual refunds to employers;
• Limited transparency in the WCB’s recruitment process for Directors through lack of stakeholder consultation and partisan appointments;
• Optional coverage for corporate Directors resulting in a liability loophole even where corporate workers’ compensation benefits coverage is in place;
• Presumption of psychological injuries suffered where a worker experienced a traumatic event;
• Removal of the compensable wage cap, creating a disincentive for workers to return to work and cost implications to the employer;
• Obligation of employers to pay health benefits to workers terminated for cause on a return to work program following a workplace incident;
• Operational and cost impacts to employers resulting from changes to worker reinstatement after injury rules, particularly the:
  • Presumption that the employer contravened legislation where a worker is terminated within 6 months of reinstatement or while receiving workers’ compensation;
  • Obligation to re-employ a worker in the position they held prior to the incident or provide similar alternate employment, even where the worker committed a serious safety breach;
  • Obligation to accommodate the work or workplace to the worker’s needs to the point of undue hardship; and
  • Overlap of the changes with human rights issues under the jurisdiction of and best addressed by the Alberta Human Rights Commission;
• Shift of the obligation to continue health benefits for injured and/or absent employees for 1 year onto the employer as opposed to the WCB;
• Introduction of a mandatory government review of the WCA every 5 years; and
• Classification of repetitive strain injuries under the WCA as an employer responsibility rather than as a cost borne by industry groups collectively.

Responses may be submitted on one or more of the above topics through the Written Submission Guide, which must be emailed to WCBReview@gov.ab.ca by August 10, 2020. As with the OHSA review, the results will be reviewed by the Ministry of Labour and Immigration, and considered in revisions to the WCA and the workers’ compensation system.

If you have any questions about this topic or other Occupational Health and Safety related questions, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s other website resources.