November 29, 2017

Alberta Introduces New WCB and Occupational Health & Safety Laws
(Bill 30)

On November 27, 2017, Bill 30: An Act to Protect the Health and Well-being of Working Albertans, received first reading in the Legislative Assembly of Alberta.  It is expected that it will be passed by the end of this week or early next week.  It is not anticipated that the opposition will “filibuster”.  Bill 30 contains very significant changes to Alberta’s WCB and Occupational Health and Safety (OHS) legislation.  While the Workers’ Compensation Act is simply being amended, the Occupational Health and Safety Act is being repealed and completely replaced.  These changes will have far reaching cost and operational implications for many employers in Alberta.
Bill 30 comes on the heels of the Alberta Government’s recent overhaul of the Province’s labour and employment standards legislation.  The Government said that a review of Alberta’s WCB OHS systems was necessary to ensure Alberta keeps up with the needs of modern workplaces, changing technology and other jurisdictions.  The public consultation portion of the OHS review closed on October 16^th.  Information provided through the consultation was used to prepare recommendations to the Government, which in turn have made their way into Bill 30.  The WCB changes come out of recommendations provided by an independent panel that completed a comprehensive review of the system in June 2017.  It had been more than 15 years since the last WCB review.  It had been more than 30 years since OHS legislation underwent a comprehensive review.
The key focuses of both legislation is on workers.  In terms of OHS it is on the three fundamental rights of workers:

1. The right to know
2. The right to participate
3. The right to refuse dangerous work

The WCB changes were stated to be based on the desire to ‘bring about a worker-centered system that features greater independence, transparency, stakeholder engagement and accountability’.   This approach has resulted in a worker Code of Rights and Conduct being introduced.  The effect is that there will be significant additional costs for employers and some uncertainty as the existing system is calibrated in accordance with the new legislation should it be adopted.
What follows are some of the key changes proposed in Bill 30 and when they will take effect if the legislation is passed:
WCB – Effective January 1, 2018 – Likely no Premium Increases – But that is up to WCB

• Cost – changes are estimated to cost $94 million more per year, but premiums will not likely change initially (given high WCB reserves)
  • Benefits Based on Income – no maximum cap on income anymore (i.e. no longer only 90% of up to $98,700, the 2017 maximum), this will have very significant claims experience costs potentially as each claim could cost far more (i.e. in industries like oil and gas where salaries are high)
  • Guaranteed Fatality Lump Sum – $90,772.20 for fatality benefits whether or not there are surviving dependants
  • All Spouses Treated the Same for Benefit – whether or not they work outside the home (it used to be that two income households with a working spouse were treated differently than a stay at home spouse)
  • Young Worker (15 – 25) Income Replacement – no longer based solely on earnings at time of incident but on averaged earnings
  • Pension Benefit Increased – for surviving spouses
  • Deemed Earnings – would now only be used as a last result after every reasonable effort has been made to get a worker back to work
  • Cost-of-Living Adjustment – will no longer be discounted by .5% off of the Alberta Consumer Price Index
• Dispute Resolution – no longer the Office of the Appeals Advisor
  • Fair Practices Office – to be implemented by end of 2018, which acts as an ombudsperson and reports directly to the Minister of Labour and not WCB
  • Deadline for Appeals – extended to two years from one year, and even longer if there is a justifiable reason (also financial relief available while waiting for the appeal/review to be decided)
  • WCB Not Automatically a Party to a Review/Appeal – have to give notice they are participating in a review, implying that there will be instances in which they will not participate and when they do it is to provide information on the applicable law and policy
• Medical Evidence Requirements are Changing
  • PTSD Is Presumed for First Responders – where they have been subjected to, or witnessed a traumatic event (which is not a change in practice but a codification of it)
  • Presumption in Favour of Workers – where there is conflicting medical evidence that is approximately equal, it will be resolved in favour of the worker
• Mandatory Worker Reinstatement After Injury – injured workers must be returned to work when they are medically able to do so
  • The concept of the ‘Duty to Accommodate’ is imported from human rights legislation
  • The key challenge with respect to this is that a worker who is injured due to their own serious safety breach may well argue that they have to be reinstated even if the employer had cause
  • Where an employer fails to reinstate and accommodate to the point of undue hardship, they can be ordered to pay an administrative penalty and that penalty can also be ordered to be paid to the worker if they have lost wages or out of pocket expenses
• Prescribed Reviews – first at 3 years and then at 5 year intervals after that

OHS Act – Effective June 1, 2018 – New Legislation with a Focus on Internal Responsibility and all Worksite Parties having a Role to Play in Safety

• Changes to the roles and responsibilities of work site parties:
  • Roles and responsibilities of employers, workers, suppliers and contractors will be updated
  • New roles and responsibilities will be set out for supervisors, service providers (including safety consultants), owners, self‑employed persons, and temporary staffing agencies (Alberta is the first jurisdiction in Canada to expressly regulate temporary staffing agencies and impose specific duties)
  • Roles and responsibilities for prime contractors will be updated (the concept of control similar to the analysis in the federal jurisdiction is introduced), and prime contractors will now only be required on construction and oil & gas work sites, or a work site designated by a Director (which will make worksite management less complicated for manufacturing, shipping, logistics, property management and other industries where they did not have construction projects underway)
• New roles and responsibilities on preventing and responding to workplace harassment and violence – The new legislation will include express definitions for harassment and violence, essentially to address what was set out in Bill 208: Occupational Health and Safety (Protection from Workplace Harassment) Amendment Act, 2016, that died on the order paper in 2016. Employers and supervisors will be expressly obligated to ensure that no workers are subjected to or participate (which could include simply witnessing it and not doing anything about it) in harassment or violence at the work site.  Workers will be obligated to refrain from causing or participating in harassment or violence
• Domestic workers (e.g. nannies, cleaners, and caregivers) will be covered by the Act (but excluded from the Occupational Health and Safety Code 2009, except where expressly said to apply). This is a significant change and will make the people that they work for their “employers” under OHS legislation for the first time
• Clarification on the health and safety information that must be readily available at a work site, including:
  • Copies of the Act, the Regulations and the OHS code
  • Information on existing or potential work site hazards, manufacturer specifications for equipment or harmful substances supplied, copies of any report, plan or developed procedures required to be made under the Act, the Regulations or the OHS code
  • Posted copies of any order or health and safety notice made under the Act
• New mandatory establishment of Joint Work Site Health and Safety Committees and Health and Safety Representatives (similar to Manitoba’s requirements):
  • A joint work site health and safety committee is required at work sites with 20 or more workers and where work is expected to last 90 days or more. The committee must have at least 4 people and must meet at least quarterly
  • A health and safety representative must be designated at work sites with 5 to 19 workers and where work is expected to last 90 days or more. The employer or prime contractor (if applicable) must meet with the representative regularly to discuss health and safety matters, or if a special meeting is called by the representative to deal with urgent concerns at the work site
  • Members of the joint work site health and safety committee or the health and safety representative must be paid for time spent on their duties in this role, and must receive training on their duties and functions
  • The duties of the joint work site health and safety committee, or health and safety representative if applicable, will include:
    • Receiving, considering and disposing of concerns and complaints about the health and safety of workers
    • Participating in the identification of hazards to workers or others arising out of the activities at the work site
    • Developing and promoting measures to protect the health and safety of people at the work site and checking the effectiveness of such measures
    • Developing and promoting programs for education and information concerning health and safety
    • Making recommendations to the employer, prime contractor or owner on the health and safety of workers
    • Regularly inspecting the work site (which can include an office tower in a large centre like Calgary or Edmonton)
    • Cooperating with OHS officers in enforcing the Act, the Regulations or the Code, participating in investigations of serious injuries and incidents, and maintaining records on all matters relating to the duties of the committee
  • Expansion on the worker right to refuse dangerous work – Employers will be required to inspect the dangerous condition and take any action necessary to remedy the dangerous condition. Until the inspection is complete and condition is remedied, the worker who reported it may continue to refuse work and is entitled to be paid (or may be reassigned with equal pay) despite the refusal
  • Expansion of the discriminatory action provisions – The definition of “discrimination action” will be clarified and more explicit. The new Act will include a presumption in favour of the worker that the discriminatory action was taken (the onus will be on the employer to prove that the action was not discriminatory so solid record keeping and a proper rationalization that can be demonstrated will be key)
  • Expansion of the requirement for employers to establish health and safety programs
    • Employers with 20 or more workers must establish a health and safety program that: includes a health and safety policy; identifies existing and potential hazards to workers (including harassment and violence) and measures to eliminate, reduce or control the hazards; an emergency response plan; a statement of responsibilities of employers, supervisors and workers; a schedule and procedures for regular inspection of the work site; health and safety procedures; worker and supervisor health and safety orientation and training; procedures for investigating incidents, injuries and refusals to work, including worker participation in investigations; and procedures for reviewing and revising the health and safety program
    • Health and safety programs must be reviewed and updated at least every 3 years or in the event of a change in circumstances at the work site that creates or could create a hazard to workers (i.e. a change in the nature or scope of work, the equipment used, workers carrying it out or worksite conditions that create or could create a new hazard)
  • Establishment of the Occupational Health and Safety Advisory Council – The OHS Council will be repurposed into an advisory body to provide specialized OHS advice to Government on occupational health and safety generally, the protection of workers in specific work site situations, and the appointment of consultants and advisors. The Occupational Health and Safety Council referred to in section 6 of the current OHS legislation will be dissolved
  • Changes to the reporting requirements for serious injuries and incidents (i.e. whenever there is an admission to hospital – not the two or more days it used to be)
  • Update to the duties of the Minister – including provisions that set out the Minister’s duty to keep OHS legislation up to date, seek consultation, and ensure OHS information and statistics are maintained
  • New provisions on the ability of the Director of Medical Services to access information – For the purpose of determining the extent of an injury suffered by a worker that occurred in respect of the worker’s occupation, or to determine whether a worker is suffering from an occupational disease related to the worker’s occupation
  • Changes to the compliance and enforcement of the Act, including:
    • Officers will have expanded powers to inspect a work site, or investigate an injury or incident, including interviewing persons who are not present at the work site at the time of the incident (something that was frankly done under the past powers in any event)
    • Modernize stop work order and stop use order (equipment) provisions, including the express entitlement for workers to continue to be paid (or be reassigned with equal pay) during a stop work order/stop use order (this change could have a significant impact on small to medium employers)
    • Expanding the ability of the Court to impose creative sentences and provide oversight of them (recognizing that creative sentences are being used more and more for the benefit of Alberta industry, the public and workers)
  • Changes to the process for review and appeals of orders or decisions
    • The first line of appeal will be a review by the Director of Inspection instead of the OHS Council
    • All appeals of orders, administrative penalties, cancellation or suspension of licences, discriminatory action complaint decisions, or review decisions, will be heard by the Alberta Labour Relations Board
  • New provisions on information collection and exchange – including an expansion of the ability to enter into information sharing agreements for research and educational purposes, an increase in the ability to collect and exchange information related to the health and safety of workers, and to publish documents and information arising from the administration of the Act (e.g. orders, administrative penalties, )

Stay tuned for our further analysis on these important issues, as it is critical for employers to consider how Bill 30, if passed, will impact their operations.  Employers must also begin to consider how they will modify their existing operations and safety management systems to ensure that they are in compliance with their new obligations under the proposed laws.  We plan to have a client seminar on this new legislation early in the new year.  We hope that you will join us.
If you have questions regarding the impact of these changes, or steps you can take to reduce their impact, please do not hesitate to contact a Mathews Dinsdale lawyer in our Alberta office.
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