What is old is not necessarily new again. But changes are very likely coming (again!) and are expected to be in effect on September 1, 2021. Bill 47: Ensuring Safety and Cutting Red Tape Act passed first reading on November 5, 2020. With the number of legislative sittings between now and the December holiday break, there is time for the Bill to pass before the end of the year. This is something the Alberta Government certainly seems to expect, as the WCB changes in that same legislation are to take effect January 1, 2021.
Since 1976, Alberta’s Occupational Health and Safety Act (the “OHSA”) has been amended eleven times, with the most substantial changes implemented in June 2018 under Alberta’s former NDP Government. The current UCP Government has acted on the public feedback it solicited this past summer about ways to protect workers, while reducing the administrative burden for businesses and employers. This is fundamentally important for the viability of employer enterprises (and for their workers to have jobs). The UCP changes are just as sweeping as the NDP’s were, if not more so.
The key topics and potential changes under review included:
- 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 work site 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 work site parties are not meeting their responsibilities.
The review was a welcome process for Alberta employers who have experienced practical and administrative challenges working within the parameters of the current OHSA for about the last two and a half years. The areas that have been changed align with the key areas that were reviewed, rectifying some of the main issues many employers have faced. These are some of those key changes:
- Joint Health and Safety Committees (“JHSC”) & Representatives: The most prescriptive requirements are proposed to be removed, including with respect to training, size and who must be included (though employer representatives cannot outnumber workers). There will also be flexibility added for multi-employer work sites. Also in terms of the information that has to be provided. Now, only information related to ‘work site hazards, controls, work practices and procedures’ has to be provided to committees and representatives (in addition to all workers) instead of all health and safety information.
JHSCs will also not be required to carry out work site inspections, but only to review the employer’s documentation related to inspections. Also key is that JHSCs clearly will not be required to be included in work site investigations. There are also no longer minimum hours of paid training that employers need to provide workers with, though meetings need to take place during the paid workday. The proposed wording also states that the employer will establish the committee after consulting with workers, which implies that it is the employer that appoints the members of the committee. Unions may well take issue with this change.
- Refusing Unsafe Work:Returns to being a worker obligation (as opposed to being characterized as a worker right), and based on undue hazards, which are hazards that pose a serious and immediate threat instead of the broader ‘dangerous conditions’. Instead of no discriminatory action being allowed against a worker, no disciplinary action can be taken for legitimate refusals. All that OHS should look at is whether disciplinary action has been taken. This provision is closer to what the OHSA prescribed before the NDP changes were enacted, where the undue hazard is something that is not normal for the occupation and is an immediate threat. Another key proposed change is that there will no longer be a requirement for the JHSC to be involved in the process. They need to be informed and provided a copy of the report prepared by the employer, but not otherwise involved. This is a more reasonable and constructive approach, especially as the expertise and motivations of committee members may differ.
- Near misses and PSIs (Potentially Serious Incidents):There will be a requirement to investigate, but not report, any incident that ‘had a likelihood of causing serious injury or illness’ and where there is ‘reasonable cause to believe that corrective action may need to be taken to prevent recurrence’. Given the nature of Covid-19, and the reality of widespread community transmission, this is how we are currently recommending that most Covid-19 positive worker cases be handled.
- Health and Safety Program Elements: Rightfully, the legislation will no longer be as prescriptive in this area. All explicit requirements are removed, other than a program being required for a workplace with 20 or more (regularly) employed workers. However, the Minister can now set out requirements for what a program needs to have in the OHS Code. This gives the government more flexibility and likely will be used. So, it will be very important to cross-reference the OHS Code (as always) to understand the full scope of responsibilities.
- Workplace Responsibilities and Parties
- Employers – Will no longer be responsible for the same explicit (and confusing) scope, as ‘physical, psychological and social well-being’ will be removed from the definition of health and safety. Employers will only be responsible for, more sensibly, having to make reasonable efforts to ensure the ‘health, safety and welfare’ of persons in the vicinity of the work site who may be affected by hazards originating from the work site. Employers will no longer have to pay workers’ wages while a stop work or stop use order is in effect.
- Independent Contractors – They are now employers with employer obligations instead of workers. This changes the liability framework significantly and puts a higher burden on independent contractors to be responsible for their own health and safety.
- Contracting Employers – This is the proposed new term for contractors, who must now ensure that the owner and any employer, prime contractor, supplier, and others are informed of any existing or potential works site hazards that may affect others at the work site.
- Workers – Will be explicitly required to participate in training provided by employers and to not do work they are not competent to do unless directly supervised by someone who is. This properly reinstates responsibility on workers to only do work they can safely do. Workers can also be directly subject to an Officer’s order and have to do, or not do, what is set out in the order. This is important for employers also, as it is an additional motivating element for worker compliance.
- Supervisors – Their responsibility to ensure their own competency is removed and returns, in effect, to an employer responsibility.
- Prime Contractors – There will be legislated definitions for a ‘construction work site’ and an ‘oil and gas work site’.
- Acceptances, Allowances, Interprovincial recognitions and Licences: A Director will be able to approve an alternate method, PPE, equipment etc., that is as great as or greater than what the OHS Code requires. This will result in more flexibility for employers to do what works best for their work sites. Also for recognition of other jurisdictions approvals or licences – with or without conditions. For example, this will be very helpful for parties that have inter‑jurisdictional crane use. Ultimately, this progressive change will allow employers who work in multiple jurisdictions to have standardized processes, which is less confusing for workers and supervisors and thereby reduces the potential for error(s) to cause an incident. This is a change that employers, in particular, have advocated for over the years.
- Investigation Powers of an Officer:These will now explicitly include investigating illnesses connected to the workplace. This change aligns with the powers that OHS is attempting to exercise in the context of COVID-19. Aligning with the prevalence, expediency and ease of e-mail communication, Officers will be able to serve orders and other key documents this way instead of just by fax or e-mail. The challenge with this is that, due to vacations and other leaves, the organization’s key contact person’s e-mail will need to be monitored or there is a risk of missing an important order, direction or other communication and any related deadlines. Another important change is that Officers can now issue compliance orders where they are of the opinion that there is non-compliance without first doing an inspection or in the context of an investigation. This is a significant change and, practically speaking, could result in a person getting an order with little to no notice where before they would have had a head’s up as an inspection would have happened or an investigation would have been underway. In theory, anonymous complaints could lead to an order or orders.
That said, another really good change that is currently in the proposed legislation is that an Officer can refuse to investigate a complaint where they are of the opinion that the complaint is ‘without merit, or is frivolous, trivial, vexatious, filed with improper motives or otherwise an abuse of process’. We sometimes see the latter two happen in the context of someone trying to leverage a higher severance package in the employment context or in labour relations.
- Information Sharing with WCB:Agreements will be able to be put in place for sharing information on illnesses. This is also very likely a COVID-19 driven change.
- Employers Could Face Costs:If an employer fails to comply with an order issued by an OHS Officer, and OHS has to get a court order, the court will now have authority to order costs against that employer. So beware. Failing to comply will have greater costs, potentially, if OHS was right in issuing the order.
- Appeals: Instead of an appeal of an Officer’s order (to take action, including stop work and stop use orders) going to the Director of Inspection, they will now go to the Labour Relations Board. Bill 47 also proposes to abolish the Occupational Health and Safety Advisory Council. The Council currently makes health and safety recommendations to the Minister. Generally speaking, the appeal process will also more closely align with the approach that the Labour Relations Board is used to taking, including with respect to sending a matter back to the Officer or Director (as applicable) for reconsideration.
- Penalties:Notably, penalty amounts (administrative penalties and fines) have not changed. This is not surprising as Alberta’s are still some of the highest in the country.
- Radiation Safety:This will now be addressed in the OHSA instead of the Radiation Protection Act. This is a good consolidation of safety-related obligations.
Stay tuned for further analysis on the final legislation, as it could still be amended before it is passed.
We will continue to update our clients with information as it becomes available. If you have any questions about this topic, please do not hesitate to contact a Mathews Dinsdale lawyer.