Alberta's Bill 30 Overhauls Workers Rights under Occupational Health and Safety and Workers Compensation Legislation

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1 Alberta's Bill 30 Overhauls Wrkers Rights under Occupatinal Health and Safety and Wrkers Cmpensatin Legislatin By Craig Alcck, Paul Beke and Deirdre Fleming, Student-at-Law Intrductin On December 15, 2017, Bill 30: An Act t Prtect the Health and Well-being f Wrking Albertans [Bill 30] received ryal assent, ushering in extensive changes fr bth Alberta s Occupatinal Health and Safety Act [OHSA] and the Wrkers Cmpensatin Act [WCA]. Bill 30 will cme int frce thrughut 2018, with mst f the majr changes t the OHSA and the WCA taking effect n June 1 and January 1, respectively. The Alberta Gvernment has indicated that the changes are designed t better prtect wrkers, ensure wrkers have the same rights and prtectins as wrkers in ther prvinces and empwer wrkers t participate in the health and safety f Alberta s wrkplaces. Bill 30 cmes n the heels f the recent update t the prvincial labur and emplyment standards legislatin which als had a primary fcus n expanding wrkers rights. Bill 30 impses a number f substantive and administrative bligatins n emplyers, including a duty t ensure that wrkers are nt subjected t wrkplace harassment, and an expanded duty t reprt wrkplace incidents. The changes will als increase the administrative and bureaucratic requirements f bth regulatry regimes. Fr example, the OHSA will require that emplyers establish, maintain and regularly cnsult health and safety cmmittees in the wrkplace. The WCA will establish an independent bdy t help individuals navigate prcesses f the Wrkers Cmpensatin Bard (WCB). The prvince estimates the changes will cst the WCB an additinal $94 millin per year. Overview f the Occupatinal Health and Safety Act The OHSA sets minimum standards fr wrkplace health and safety, and utlines the rles and respnsibilities f emplyers and emplyees. Once in frce, Bill 30 will substantially verhaul the OHSA's cntent and structure. The Alberta Gvernment develped Bill 30 fllwing a cmprehensive review f the OHS system cmpleted in the fall f 2017 the first review since the OHSA was enacted in

2 The OHSA enshrines 3 basic rights The amended OHSA will ensure that all wrkers have the fllwing basic rights: (1) The right t refuse unsafe wrk: Wrkers (i) may refuse unsafe wrk, (ii) will receive pay during an emplyer's related investigatin, and (iii) will be safe frm reprisals. Emplyers may nt reassign the task in issue until it is n lnger a danger. (2) The right t be infrmed: Emplyers must infrm wrkers abut ptential wrk site hazards and hw t eliminate r cntrl them. Emplyers must als make safety infrmatin readily available. (3) The right t participate: Emplyers must invlve wrkers in health and safety discussins. Majr substantive changes Expanded rles and respnsibilities f wrk site parties The amended OHSA expands the definitin f emplyer and wrker. A wrker nw includes self-emplyed persns and persns engaged fr n mnetary cmpensatin. An emplyer nw includes a persn emplyed by an emplyer t versee the health and safety f its wrkers. Under the amended legislatin, parties with stated bligatins have been expanded t include supervisrs, service prviders, wners, self-emplyed persns and temprary staffing agencies. Previusly, nly emplyers, wrkers, suppliers, cntractrs and prime cntractrs had stated bligatins. The amended OHSA expands an emplyer s duties. The emplyer must: ensure the health and safety f its wrkers, ther wrkers nsite, and members f the public in the vicinity f the wrksite; ensure its wrkers are aware f their duties and rights under the OHSA, and any health and safety issues arising frm wrk at the wrksite; ensure that wrkers are trained t prtect their health and safety befre starting r changing their wrk; ensure its wrkers are nt subjected t and d nt participate in wrkplace harassment r vilence; ensure that supervisrs are cmpetent t fllw OHS requirements; establish and cnsult with wrk site safety representatives r cmmittees; 2

3 reslve any wrkplace health and safety cncern in a timely manner; advise the prime cntractr f the names f supervisrs; and make all health and safety infrmatin readily available t the wrksite health and safety cmmittee, health and safety representative, wrkers and the prime cntractr. The amended OHSA als expands the bligatins fr prime cntractrs, including that f reprting unsafe r harmful wrksite acts r cnditins t the emplyer r supervisr. Prime cntractrs are nw required n cnstructin and il and gas wrk sites, r a wrk site designated by a Directr. New bligatins t prevent and respnd t harassment and vilence The OHSA will intrduce express definitins fr harassment and vilence in the wrkplace, including definitins fr sexual slicitatins r advances. Emplyers and supervisrs will have an express bligatin t ensure that n wrkers are subjected t r participate in harassment r vilence at a wrk site. Wrkers must refrain frm causing r participating in wrkplace harassment r vilence. New requirements t prvide wrkers with health and safety representatin Emplyers must establish a jint wrk site health and safety cmmittee when they emply 20 r mre wrkers and expect wrk t last 90 r mre days. The cmmittee must meet at least quarterly. The emplyer must prvide the cmmittee members with cmpensatin and training fr their cmmittee wrk. These cmmittees will be respnsible fr: inspecting the wrk site fr hazards; helping emplyers respnd t health and safety cncerns f wrkers; helping reslve wrkers' refusals f unsafe wrk; helping t develp health and safety plicies and safe wrk prcedures; helping with new emplyee health and safety rientatin; and develping and prmting educatin and training prgrams. When an emplyer has between 5 and 19 wrkers and expects the wrk t last mre than 90 days, the emplyer must have a health and safety representative wh: will perfrm the same duties as a health and safety cmmittee; and must meet with the emplyer regularly. 3

4 If a cmmittee r representative brings a health and safety matter t the attentin f the emplyer and makes remedial recmmendatins, the emplyer must: implement the recmmendatins and infrm the cmmittee r representative; r develp a timeline fr implementatin and any interim cntrl measures if the changes cannt be implemented within 30 days; and prvide reasns if it disagrees with the recmmendatins. An fficer may settle any disputes. New reprting requirements n emplyers fr serius injuries and incidents Emplyers must nw reprt any injuries where a wrker is hspitalized (nt just fr hspital stays extending mre than 2 days). The amended legislatin utlines the kinds f incidents that emplyers must reprt which nw includes incidents that culd have caused serius injury, even if n injury ccurred. Cmpliance and enfrcement The amended OHSA expands an fficer's investigative pwers at a wrk site, including the pwer t issue stp wrk rders and t interview wrkers nt present at the time f an incident. When an fficer determines that a stp wrk rder is necessary, affected wrkers must receive their pay while the rder is in effect. Changes t the prcess fr review and appeals f rders r decisins The amended OHSA verhauls the administrative prcess fr appeals. Appeals f certain rders issued under the OHSA will first be subject t review by the Directr f Inspectin, including wrker refusals t perfrm dangerus wrk. The Alberta Labur Relatins Bard will hear appeals f ther matters, such as review decisins, discriminatry actin cmplaints and administrative penalties. The amended OHSA expands the scpe f curts t impse and versee creative sentences. These include rders t impse safety training r fr emplyers t pay fr research prgrams r schlarships. Other fines and penalties remain unchanged. Overview f the Wrkers Cmpensatin Act The WCA prvides n fault benefits and supprts a safe return t wrk, with premiums that are intended t remain sustainable and affrdable fr emplyers. The Bill 30 amendments t the WCA arse frm an independent panel s recmmendatins fllwing a cmprehensive review f the system cmpleted in June 2017 the first review in ver 15 years. 4

5 Majr substantive changes Changes t make the Wrkers' Cmpensatin Bard mre accessible The amended WCA establishes the Fair Practices Office, an independent bdy t assist wrkers in navigating the WCB system. The WCB must nw prduce a Cde f Rights and Cnduct that sets ut the rights f wrkers and emplyers in their interactin with the WCB. The amended WCA increases the time t appeal a decisin t the Appeals Cmmissin frm 1 year t 2 years, allws fr prcedural flexibility and publicatin f decisins, and permits a single adjudicatr t deal with sme matters, rather than a full panel. A reviewing bdy may grant interim relief while a decisin is under review and appeal. Expanded wrker benefits There will n lnger cap maximum insurable earnings. Previusly, any lst wages ver $98,700 were uncmpensated. Cverage fr psychlgical injuries (including Pst Traumatic Stress Disrder) fr all ccupatins. Benefits will be imprved fr (i) surviving spuses and children fllwing a wrker s death, and (ii) yung wrkers. There will be expanded retirement benefits fr injured wrkers. Wrkers will gain the pwer t select a physician t cnduct a medical examinatin. Return t wrk and duty t accmmdate Emplyers will be bligated t ffer wrk t emplyees wh suffered injuries and illnesses in their wrkplaces, unless it wuld impse an undue hardship. When a wrker is medically able t perfrm the essential duties f the wrker s preaccident emplyment, the emplyer must ffer the previusly held psitin r an alternate psitin at cmparable earnings. Occupatinal Disease and Injury Advisry Cmmittee An Occupatinal Diseases and Injury Advisry Cmmittee will be created t advise n diseases, injuries and cnditins that are cmmn within an industry. The Cmmittee may direct the WCB t deem linkages between cmmn injuries/illnesses and emplyment sectrs. 5

6 Review Current Wrk Place Plicies The changes t the OHSA and WCA implemented by Bill 30 will certainly require increased versight by Occupatinal Health and Safety Officers. This may prve t be a burden t existing Occupatinal Health and Safety enfrcement and cmpliance mechanisms in the shrt term; hwever, cmpanies with rbust health and safety plicies shuld be able t adapt t these changes relatively easily. It is critical fr all parties subject t the OHSA t undertake a review f their present plicies and educatinal prgrams t ensure that their entire wrkfrce is prperly educated abut the changes t rights and bligatins. This Bulletin is intended as general infrmatin at the time it was written and is nt t be relied upn as legal advice. Fr further infrmatin please cntact any member f ur Occupatinal Health & Safety team. 6