New Alberta Law Makes Sweeping Changes to Occupational Health and Safety Act, Amends Workers’ Compensation Act

On December 9, 2020, Alberta’s Bill 47, the Ensuring Safety and Cutting Red Tape Act, 2020, received Royal Assent. The legislation replaces Alberta’s current Occupational Health and Safety Act in its entirety, and makes significant amendments to the Alberta Workers’ Compensation Act.

Below are some of the most significant takeaways for Alberta employers.

A. Joint Health and Safety Committees, Representatives

Establishment and Composition of a Joint Health and Safety Committee

The Ensuring Safety and Cutting Red Tape Act, 2020 repealed Chapter O-2.1 of the OHSA and enacted Chapter O-2.2. Under Chapter O-2.1, a joint worksite health and safety committee (JWHSC) was required if an employer employed 20 or more workers and work was expected to last 90 days or more.

Under Chapter O-2.2, a joint health and safety committee (JHSC) will be required only for employers that regularly employ 20 or more workers.

Furthermore, a JHSC will not be required for each employer at worksites with multiple employers and a “prime contractor.” Instead, prime contractors will absorb the JWHSC’s former role, coordinating safety issues between employers and workers. In the absence of a prime contractor, one of the employers is designated to fulfill this role.

In addition, there are no longer requirements with respect to the composition of the JHSCs, the meeting frequency, payment for meetings, timelines for resolving issues, or training.

The Government of Alberta has stated that additional specific requirements and rules for the JHSC and representatives may be added to the Occupational Health and Safety Code by regulation.

Duties of a Joint Health and Safety Committee

Under the repealed Chapter O-2.1, the joint worksite health and safety committee was explicitly required and empowered to perform worksite inspections, develop measures to protect the health and safety of persons at the worksite, develop educational programs, participate in incident investigations, maintain records, and carry out other duties and functions.

Chapter O-2.2 removes requirements with respect to site inspections, educational programs, investigations, and other duties that were previously performed by the JWHSC. Instead, it mandates a limited, document-based workplace inspection, and that the JHSC:

• receive, consider, and dispose of health and safety concerns respecting workers;
• “participat[e]” in the hazard assessment that is conducted by the employer;
• make recommendations to the employer “respecting the health and safety of workers”; and
• review the employer’s “work site inspection documentation.”

B. Health and Safety Programs

The new legislation removes the requirement on employers to create a health and safety program in consultation with the JWHSC, containing the prescribed elements under Chapter O-2.1. In its place, employers that regularly employ 20 or more workers are required to “establish and implement a health and safety program.” The Government of Alberta has stated that it will “provide guidelines to help employers and workers develop their health and safety programs.” The government added that “[e]mployers and workers will have the flexibility to develop programs that best suit their workplace.”

C. Dangerous Work and Disciplinary Action

Right to Refuse Dangerous Work

The new legislation overhauls the conditions under which a worker has the right to refuse work on the basis of a health and safety concern.

A worker may now refuse work only if the work poses an “undue hazard,” which is defined as “a hazard that poses a serious and immediate threat to the health and safety of a person” (emphasis added). This language narrows the types of circumstances that would have previously grounded a valid work refusal and potentially excludes the right to refuse work in response to workplace conditions that present only a risk of minor injury, or chronic injuries that present after cumulative or continued exposure.

In addition, employers are no longer required to continue to pay workers who have engaged in the work refusal process, relieving some pressure to urgently address concerns raised in the work refusal context.

Disciplinary Action Complaints

Employers cannot discipline or subject employees to adverse action if employees exercise their rights under occupational health and safety laws. Workers who have a complaint relating to this type of employer action now must file the complaint “within 180 days after the alleged contravention occurs, but not afterwards.” Previously, a time limit did not exist. Further, this type of complaint is renamed a “disciplinary action complaint,” as opposed to the previous “discriminatory action complaint,” in order to further highlight to employees that this complaint mechanism is not the same as a discriminatory complaint under the Alberta Human Rights Act.

In addition, unionized workers are now required to address complaints through the grievance mechanism under their applicable collective agreements, and they are no longer able to utilize the process created by the legislation.

D. Incident Reporting

The rules relating to reporting serious incidents have changed. Under the new legislation, employers must now also report when an illness results in the death of a worker. Previously, employers were required to report only where an injury or incident resulted in the death of a worker.

Employers must now investigate an 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.” However, there is not a duty to report such incidents.

E. Other Changes

The new law includes a number of other changes, including the following.

• A self-employed person is considered an “employer,” as opposed to a “worker,” and is required to meet the obligations of an “employer.”
• The definition of “health and safety” is removed, doing away with an expansive scope of obligations that included “physical, psychological and social well-being,” although this language has been incorporated into the purpose provisions of the new act, which state that “[t]he purposes of this Act are … the promotion and maintenance of the highest degree of physical, psychological and social well-being of workers.”
• An employer is no longer required to continue wage payment while a stop-work or stop-use order is in place.

Key Takeaways for Employers

Upon the date that the new act is proclaimed to be in effect, the following changes apply.

• Employers are required to create a JHSC only if they regularly employ 20 or more workers. This new committee will have a reduced list of duties in comparison to the JWHSC’s obligations.
• Employers are still required to have written health and safety programs, but the mandatory elements for these programs will be reduced or removed altogether.
• Employers are no longer required to pay employees who refuse to work, and employers will no longer be required to pay employees while a stop-work order is in effect.
• Employers will face reduced reporting obligations relating to serious injuries, illnesses, and accidents.

The Government of Alberta identified its purpose in enacting the new law as streamlining and simplifying current occupational health and safety processes, reducing administrative oversight, and encouraging employers and workers to work together to create healthy and safe workplaces. That being recognized, there remains a robust set of health and safety obligations and severe penalties, including both regulatory and criminal liability, for employers that are negligent in this area. Employers with operations in Alberta may want to be aware of opportunities to limit administrative burdens created by the new legislation while ensuring that their health and safety policies and protocols remain appropriate to the particular risk environments in which they operate.

Stephen Shore is a partner in the Toronto office of Ogletree Deakins.

Christina S. Persad is an associate in the Toronto office of Ogletree Deakins.

Caroline M. DeBruin is a 2020 graduate of Queen’s University, Faculty of Law, and an articling student in the Toronto office of Ogletree Deakins.