On November 5, 2020, the Alberta Government introduced Bill 47, the Ensuring Safety and Cutting Red Tape Act, 2020 which introduces changes to Alberta’s occupational health and safety and workers’ compensation legislation. 

Bill 47 introduces the Occupational Health and Safety Act, SA 2020 c O-2.2 (the proposed OHS Act).  The Alberta Government has stated that the proposed OHS Act will “eliminate duplication and simplify language to make OHS laws easier to understand and follow, resulting in healthier and safer workplaces and supporting investment attraction and job creation.”

Bill 47 also proposes amendments to key provisions of the Workers’ Compensation Act, RSA 2000, c W-15 (the proposed WCA Act). The Alberta Government has stated that the proposed WCA Act will, “updat[e] labour legislation to make workplace safety laws easier to understand, creating a more sustainable workers’ compensation system to support Albertans now and into the future […] and will ensure the system is sustainable, affordable, and fair.”

Some key changes between the proposed OHS Act and the current Occupational Health and Safety Act, SA 2017, c O-2.1 (current OHS Act), include:

• Definitions
  • The definition of “health and safety” has been removed. Under the current OHS Act, “health and safety” is defined to include physical, psychological and social well-being.
  • With respect to obligations under the Act, self-employed persons is no longer a separate category, and is, instead, included under the employer category and subject to the same obligations and duties.
• Prime Contractor Obligations
  
  • No Joint Health and Safety Committee (HS Committee) or Health and Safety Representative will be required where there is a prime contractor at a multiple employer work site.
  • Where there is no prime contractor, the employers on site may enter into an agreement with a person to designate that person as the prime contractor of the work site.
  • Where there is no designated prime contractor, multiple employer sites will still be required to have HS Committees or Health and Safety Representatives.
  • Prime contractors will be required to ensure compliance with the legislation and are required to implement a system or process to ensure cooperation between the employer and workers in respect to health and safety.
• HS Committees and Representatives
  
  • Director remains able to require a HS Committee or Health and Safety Representative for any work site.
  • As with the current OHS Act, where an employer employs 20 or more workers, it must establish a HS Committee, and where an employer employs 5 to 19 workers, it must have a Health and Safety Representative. However, determining the number of workers an employer has for this purpose, will now be based on the number of workers an employer “regularly employs”.
  • HS Committees and Representatives’ duties and functions should be carried out during normal working hours.
  • The proposed OHS Act simplifies the list of duties of the HS Committee and Health and Safety Representative and does not set out training requirements or payment requirements. However, the Alberta Government has indicated that such rules will move to the OHS Code.
• Health and Safety Program
  
  • Employers with 20 or more workers will still be required to have a written health and safety program. However, specific requirements regarding the health and safety program that are outlined in the current OHS Act have been removed. The proposed OHS Act does indicate that the requirements of such programs are subject to the OHS Code.
• Dangerous Work
  
  • Workers still have the right to refuse to work if the worker believes, on reasonable ground, there is an undue hazard at the worksite or that the work constitutes an undue hazard.
  • The definition of “undue hazard” is clarified under the proposed OHS Act as a “hazard that poses a serious and immediate threat to the health and safety of a person".
  • Removes the express requirement that exists under the current OHS Act that a worker must be paid where they have refused to work.
• Disciplinary Action Complaints
  
  • Discriminatory action complaints will be renamed to disciplinary action complaints “to avoid confusion with human rights laws".
  • In keeping with the current OHS Act, no disciplinary action can be taken against a worker that is acting in accordance with the legislation. 
  • Where the parties are subject to a collective agreement, disciplinary action complaints will now be addressed through the grievance process, rather than through the OHS complaint process.
  • Officers will have authority to dismiss complaints that are without merit, or are frivolous, trivial, vexatious, filed with improper motives or otherwise an abuse of process, before commencing the investigation.
  • A worker who has been subject to disciplinary action, contrary to the legislation, may file a complaint within 180 days after the alleged contravention.
  • Where an officer has refused to investigate a complaint, the worker may request the Director to review the refusal within 30 days of receiving notice of the refusal.
  • Reverse onus will be retained – employers need to prove a disciplinary action is not related to a worker complying with OHS laws. There remains a presumption in favour of the worker.
• Acceptances, Allowances & Approvals
  
  • Outlines what the Director may consider when determining whether to issue an acceptance.
  • Restates the concept of variances under the current OHS Act as allowances.
  • Modifies the concept of approvals, wherein the Director may issue an approval provided the terms and conditions needed to maintain the health and safety of a person are met.
• Rules around serious incident reporting
  • The proposed OHS Act will define serious incidents and the requirements for reporting them. For example, illnesses and exposure to radiation are now included under serious injuries. With respect to hospital admissions, the reporting requirements are now triggered “where there is reason to believe” the worker has been or will be admitted to a hospital beyond treatment in an emergency room or urgent care facility.
  • For incidents that are near misses, i.e., where an incident occurs where the incident had a likelihood of causing a serious injury or illness, and there is reasonable cause to believe that corrective action may need to be taken to prevent recurrence, under the proposed OHS Act, the employer must still conduct an investigation.
• Stop work order
  • Employers are no longer expressly required to pay workers subject to a stop work or stop use order.
• Addition of Radiation Protection Provisions
  
  • Radiation Protection Act and its regulations are incorporated into the proposed OHS Act.

If passed, the proposed OHS Act will come into force on September 1, 2021.

Some key changes between the proposed WCA Act and the current Workers’ Compensation Act, RSA 2000, c W-15 (current WCA Act), include:

• Fairness Review Officer 
  
  • The “Fair Practices Office” of the current WCA Act is repealed and is replaced by a new Part 3.1 – “Fairness Review Officer.”
  • The Fairness Review Officer will be an employee of the Workers’ Compensation Board who will report to the board of directors and will make recommendations to the board relating to matters under the proposed WCA Act regarding administrative fairness and decision-making processes. The Fairness Review Officer will also make recommendations “relating to breaches of the Code of Rights and Conduct in which a worker, dependant or employer is aggrieved.”
• PTSD Presumptions
  • Under the proposed WCA Act, the presumption that all worker PTSD diagnoses will be presumed to be related to the worker’s employment unless there is evidence to the contrary will apply only to first responders, correctional officers, emergency dispatchers or members of any other class of worker prescribed by the regulations.
• Occupational Disease and Injury Advisory Committee
  
  • The Occupational Disease and Injury Advisory Committee would be abolished under the proposed WCA Act.
• Medical Panels Office
  
  • Under the proposed WCA Act, the Medical Panels Office previously established by the NDP Government would be abolished. Instead, the WCB would assume responsibility for compiling a roster of physicians to conduct medical examinations as directed by the WCB. The Lieutenant Governor may appoint a Medical Panels Commissioner.
  • The role of the Deputy Medical Panels Commissioner is abolished. 
  • The requirement to have a case conference before referring a matter to a medical panel is abolished. 
• Compensation for Disability
  
  • Under the proposed WCA Act, the calculation of disability payments will change and the language in section 56(18) has been updated to restore a cap on maximum insurable earnings. The restoration of the cap would be effective for claims occurring on or after January 1, 2021. 
  • Cost of living adjustments will be discretionary rather than tied to the Alberta Consumer Price Index. 
• Reinstating Workers and Continued Benefits:
  • Part 5.1 / section 88.1 of the current WCA Act is repealed and employers will no longer have a statutory obligation to reinstate injured workers who had previously worked for the employer for at least 12 months before the time of the accident. Similarly, employers will no longer be required by the legislation to contribute to benefit plans for injured workers who are off work.
  • These provisions are replaced by a revised Part 6 of the Act, now named “Vocational Rehabilitation and Duty to Cooperate.”
  • Additions to Part 6 add language that emphasizes both employers and injured workers must cooperate with one another to facilitate “early and safe” returns to work.
  • The failure of an injured worker to cooperate in return to work processes or vocational rehabilitation may result in suspended payments to the worker.
  • Employers continue to have a duty to accommodate injured workers under human rights legislation.
• WCB Appeals
  • The time limit for appealing a WCB decision to the Appeals Commission will be shortened to one year, from two years.
• Heroes Compensation Act – Schedule 1
  
  • The dependants of first responders and correctional officers killed in the line of duty on or after April 1, 2021 would be eligible for a one-time lump sum payment of $100,000. 

If passed, the proposed WCA Act will come into force on January 1, 2021.