By Norm Keith
Alberta has made sweeping changes to its occupational health and safety legislation. The changes are consistent with a national trend towards empowering workers, giving more power to regulators and placing more pressure on employers to prevent accidents, injuries and fatalities.
The changes will likely come into effect on June 1, following a comprehensive review by the provincial government. The current Occupational Health and Safety Act will be replaced by a significantly expanded law that recognizes new rights, creates new obligations and enhances enforcement. Many owners, employers and other work site parties will be required to take active steps to comply with the new legislation.
Some highlights of the new Alberta OHS act include the following:
New work site parties and obligations: The new act recognizes and imposes obligations on several work site parties that were not named in the old act, including supervisors, self-employed persons, trainers, consultants and other service providers and temporary staffing agencies. The new act also includes express obligations for owners, who must ensure that the land, buildings or premises under their control are provided and maintained in a safe condition.
Expanded rights for workers: Workers’ right to refuse unsafe work is formalized in the new act and they are protected against a range of “discriminatory action” that is considerably wider than the disciplinary action prohibited under the old act. Employers and supervisors are also obliged to ensure that none of their workers are subject to, or participate in, harassment or violence at the work site. “Harassment” includes even a single instance of “objectionable or unwelcome conduct, comment, bullying or action” that the perpetrator knows, or ought to reasonably know, will offend or humiliate the worker or adversely affect the worker’s health and safety.
Changes to the prime contractor requirement: Under the new act, the prime contractor requirement only applies to construction and oil and gas work sites (or to designated sites or types of sites) that have two or more employers or self-employed persons (or one or more of both). Where no prime contractor is designated, the prime contractor responsibility will default to the “person in control of the work site,” rather than to the owner, as under the old act. The prime contractor’s obligations are expanded and described in considerably more detail than under the old act.
Joint work site health and safety committees (JWSHSC): JWSHSCs will now be mandatory on all work sites having 20 or more workers and where work is expected to last 90 days or more. Where five to 19 workers are present, the work site must have a designated health and safety representative who has similar powers and duties to a JWSHSC. Establishing the committee and training its members is the responsibility of the prime contractor, or where there is no prime contractor, of all employers and self-employed persons at the work site. JWSHSCs will work with employers to identify and remedy OHS issues and will have the power to refer such issues to an OHS officer if they cannot be resolved. They will also be responsible for managing and recording concerns and complaints, and for developing and promoting educational and informational health and safety programs, among other duties. Workers are entitled to time off with pay for their participation in the JWSHSC.
Health and safety programs: Employers with 20 or more workers will be required to establish and implement a health and safety program having the minimum requirements specified in the new act. Employers with fewer than 20 workers will not be required to establish such a program, but will be required to involve workers and the health and safety representative (if applicable) in hazard assessment, control and elimination.
Additional incident reporting requirements: The employer must report an injury or accident resulting in any hospital admission under the new act. Employers will also be required to report near misses (any incident “that has the potential of causing serious injury to a person”). Mines and mine sites are singled out for additional incident reporting requirements, including out-of-control vehicles, emergency conditions necessitating the withdrawal of workers and any apparent weakening or subsidence of dams or dikes.
Inspection, investigation and enforcement: The new act gives OHS officers broader and more explicit powers of inspection and permits the issuance of stop work orders in a wider range of situations. Stop work orders may now pertain to more than one work site or to all of an employer’s work sites, and any workers directly affected by the order are entitled to continuation of their wages and benefits for the duration of the order (although the employer may reassign them to alternate work). Ticketing, orders, administrative penalties and prosecution all remain available under the new act and the list of offences has been extended. Maximum penalties for offences have not increased, but the new act provides greater scope for “creative sentencing” by removing some of the old act’s restrictions on payments to research, educational or training programs in lieu of fines.
Notably missing from the Alberta changes is any legislation dealing with the legalization of cannabis. With the Suncor case on random drug and alcohol testing on its way to the Supreme Court and Alberta workers being able to buy marijuana at licensed cannabis stores later this year, workers’ fitness for duty is a critical issue for employers who want to maintain a safe workplace.
Jordan Hulecki, an associate at Fasken in Calgary, co-authored this article. He can be reached at email@example.com or (403) 261-6161.
This column originally appeared in the April/May 2018 issue of COS.
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or firstname.lastname@example.org
, or visit www.ehslaw.ca
for more information.