With sweeping changes to its occupational health and safety legislation, along with its workers’ compensation system, Alberta has caught up to — and in some cases surpassed — other provinces.
That’s according to experts looking at highlights from the Act to Protect the Health and Well-being of Working Albertans, in effect as of Dec. 15. The legislation is meant to modernize Alberta’s health and safety system to reflect today’s workplaces, increase employee participation, improve safety, and boost supports to injured workers.
Some of the major changes include the right to refuse unsafe work, mandatory joint health and safety committees, clarified roles for workplace individuals, protections against workplace violence and harassment, and reporting of near miss incidents.
The new legislation is significant, said Gordana Ivanovic, a lawyer at McMillan in Calgary.
“Nothing has been done in the last 40 years in terms of a
comprehensive review of that
legislation, so I think there are some considerable changes to the act for sure.”
Overall, this is a catchup to other provinces, said Siobhan Vipond, secretary-treasurer at the Alberta Federation of Labour in Edmonton.
“We are now at the top of the pack and that’s going to be good for worker safety,” she said.
Refusing unsafe work
One of the big changes involves employees’ right to refuse unsafe work, with protection from any form of reprisal, including the loss of compensation or benefits, said Vipond.
“It’s something that most Canadians have but, here in Alberta, we didn’t actually have that. We had this ‘You have a responsibility to refuse,’ with all these caveats about what that meant, and penalization that could come with that happening.”
The legislation also states workers have a “right to know” about potential hazards, and access to basic health and safety information in the workplace, along with a “right to participate,” meaning they are involved in health and safety discussions and committees.
“There are employers who ask employees to do unsafe work because they are unwilling to invest either the time or the money in order to have the right equipment for the right job or the right amount of people doing the right thing, or any of those elements, so workers are in a vulnerable situation… so this idea that you have a right to refuse and you cannot be penalized is extremely important, and fundamental... when it comes to being safe,” said Vipond. “This is going to be a huge tool for workers.”
Changes around harassment
Another significant change is meant to protect people from workplace violence and harassment. This includes new legislative definitions, as well as outlining the responsibility of employers, supervisors and workers to refrain from these activities.
“Now we’ve got an actual definition of what is workplace violence and harassment… and employers and supervisors now have to address and prevent any such actions at the worksite,” said Ivanovic.
“Previously, only issues of violence were to be addressed by employers under the code, but there was nothing specific in the actual Occupational Health and Safety Act itself.”
But Sharon Roberts, a partner at Field Law in Edmonton, said she has concerns about the change.
“We’re taking something that already exists in another legislated realm, in human rights… and we’ve now incorporated that into workplace health and safety… I think that it trivializes the significant injuries that come about in workplace accidents,” she said.
“We’re asking employers in high-risk workplaces to now pay as much attention to that as they are to making sure there are guards on all of their equipment, and that workers are going to be physically safe to return home at the end of the day. And I don’t think that’s the same playing field, and I don’t think safety people are experts in that.”
Including harassment in the legislation is going to be challenging to administer for both employers, and at the government oversight level, said Roberts.
“Impliedly, it’s now saying those things are akin to one another, that an offence by harassing somebody under the health and safety act is akin to causing permanent change to someone’s well-being or taking their life in a workplace accident, and they’re not the same.”
But this change has to do with accessibility for workers, because working through the human rights system can be challenging, said Vipond.
“You have to have time, you have to understand the system, you maybe have to have finances to work through it… human rights legislation is a harder legislation to work your way through. But when we look at occupational health and safety, this should be a quicker turnaround.”
Plus, many employers don’t take an active role when it comes to human rights, she said.
“They don’t realize that if you are in a workplace and there is somebody who everybody knows is making inappropriate comments or inappropriate touching, by putting it in OH&S legislation, it’s very clear now that the employer has a role to stop that, versus looking the other way or excusing it.”
Near misses to be reported
Alberta employers will also be required to report “near miss” incidents to the provincial government, meaning any incident that had the potential to cause serious injury to a person, but did not.
Previously, it was only extreme situations that were reported, and OHS legislation was based on the numbers coming out of the workers’ compensation system, said Vipond.
“This idea that you’ll have to report near misses means that we’ll have better data so we’ll know what the issue is,” she said.
“(It’s about) ‘Let’s make sure we are identifying hazards early and then fixing them... there’s so many workplaces where people don’t report because of fear of being disciplined or they don’t think it’s worth it; it’s too much trouble.”
Near misses are an opportunity to learn about what’s probably going to go wrong, and what we should be looking at, but there needs to be a culture of trust for people to honestly do that, said Dan MacLennan, executive director at the Alberta Construction Safety Association in Calgary.
“We want to make sure there’s a culture of collecting near misses to learn from them and fix it, so those misses are addressed and disappear through system improvements.”
The legislation also clarifies the roles and responsibilities of workplace parties for health and safety, including the obligations of employers, supervisors, workers, owners, prime contractors, subcontractors, suppliers, service providers, self-employed persons and temporary staffing agencies.
“Times have changed from just having an employer-employee relationship — there’s other parties involved. Now, there’s a lot of independent contractors at worksites; worksites are going to have two or more employers,” said Ivanovic.
“They’ve also included more people who need to be kept safe, so it’s not just an obligation to workers on-site but any individual or person who is at or near the vicinity of the workplace or worksite is now owed this obligation by employers and supervisors as well.”
The introduction of that language is simply acknowledging workplaces have changed, she said.
“We just need to ensure people are protected and we’re acknowledging who has the power and the control.”
Also new: Workplaces with 20 or more employees will be required to have joint worksite health and safety committees. And while some employers may take umbrage with the rule, it makes sense, according to MacLennan.
“Take advantage of it to communicate with workers,” he said. “I learn good things from those meetings that I don’t often learn otherwise, including managing and walking and talking around. I learned this path has some great ideas that are easy to implement and address concerns.”
With committees, it’s not just employers that are involved in the safety of the workplace, “it means employees will have a mechanism to do this,” said Vipond.
“We need to raise the floor, listen to workers, the people who are actually doing the work, and have a voice to say what they see as hazards, and then near misses. But it’s also this idea we’ll then have a culture where we can talk about health and safety, and this isn’t something you get penalized for, so we can make sure everyone goes home at the end of their shift.”
Alberta has also made several changes to the Workers’ Compensation Board (WCB). These include the establishment of an independent Fair Practices Office to help Albertans navigate the system by providing additional resources.
The board would also remove the maximum insurable earnings cap of $98,700 per year, allowing injured workers to receive benefits in line with their expected annual earnings, while improving benefits for surviving spouses and children when a worker is killed on the job, and young workers who sustain a long-term injury.
Other changes include improved retirement benefits for injured workers, interim relief while decisions are under review and appeal, and enhanced coverage for psychological injuries.
Some of the expansions to coverage were overdue, such as the death benefits, psychological injuries, and insurable earnings, said Sharon Roberts, a partner at Field Law in Edmonton.
However, some “will almost certainly result in substantial increases to employers for their WCB dues, and I worry a little bit about what that’s going to do to smaller employers or newer companies… whether that’s going to have a negative affect financially on the economy that may be disproportionate to the benefits it’s providing.”
These improvements are extremely important, such as the removal or elimination of the insurable earnings cap, said Siobhan Vipond, secretary-treasurer of the Alberta Federation of Labour in Edmonton.
“This was a hindrance to people reporting, especially in a province such as ours, which has fairly high wage earnings for some of the more dangerous jobs.”
And with the Fair Practices Office, it’s hoped workers, especially non-unionized ones, will have more support, she said.
“We have a very healthy compensation system in terms of it’s well-funded, it’s managed, the resources are there, so it’s time that we ensure that those resources being there are not on the back of workers being denied their rightful compensation.”
And, hopefully, more people will report, said Vipond.
© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.