Alberta Employment Legislation Update
Spring is a time of renewal. This year, it is a time for legislation changes that affect Alberta employers.
This update provides a summary of legislative changes to the Occupational Health and Safety Act ("OHSA"), the Workers' Compensation Act ("WCA"), and the Labour Relations Code ("LRC") that have recently, or will soon, come into effect. The OHSA changes will impact all employers. The WCA changes might impact most employers. The LRC changes will be of primary interest to employers who are, or are at risk of being, unionized.
Occupational Health and Safety Act
The Government of Alberta will replace the current Occupational Health and Safety Act ("Old OHSA") with a new version (the "New OHSA"). The changes will come into force and effect upon proclamation. A date for proclamation has not yet been announced. A summary of the expected OHSA changes is as follows.
Refusal of Dangerous Work
· The New OHSA narrows circumstances in which a worker can refuse work. A worker will only be able to refuse work if the work poses an "undue hazard", defined as "a hazard that poses a serious and immediate threat to the health and safety of a person."
· Workers cannot be subject to "disciplinary action" for refusing to perform work (changed from "discriminatory action").
· The New OHSA removes the employer's statutory obligation to continue to pay the same wages and benefits to workers who refuse work.
· Employers can assign other work to a worker who has temporarily refused work. These temporary assignments will not be deemed to be disciplinary in nature if there is no loss in pay to the worker.
· Note, employers must still be aware of constructive dismissal risks when reassigning work to employees.
Health and Safety Programs
· Employers must continue to establish a health and safety program; however, the program does not need to be established in conjunction with the joint work site health and safety committee.
· The New OHSA requires employers who "regularly" employ 20 or more workers are required to establish and implement a health and safety committee and a health and safety program; however, many of the requirements in the Old OHSA related to a health and safety program have been removed or amended.
Incident Reporting and Investigations
· Employers will have a statutory obligation to report when an illness results in the death of a worker, in addition to the previous requirements of reporting injuries and incidents that resulted in the death of a worker.
· Employers must report an injury, illness, or incident "in which 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."
· Under the New OHSA, employers will be required to investigate near misses.
Duties to Workers and Non-Workers
· Employers must ensure workers are "adequately trained in all matters necessary to perform their work in a healthy and safe manner."
· The New OHSA narrows the employer's duty to non-workers near the worksite to those "whose health and safety may be materially affected by identifiable and controllable hazards originating from the work site."
Self-Employed Person
· Under the New OHSA, a self-employer is deemed to be an employer (under the Old OHSA, a self-employed person was deemed to be a worker).
Occupational Health and Safety Code Review
While not a direct part of the legislative change, the Occupational Health and Safety Code (the "OHS Code"), which contains detailed provisions regarding types of hazards and hazard controls (including but not limited to the hazards of violence and harassment) will be under review by the Province as well. The Province is seeking input into the OHS Code through an online survey, which closes on May 10, 2021.
Workers' Compensation Act
As of April 1, 2021, a number of changes to the WCA came into force and effect. A summary of the key WCA changes is as follows.
Employer Obligations Regarding Employee Reinstatement
· Employers are no longer statutorily obligated to reinstate workers to pre-injury or comparable positions.
· There is no longer a statutory presumption that an employer who terminates the employment of a reinstated employee has not fulfilled the employer's obligation to return the worker to work.
· Note, employers still have a duty to accommodate disabled workers pursuant to the Alberta Human Rights Act.
· Employers no longer have a statutory obligation to pay the premiums for workers' extended health care benefits for a year post-injury.
Obligations to Cooperate with the WCB
· Employers have an obligation to cooperate with the WCB and the injured worker to achieve the early and safe return of the worker to the worker's employment.
· Workers have an obligation to take "all reasonable action" to, both, mitigate the worker's loss of earnings after an injury, and cooperate with the WCB in the development of a vocational or rehabilitation plan for the worker.
· Workers who fail to cooperate in a vocational or other rehabilitation program without good reason may have their WCB benefits reduces or suspended.
Appeal Process
· The time-limit for filing an appeal of a WCB claims adjudicator decision, or an appeal of a WCB decision made in respect of an assessment, is one year, reduced from two years.
Fairness Review Officer and Medicals Panels Office
· The former Fair Practices Office has been replaced with a Fairness Review Officer. The Fairness Review Officer will be an employee of the WCB who has the power to make recommendations to the WCB for the purpose of determining administrative fairness and processes used to reach decisions "relating to a breach of the Code of Rights and Conduct in which a worker, dependent, or employer is or may be aggrieved."
· The Medical Panels Office has been abolished, and the Lieutenant Governor may now appoint a Medical Panels Commissioner who is responsible for the operation of the medical panel process.
Insurable Earnings Cap (in force as of January 1, 2021)
· The maximum insurable earnings cap for injured workers has been reinstated for accidents occurring on or after January 1, 2021. The injured worker will be compensated at 90% of their yearly net earnings to a maximum of $98,700.
· Cost of living adjustments are to be set annually by the WCB.
Egregious Conduct (in force as of January 1, 2021)
· A temporarily disabled injured workers' WCB benefits may be affected if the employer withdraws modified work from a worker or dismisses the worker during temporary modified work due to the worker's misconduct (referenced as "egregious conduct").
· The WCB does not consider it a withdrawal of temporary modified work on the employer's part if the employer temporarily suspends the injured worker for disciplinary reasons, provided the period of suspension is consistent with the employer's normal practices.
Labour Relations Code
On February 10, 2021, a number of changes to the LRC came into force and effect. A summary of the key changes is as follows.
· Employers and unions can agree to enter into a new collective agreement before a current collective agreement expires, subject to the satisfaction of the Alberta Labour Relations Board (the "ALRB") that the employees have given informed consent to the new collective agreement.
· The window for employees to apply to revoke certification of Union representation has been narrowed to correspond with the allowance for parties to enter into a new collective agreement before their collective agreement expires.
· ALRB consent is now required prior to the Union and employees engaging in secondary picketing (picketing other than at the employee's regular place of employment).
· While the ALRB is still the body that addresses challenges to decisions of labour arbitrators, the statutory standard for how those decisions are to be reviewed has been removed, and the ALRB now has broader authority to grant costs after conducting a review of an arbitration award.
· Construction and maintenance bargaining rights have been altered to allow for all-employee and trade-specific bargaining units.
· It is permissible for the Building Trades of Alberta to negotiate and enter into time limited project agreements.
Note, the Alberta government has passed a provision that obligates Unions to provide, both, Union financial statements to their members, and the opportunity for employees to opt-out of paying the portion of Union membership dues that go towards funding Union-favoured political parties and causes. However, these provisions are not currently in force and effect, and, to date, the government has not announced when these provisions may come into force and effect.
Conclusion
Employers are encouraged to review their policies and practices to ensure compliance with these legislative changes. Please contact Neuman Thompson's experienced legal team at any time if you have any questions or would like assistance with regard to the changes.
Disclaimer: this summary update of legislation changes is provided as an information service. Legislation is subject to changes, and this information is not provided as legal opinion or advice.
Neuman Thompson uses your contact information to send you information electronically on labour and employment legal topics that may be of interest to you. If you have any questions about our information practices or obligations under Canada's anti-spam laws, please contact us at tlewis@ntlaw.ca.
The information in this update is intended as general information and should not be relied on as legal advice.