The Government of Alberta has introduced Bill 47, the Ensuring Safety and Cutting Red Tape Act, 2020 ("Bill 47") to amend the Workers' Compensation Act ("WCA") and the Occupational Health and Safety Act ("OHSA").
Bill 47 was introduced on November 5, 2020. In the first reading speech, the Minister of Labour and Immigration stated that Bill 47 "proposes a number of changes to occupational health and safety laws to add clarity, streamline processes, and improve health and safety outcomes" and "proposes changes to the Workers' Compensation Act that will ensure the system is sustainable, affordable, and fair". Bill 47's notable proposed changes are summarized below.
Changes to the WCA:
- Reducing the Appeal Time Limit. The current limitation period for appealing a Workers' Compensation Board (the "WCB") decision to the Appeals Commission is two years. That limitation period will be reduced to one year. This proposed change will come into force on April 1, 2021.
- Removing the Legal Obligation to Reinstate Workers. Currently, employers have an obligation to offer to reinstate injured workers who have worked for the employer for at least 12 months prior to their injury. Bill 47 proposes to remove this obligation. Employers will still have a duty to accommodate workers pursuant to the human rights legislation. Additionally, Bill 47 proposes to incorporate a "duty to cooperate" which will require both employers and workers to cooperate to facilitate the worker's "early and safe" return to work. If a worker fails to cooperate in a vocational or rehabilitation program, the WCB may reduce or suspend compensation. Additionally, an employee will have an obligation to take all reasonable action to mitigate their loss of earnings. This proposed change will come into force on April 1, 2021.
- Removing the Legal Obligation to Contribute to Health Benefit Plans. Bill 47 proposes to remove the employers' obligation to make contributions to health benefits for injured workers who are absent from work. Employers may voluntarily choose to continue to contribute to health plans and the injured worker will still receive WCB benefits related to their injury. This proposed change will come into force on April 1, 2021.
- Reinstating a Maximum Insurable Earnings Cap. Currently, injured workers are compensated at 90% of their estimated loss of net earnings as determined by the WCB. Bill 47 will reinstate a maximum earnings cap. The maximum amount which will be applicable in 2021 has not been prescribed yet. This proposed change will come into force on January 1, 2021.
- Removing Mandatory Cost of Living Adjustments. The WCB will no longer be required to automatically adjust cost of living estimates based on the Alberta Consumer Price Index. The WCB will still have the authority to make adjustments, as necessary, to properly approximate cost of living for the purpose of calculating worker compensation. This proposed change will come into force on January 1, 2021.
- Limiting Psychological Injury Presumptions. Currently, a worker who is exposed to a traumatic event during the course of the worker's employment and is diagnosed with a psychological injury can rely on a presumption that the injury arose out of and occurred during the course of their employment. Bill 47 proposes to limit that presumption to first responders, correctional officers and emergency dispatchers. However, additional classes of workers may be prescribed by regulation. Other workers can still receive coverage for work-related psychological injuries through the regular claim process. This proposed change will come into force on January 1, 2021.
Changes to the OHSA:
- Clarifying the Dangerous Work Refusal Process. Bill 47 attempts to simplify and clarify the right to refuse dangerous work provisions. The most significant proposed change is to limit work refusals to situations where a worker believes on reasonable grounds that there is an "undue hazard" - defining "undue hazard" as "a hazard that poses a serious and immediate threat to the health and safety of a person". Currently, workers can refuse work if there are reasonable grounds that a "dangerous condition" exists, a concept which is not defined. Bill 47 also proposes to remove the requirement that employers continue to provide workers with wages and benefits if they refuse work.
- Redefining Serious Injuries and Incidents. Bill 47 proposes to revise the serious injuries and incidents section of the OHSA to include illnesses and exposure to radiation. Additionally, reporting will be required if there is reason to believe a worker will be admitted to a hospital (beyond treatment in an emergency room or urgent care facility). Currently, reporting is only required when the worker is admitted to a hospital as an inpatient pursuant to admitting orders from a physician. Bill 47 also proposes to require investigations in the event of an incident which had a likelihood of causing serious injury or illness and there is reasonable cause to believe that corrective action is necessary to prevent recurrence.
- Limiting Discriminatory Action Complaints. Bill 47 proposes to rename "discriminatory action complaints" to "disciplinary action complaints" to avoid confusion with human rights laws. Additionally, a 180 day limit for filing a disciplinary action complaint would be introduced. Bill 47 also gives officers the authority to refuse to investigate complaints in certain circumstances (such as where the complaint is without merit or is frivolous).
- Removing Health and Safety Program Requirements. Currently, the OHSA sets out the minimum requirements that need to be included in health and safety programs. Bill 47 proposes to repeal those requirements. Employers who regularly employ 20 or more workers will still be required to establish and implement a health and safety program, however the OHSA would no longer specify mandatory elements for such a program. Instead, a health and safety program will be defined generally as a "co-ordinated system of procedures, processes and other measures that is designed to be implemented by organizations in order to promote continuous improvement in occupational health and safety". The stated purpose of this proposed change is to allow employers more flexibility to develop programs best suited for their workplace.
- Removing Health and Safety Committee/Representative Requirements on Certain Worksites. Bill 47 proposes to remove the requirement for establishing a worksite-specific health and safety committee/representative on worksites that have 2 or more employers and a prime contractor. Instead, prime contractors will be required to have a designated person responsible for ensuring cooperation between employers and workers and implementing a system to address health and safety issues.
- Incorporating Self-employed Individuals into the Employer Category. Currently, self-employed individuals are separately defined and have differing obligations to employers. Bill 47 proposes to define self-employed persons as employers and remove such distinctions.
- Removing the Legal Obligation to Pay During Stop Work/Use Orders. Bill 47 proposes to remove the requirement for employers to continue to provide workers with wages and benefits when a stop work order or stop use order is issued.
The proposed changes to the OHSA will come into force upon proclamation. Publications released by the Government of Alberta suggest they will take effect on September 1, 2021.
Takeaways for Employers
The Government of Alberta has stated that Bill 47 was introduced to restore balance to Alberta's labour law, improve health and safety, provide sustainability and remove unnecessary barriers to job creation to get Albertans back to work. The bill reverses changes made by the former government in 2017.
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