Bill 47, Ongoing Pandemic and Beyond

Happy New Year! As we fully enter 2021 and look forward, those of us in the health and safety profession are likely still heavily focused on the pandemic and what this means for our operations – but in the background, the Government of Alberta has tabled some significant changes to OHS legislation (with a currently fluid enforcement date) and we at Pinchin felt it was worth highlighting these, as well as looking ahead to the challenges of the year.

Bill 47

Bill 47: Ensuring Safety and Cutting Red Tape Act, 2020, received Royal Assent just prior to Christmas The Bill reverses several items brought in by the previous government and appears driven by the Red Tape Reduction focus of the current government. There are a number of key items affecting the OHS Act:

• The removal of the Joint Health and Safety Committee requirements for construction sites. While this absolutely reduces potential workload for the Prime Contractor at a site, all of the Prime Contractor responsibilities remain. In our experience, many construction sites were managing the previous requirement through keeping project staffing levels or project length below the threshold, so this may ultimately have little impact. There are also a variety of clarifications on Joint Health and Safety Committee requirements for all other work sites. Finally, certain aspects regarding content of health and safety programs is moving into the OHS Code, based on the idea that specifics should be referenced in the Code instead of the Act.
• Changes to work refusal and disciplinary action components within the OHS Act. On the surface, the changes seem minimal, but there are key changes regarding payment of workers who refuse work; under the current legislation there is an express requirement to pay a worker who refuses work during the work refusal process. This will be removed, which may be well received by employers, but puts a heavier burden on the worker. Workers are already burdened with the perception of job loss and being categorized as problem workers if they refuse, and this change will add a financial aspect that may find workers even more reticent to refuse unsafe work.
• The removal of “self-employed persons” as a separate category of duties under the Act. In our opinion, this was never needed as a self-employed person was covered under the definitions of an employer, but this has been challenged in the past and likely will be challenged in the future.
• Simplifications and clarifications regarding what types of incidents actually have to be reported to the government. In our opinion, what the existing legislation stated was not being done consistently (or in many cases at all) by a large number of smaller employers, so this change simply moves closer to what is happening in the province. The requirement to pay workers when a company is under a stop-work order has also been removed.
• The Radiation Protection Act would be rolled into the OHS Act. This affects a relatively small number of employers, but as a stand-alone Act, often was either ignored or unknown. As with what occurred when several Regulations were rolled into the Code, this change has the benefit of highlighting its presence.
• A variety of changes of definitions and other components to the OHS Act.

There are also significant changes that affect WCB. In almost all cases they are items that will reduce costs for employers and reduce potential compensation for workers. Key items include:

• Reinstatement of the earnings cap for injured workers.
• Reinstatement of the voluntary requirement to reinstate injured workers after recovery.
• Removal of the requirement for employers to fund injured workers medical plans.
• Return the role of calculating cost of living increases to the WCB directly instead of being tied to the Alberta consumer price index.

These changes will likely be well received by the large majority of employers, but have engendered strong reaction from worker advocate groups. Of note to Pinchin, there remains no substantive changes to the OHS Code, legislation that was last significantly changed in 2009. While a Code review is underway, it may be as late as 2023 before those changes are enacted.

The Ongoing Pandemic

While there does appear to be (dim) light at the end of the (very long) tunnel with the arrival of vaccines in Canada, the COVID-19 Pandemic will remain a key impact on health and safety in 2021. We know from our experience in 2020 that many companies chose to “ride out” the early stages by simply postponing safety aspects on the hope that things would return to normal by late summer of last year. We know, however, that we will be fortunate if things return to any form of normalcy by winter of 2021. With the arrival of more easily transmissible variants of the virus, the chance for workplace transmission is actually expected to increase in the short term. Combine this with ongoing COVID fatigue and increase mental health impacts for workers and there remains serious potential risks this year. In reviewing what we are seeing in the field when supporting our Clients in conducting field audits or in developing their COVID response plans, we have noted some major trends:

• Reduced safety capacity – safety staff are either being let go as a cost-savings measure or being asked to do more with less due to reduced capacity. This same trend is also affecting work processes in general, putting workers at greater risk.
• Reduced onsite oversight and auditing – as a means of reducing transmission risk, onsite reviews are being reduced, which means that the ability for safety staff to provide positive reinforcement or catch negative trends is being seriously hampered.
• Reduced safety training – while a number of agencies have been able to migrate their training to the online environment, many training items (fall protection, confined space, etc.) lose important hands-on components in a virtual environment. In our experience, workers in general benefit more (and often prefer) hands-on experience, that has become more difficult to provide. Reduced training means increased risk.

The one major opportunity we see from the Pandemic is the opportunity to document the successes and plan for the future. After the fires in Slave Lake, Pinchin was able to put together a “play book” for responding to large fire events in supporting our Clients. That play book became invaluable when the Ft. McMurray fires hit, and we were able to support our Clients quickly and efficiently. This will not be the last Pandemic, or for that matter, last major business interruption. We are urging all of our Clients to develop business continuity programs, using that information and experience from the current event to provide concrete answers for future events. The Canadian Standards Association has an excellent standard, CSA Z1600-17, Emergency and Continuity Management Program, that is available for free to view for users in Canada and is recommended by the Alberta Emergency Management Association as a go-to for developing programs. We have had great success utilizing this for our Clients.

But Wait, There’s More

While the two previously discussed items will absolutely contain the focus for 2021, there remains all of the normal day-to-day health and safety issues to be prepared for. Increased focus on the Pandemic means resources normally allocated for dealing with noise or chemical exposure may be redirected to other areas, yet they remain. The Alberta Government has stated that their priority for inspections (for now) is focused on those businesses that have remained open, or are about to re-open, during any provincial lock downs. But their overall initiatives remain with a focus on work activities that involve:

• musculoskeletal disorders due to repetitive use, overexertion and heavy lifting;
• slips, trips and falls; and
• psychosocial hazards (i.e. workplace violence, harassment, and mental health).

In terms of business types that are their focus, they are stated as:

• small businesses – private sector employers who have less than 20 workers; and
• vulnerable workers – individuals who have one or more of the following characteristics: are young (aged 24 or less), are older (aged 55 or more), are Indigenous, have a short tenure (employed in temporary, seasonal or casual work contracts/arrangements - up to 6 months) of work, are seasonal workers, have multiple jobs, or are temporary foreign workers, and/or migrants.

If your business fits into these, you can expect to see a greater level of enforcement later in the year than in previous years.

This year will be interesting to navigate from a safety perspective but forewarned is forearmed. Have a safe 2021.

If you would like more information on Pinchin's OHS Services, please contact Chris Taylor through LinkedIn or @ [email protected]