Just in Time for the Holidays! The New and Improved OHS Act Takes Effect on December 1, 2021
October 2021 - 4 min read
Avid Field e-blast readers will recall our reporting that on December 9, 2020, the Government of Alberta passed Bill 47, the Ensuring Safety and Cutting Red Tape Act, 2020, which amended various work-related statutes, including Alberta’s Occupational Health and Safety Act (“OHS Act”). At the time, the government announced the OHS Act was in for a significant overhaul that promised to improve workplace health and safety and simplify rules to make them easier to interpret. After some delay, the amended OHS Act and revised regulations will take effect on December 1, 2021.
New Approach to Calculate the Number of Workers
The amended OHS Act simplifies which workers are counted to determine if an employer requires a health and safety committee or a representative. The requirements of 20 or more workers for a committee and 5 to 19 workers for a representative remain the same. However, the calculation is now based on the number of workers “regularly employed” and the daily average of full-time, part-time and self-employed workers at a work site, as the earlier version read. This new approach intends to depict worker numbers in normal conditions more accurately.
Prime Contractors and Worksites with Multiple Employers
Prime contractors may now be established on any multi-employer site, not just oil and gas or construction sites. Under the updated OHS Act, depending on whether there is or isn’t a prime contractor, the requirements for safety committees and representatives vary:
If there is a Prime Contractor
Health and safety committees and representatives will no longer be mandatory in worksites with multiple employers and a prime contractor (although Alberta OHS may still require one). It will be up to the prime contractors and the employers to coordinate health and safety issues.
If no Prime Contractor
In this event, the person in control of the site has the option to voluntarily designate a prime contractor who would assume prime contractor responsibilities for health and safety. If no prime contractor is selected, a committee or representative will still be required.
The Technical Requirements Have a New Home under the OHS Code
The technical rules and requirements for committee and representatives now have a new home under the OHS Code, allowing for easier amendments in the future as opposed to the more involved process of amending the Act.
Tailored Health and Safety Training Options (no running with scissors, mind you…)
The amended OHS Act provides employers with more flexible options for training, allowing tailoring to better meet the needs of the workplace. Moreover, the training requirements for committee members (including co-chairs) and representatives are no longer limited to government-approved courses or training but may now follow the general guidelines of the OHS Code.
Flexibility in Developing Health and Safety Programs
Employers and workers will now also have more flexibility in developing programs that best suit their workplace as mandatory elements for programs have been removed. Instead, guidelines to assist workers and employers will be forthcoming. That said, employers with 20 or more regularly-employed workers must still have a written safety program.
Incorporation of the Radiation Protection Act (get some glowing results!)
The Radiation Protection Act has been incorporated into the OHS Act and the OHS Code for all health and safety laws to be found under one statute. Other than some administrative changes, the laws surrounding the radiation protection program remain intact.
Additions to Injury Reporting Requirements
The updated OHS Act extends the requirements for injury reporting. The legislation now requires that work-related illnesses, injuries, or incidents that result or are likely to result in admission to the hospital be reported. Further, with the incorporation of the Radiation Protection Act, exposures to radiation in excess of the limits stated in the OHS Code must be also be reported.
Near Misses: Once Again, an Opportunity for Learning, Not Enforcement
The updated legislation clarifies what is a potentially serious incident and when it must be reported, noting that such events will only be used for enforcement under exceptional circumstances such as where the serious hazard is still present.
Limiting Dangerous Work Refusals
The amended act has altered the language so that workers may only refuse work if it poses an “undue hazard” as opposed to a “dangerous condition” as was articulated under the previous version. An undue hazard is now clearly defined as something that poses a serious and immediate danger to the worker or others on the worksite.
Discrimination No Longer an OHS Word
Retaliation for work refusals, currently referred to as “discriminatory action complaints,” are now called “disciplinary action complaints” to avoid confusion with human rights laws.
The updated legislation also now imposes a 180-day time limit to file a complaint, commencing on the day of the alleged disciplinary action. Once a complaint is submitted, OHS officers reserve the right to dismiss complaints of questionable merit prior to the start of an investigation. In this event, a worker can request that an OHS director review the officer’s decision.
As for unionized workers, they are now excluded from this section and must address complaints through the grievance procedure under their collective agreement.
Increased Efficiency and Flexibility for Allowances and Approvals
The amended OHS Act now simplifies the process for acceptances and approvals for requests for alternative approaches to a requirement of the OHS Code. This is expected to make the process quicker.
Allowances have also been added to provide flexibility when requirements lag behind advances in technology and processes. Under these circumstances, OHS directors may allow for alternatives that vary from the OHS Code so long as they do not reduce health and safety.
The new amendments to the OHS Act taking effect on December 1, 2021, will likely come with many trials and tribulations for workers and employers alike. Field Law is here to help navigate the changes and provide strategic advice and support. Please contact Steve Eichler, Derek Cranna, Austin Ward, Connor Malone or any lawyer from the Labour + Employment group to discuss the best options for you.