Alberta employers: Changes to occupational health and safety legislation take effect on December 1, 2021

A number of significant changes to Alberta’s occupational health and safety legislation that were initially introduced in the fall of 2020 in Bill 47, the Ensuring Safety and Cutting Red Tape Act, 2020, will soon come into force on December 1, 2021 (the New OHS Act). In addition, the existing Occupational Health and Safety Regulation and Occupational Health and Safety Code have been updated and replaced.

Many of the changes, which the Alberta Government has stated are aimed at simplifying the legislation and making it easier to interpret, will come as a relief to employers who have experienced challenges in understanding and applying certain provisions of the existing legislation (the Current OHS Act).

The Dentons Employment and Labour group first wrote about the proposed changes last fall in our insight, Bill 47: Changes announced to Alberta’s occupational health and safety and workers’ compensation legislation.

This blog post summarizes the key changes reflected in the new legislation.

Changes to definitions and terms

• The definition of “health and safety” which previously included reference to physical, psychological and social well-being has been removed.
• A number of former individual director designations, including Director of Inspection, will be replaced with “OHS Director” who will have authority to vary or rescind orders and administrative penalties.
• “Contractors” will be renamed as “contracting employers”.
• Self-employed individuals will now be considered “employers” and have the same health and safety requirements as employers.

Health and safety representatives, committees and programs / prime contractor obligations

• On work sites with multiple employers where a prime contractor has been designated, health and safety committees and representatives are no longer mandatory.
• While prime contractors are still mandatory for oil and gas or construction sites, they may be established on any work site.
• If no prime contractor exists, health and safety committees or representatives are still required on multi-employer work sites.
• OHS Directors may still require a health and safety committee or representative for any work site.
• Technical requirements and rules governing health and safety committees and representatives will move from the Current OHS Act to the new Occupational Health and Safety Code (OHS Code). Numerous changes have been made to the current training requirements for health and safety committee members and representatives, intended to provide more flexibility.
• The rules in the OHS Code governing health and safety committees and representatives will apply to certain farms and ranches, but will have modified training requirements for committees and representatives. Farms and ranches otherwise remain exempt from the provisions of the OHS Code.
• Work sites with 20 or more workers still require a health and safety committee, but the legislation will now calculate this number based on workers who are “regularly employed” and excludes volunteers or others not receiving financial compensation from the calculation. 
• Work sites with between 5 and 19 workers still require a health and safety representative.
• The New OHS Act removes some mandatory elements for health and safety programs to allow more flexibility to employers and workers and their unique workplaces.

Reporting of serious and potentially serious incidents

• Employers or prime contractors must report serious injuries, illnesses or incidents as soon as possible. These include injuries, illnesses and incidents where there is reason to believe the worker has been or will be admitted to a hospital (beyond an emergency room or urgent care facility).
• Exposure to radiation will also be included under the incidents that must be reported.
• Potentially serious incidents (i.e., “near misses”) will still require the employer to conduct an investigation and prepare a report, which must be provided to an OHS officer on demand. However, the New OHS Act now allows for that to be done as a one-step process with the submission of the investigation report, without an initial report.

Disciplinary action complaints (formerly, discriminatory action complaints)

• These complaints have been renamed to avoid conflation with human rights legislation, which is distinct.
• The New OHS Act requires workers subject to a collective agreement to resolve complaints of this nature pursuant to the grievance process only.
• OHS officers will have enhanced authority to dismiss meritless or questionable complaints without an investigation, however workers may still appeal to an OHS Director for a review of the decision.
• Complaints under this section are now subject to a 180-day time limit from the date of the alleged improper disciplinary action.

Dangerous work refusals 

• An “undue hazard” is now defined as a “hazard that poses a serious and immediate threat to the health and safety of a person”.
• Workers retain the right to refuse dangerous work without reprisal, however, there is no express requirement for an employer to pay workers during a dangerous work refusal.

Incorporation of Radiation Protection Act into New OHS Act

• The Radiation Protection Act and its regulations will now be incorporated into the New OHS Act and OHS Code to consolidate health and safety laws into one statute.
• Exposure to radiation will now be included as a reportable incident.

Acceptances, allowances and approvals

• An OHS Director may issue “acceptances” to enable a work site party to take a different approach (e.g. an alternative tool, standard or PPE) to a requirement in the OHS Code, where that approach provides equal or greater protection.
• An OHS Director may issue an “approval” in some cases.
• The procedure of receiving either an “acceptance” or “approval” has been simplified to allow for faster processing. 
• An OHS Director may also order an “allowance”, allowing a person to vary from any provision of the OHS Code, provided no one’s health or safety is materially affected. Allowances will provide further flexibility when requirements of the OHS Code may lag behind advances in technology.
• An OHS Director may make “allowances” for certain industries or all industries as may be appropriate.

Section 67 of the New OHS Act, which dissolved the Occupational Health and Safety Advisory Council came into force on royal assent, on December 9, 2020.

The application of the New OHS Act and corresponding changes to the Regulation and OHS Code may vary depending on your specific circumstances. This summary is provided as an overview only. If you have questions about your unique work site and the impact of these changes, please do not hesitate to contact our Employment and Labour team for individualized advice and guidance.