Written By Jennifer Miller, Simon Foxcroft, Jenna Vivian and Elizabeth Jonah

On December 1, 2021, sweeping changes to Alberta's current occupational health and safety legislation will come into force. The new laws rectify many of the previous challenges that arose from ambiguous and overly prescriptive statutory provisions, but in the short term, the revisions will constitute yet more change for employers already struggling to adapt their workplace policies and procedures to the ongoing pandemic. While there are many alterations to Alberta's existing occupational health and safety legislation, this article only addresses a number of the material changes.

New Occupational Health and Safety Act

Pursuant to an Order in Council dated October 20, 2021, an updated Occupational Health and Safety Act (the New Act) will replace the current act (the Current Act) on December 1, 2021. Only Section 67 of the New Act, which dissolves the Occupational Health and Safety Advisory Council and terminates the appointment of its members, will not take effect on this date.

The Government of Alberta states that the primary objectives of the New Act are the elimination of duplication and simplified language to make occupational health and safety legislation easier to understand and follow while preserving worker rights and protection. To this end, many prescriptive and vague provisions have been reduced or eliminated.

For maximum benefit, this article should be read in conjunction with the November 9, 2020 insight that we previously wrote, Proposed Sweeping Changes to Alberta's Occupational Health and Safety Act, about Bill 47: Ensuring Safety and Cutting Red Tape Act, 2020, and its proposed changes to the Current Act. As those proposed changes are all reflected in the New Act, readers are encouraged to identify in this article provisions that have now been added to the New Code.  For example, we previously mentioned an elimination of a supervisory duty regarding workers' PPE requirements in the New Act.  As a result of recent amendments, that obligation is now in the New Code. Despite the stated objectives underlying the revisions, as we predicted in our earlier comments we will still face interpretive challenges arising from the new legislation including PSI process and ambiguity around key but undefined terms.

Repeal of Occupational Health and Safety Regulations and Other Laws

Among the many far-reaching changes that will come into effect on December 1, 2021, several Orders in Council repeal the following legislation:

• The Administrative Penalty (Occupational Health and Safety Act) Regulation, which addresses notices, amounts, and time for payment of administrative penalties. After this change, all information pertaining to administrative penalties will be found under Sections 44 and 70 of the New Act; however, the New Act does not appear to specify what must be included in a notice of administrative penalty, what an officer must consider when setting the amount of an administrative penalty, or that the administrative penalty must be paid on or before the date specified in the notice of administrative penalty.
• The Farming and Ranching Exemption Regulation, which excludes specific farming and ranching operations from the definition of "occupation" under the Current Act. The content of the Farming and Ranching Exemption Regulation is currently duplicated at section 1.1 of the Current Code and the definition of "occupation" in the New Act now simply refers to the exemptions specified in the New Code thereby rendering the Farming and Ranching Exemption Regulation redundant. This change is directed to remove duplicity.
• The Radiation Protection Act and Radiation Protection Regulation, which address worker radiation health and safety requirements including worker exposure protection. These laws are being incorporated into the New Act and the New Code consolidating radiation health and safety requirements into one piece of legislation.
• The Radiation Health Administration Regulation, which delegates certain matters to authorized radiation health administrative organizations and radiation protection agencies. As described above, these matters will now be administered under the New Act and the New Code.
• The current Occupational Health and Safety Regulation (the Current Regulation), which is notable, as most of its content has been moved into the New Act and the New Code, with some modification, as further outlined below.

New Occupational Health and Safety Regulation

A significantly reduced form of Occupational Health and Safety Regulation (the New Regulation) will exist under the New Act.

The New Regulation clarifies that for the purposes of sections 13(1)(a), 13(2), 14(1)(a) and 14(2) of the New Act, "regularly employs" and "regularly employed" does not include the employment or engagement of workers to whom monetary compensation is not paid. This is a significant change for employers that regularly engage volunteers, as volunteers will not be included in the worker count when deciding whether a joint health and safety committee (JHSC) or health and safety representatives (HSR) is required.

The New Regulation also specifies that for the purposes of Parts 9 and 41 of the OHS Code, "a thing used or worn by a person" in the definition of "personal protective equipment" in section 1(ii) of the New Act means any thing that is used or worn exclusively by a single worker at a given time to restrict, restrain, suspend, arrest or otherwise protect the worker from a fall.

Lastly, the New Regulation provides the Minister with authority to establish research and education programs and occupational health and safety surveillance programs.

New Occupational Health and Safety Code

Many of the legislative requirements outlined in the Current Regulation will now be included in the updated Occupational Health and Safety Code (the New Code). The broad areas of change under the New Code are as follows:

Moving Day

A number of provisions of the Current Regulation have been imported materially unchanged into the New Act and the New Code as follows:

Personal Protective Equipment (PPE)

Equipment

The legislative requirements previously under Section 13(3) of the Current Regulation have been moved to Section 3.2 of the New Code. Under the Current Regulation, employers must ensure workers are competent in the application, care, use, maintenance and limitations of equipment and PPE. Under Section 3.2 of the New Code, the employer's obligation is limited to ensuring the worker uses or wears the equipment or PPE, provided that employers remain obliged to ensure that workers are trained in the correct use, care limitations and assigned maintenance of PPE under Section 228(d). However, the New Code also places this responsibility upon supervisors, which is similar to Section 4(a)(iv) of the Current Act.

Following Specifications

Under section 12 of the New Code, an employer's obligations with respect to equipment and PPE have been expanded upon to include ensuring that equipment and PPE used or worn at a work site is maintained in a condition that will not compromise the health or safety of workers using or transporting it, will safely perform the function for which it is intended or was designed, and is free from obvious defects. This is consistent with section 12 of the Current Regulation, although it is now explicitly clear that the obligation applies with respect to both equipment and PPE (previously limited to emergency equipment).

Definitions

The New Code defines various pieces of PPE and expands the scope of applicability for some equipment.

• Hearing Protection Devices: The New Code defines "hearing protection device" as PPE worn to protect the wearer from damage to hearing due to exposure to noise. Beyond minor administrative amendments, Sections 221 and 222 of the New Code are identical regarding the requirements and specifications of hearing protection devices for workers.
• High Visibility Safety Apparel: The New Code provides a comprehensive definition of "high visibility safety apparel" as PPE that is occupational apparel capable of signaling the user's presence visually and intended to provide the user with conspicuity in hazardous situations under any light conditions and under illumination by vehicle headlights. The New Code requires designated signalers (Sections 191(2)-(3)), workers on foot and exposed to traffic (Sections 194(2)-(3)), and designated traffic controllers (Sections 194(4)-(5)) to wear high visibility safety apparel.
• Protective Headwear: The New Code defines "protective headwear" as PPE that protects the head. Beyond minor administrative amendments, Part 18 of the New Code, as well as the provisions pertaining to industrial and non-industrial rope access work, are identical regarding the requirements and specifications of protective headwear for workers.
• Respiratory Protective Equipment: The New Code defines "respiratory protective equipment" as PPE intended to protect the wearer from oxygen-deficient atmospheres or inhaling airborne harmful substances and includes self-containing breathing apparatus. Part 18 of the New Code outlines the requirements and specifications of respiratory protective equipment and is identical to the Current Code beyond removing some approved respiratory protective equipment.

Specifications, Certifications and Training

Pursuant to Section 7(1) of the Current Regulation, manufacturer's specifications and specifications certified by a professional engineer must be readily available to workers responsible for the work. This requirement has been moved to Section 15.1 of the New Code and expanded upon; as of December 1, 2021, specifications must be readily available to the workers, supervisors and other persons at the work site. There are other detailed changes on this particular topic and we encourage employers to review these revisions and the repeal of Section 15 of the Current Regulation with great care, as the concept of compliance with specifications, certifications and related equipment training is often the focus of serious incident investigations.

Emergency Response Plans

As per Section 116(c) of the New Code, emergency response plans must now include the identification of, location of and operational procedures for emergency equipment and PPE (previously limited to emergency equipment).

Joint Health and Safety Committees and Health and Safety Representatives

The New Act removes many of the prescriptive requirements governing JHSCs and HSRs. Some of the detail removed from the Current Act will now be found in Part 13 of the New Code, but most of the proposed changes introduce performance-based requirements to provide for greater flexibility.

Worker Membership Selection

Pursuant to Section 22 of the Current Act, the JHSC must consist of at least four persons, of whom at least half represent workers who are not associated with the management of the work site. The non-management workers must be appointed in accordance with the constitution of the union, or where no union exists, the workers must be selected by the workers they represent.

As of December 1, 2021, the JHSC worker membership selection requirements will be contained in the New Code. Section 196.1 of the New Code requires non-union workers to select worker members of a JHSC who represent non-union workers, and the applicable union must select worker members of a JHSC who represent unionized workers. An employer must determine how many worker members are needed to equitably represent any union at the work site and non-unionized workers and to address relevant occupational health and safety concerns. The employer must specify a reasonable time by which any union and any non-unionized workers must provide the employer with the names of the worker representatives. If the workers, or where applicable, the union representing workers, do not select workers for the committee, then the employer must select those worker members.

Co-Chairs

Consistent with Section 22(2) of the Current Act, Section 196.2 of the New Code requires a JHSC to have two co-chairs, one chosen by the persons representing the employer on the committee and the other chosen by the worker members on the committee.

Terms of Reference

Section 197 of the Current Code, which pertains to JHSC terms of reference, has been completely overhauled. As of December 1, 2021, an employer must ensure each JHSC develops written terms of reference:

• outlining the process to select co-chairs;
• outlining the process for selecting worker members to the committee to ensure worker members are representative of the workers for that employer;
• establishing a term of office for committee members;
• outlining the frequency for regular committee meetings and how meeting records will be maintained;
• outlining processes for conducting meetings, and forwarding health and safety concerns to the attention of the employer;
• establishing a process to replace a member during the member's term of office;
• establishing a dispute resolution process for when the committee cannot agree on a recommendation to the employer; and
• outlining processes to address circumstances where committee members are not fulfilling their duties.

This is a welcome change, as Section 197 of the New Code replaces many detailed processes previously contained in the Current Act and Part 13 of the Current Code, and offers employers the flexibility to establish committees in ways that best suit how the particular workplace operates.

Additional Duties

The government has repealed Section 198 of the Current Code, which required a JHSC to inspect each work site at least once each quarterly meeting to identify hazards that have not been controlled. However, under Section 13(6) of the New Act, the JHSC's duties include reviewing the employer's work site inspection documentation, so the JHSC will still have some involvement in work site inspections.

Special Meetings of JHSC

Under Section 198 of the New Code, the JHSC must convene a special meeting if requested to do so by an officer. This is consistent with Section 27(4) of the Current Act. However, unlike the Current Act, unless otherwise introduced by Terms of Reference, a co-chair of the JHSC will no longer have the ability to call a special meeting over allegedly urgent concerns at the work site without such a request being made by an officer.

Quorum

Consistent with Section 26(1) of the Current Act, Section 199 of the New Code specifies that a quorum of a JHSC is half of the members if worker members and members representing the employer are present and at least half of those present are worker members.

Posting Names of Committee Members or HSRs

Section 199.1 has been added to the New Code, which requires the employer to maintain a record of the names and contact information for the members of the JHSC or HSR and conspicuously post contact information for the JHSC or HSR at every work site where workers are represented by the committee or representative, or by another means as agreed to by the JHSC or HSR. This is similar to Section 23 of the Current Act. However, while this obligation applies to both the employer and the prime contractor under the Current Act, it will only apply to the employer under the New Code. Additionally, the flexibility to post contact information "by another means as agreed to by the JHSC or HSR" is new.

Special Meetings of Representatives

Section 199.2 has been added to the New Code, which permits a HSR to call a special meeting with an employer to deal with concerns at the work site. This is similar to Section 28(2) of the Current Act. However, under the Current Act, the HSR could also call a special meeting with the prime contractor, which is not provided for under the New Code.

Time Away for Committee or Representative Work and Entitlement to Pay

Section 199.3 has been added to the New Code, which specifies that a worker who is a member of a JHSC or who is a HSR is deemed to be at work during the time the worker is performing JHSC or HSR duties, or attending training in connection with these duties. This is consistent with Section 30(2) of the Current Act.

Duties of Employers, Contractors and Prime Contractors

Section 200 of the Current Code pertains to duties of employers, contractors and prime contractors with respect to the JHSC and HSR. Under the Current Code, the employer, contractor and prime contractor, if there is one, must:

• consult and cooperate with all JHSCs and all HSRs for their work sites to develop policies, procedures and codes of practice required by the Act, regulations and the Code;
• provide members of all JHSCs and all HSRs for their sites with reasonable opportunity to inform workers on matters affecting occupational health and safety;
• ensure that members of all JHSCs and all HSRs for their work sites are allowed to examine records, policies, plans, procedures, codes of practice, reports or manufacturer specifications that must be maintained under the Act, regulations and the Code; and
• distribute to all JHSCs and all HSRs for their work sites any information or documents addressed to the committee or representative as soon as reasonably practicable after the information or document is received by the employer, contractor or prime contractor, if there is one.

This has all been repealed. However, caution should be employed as certain of these obligations may have been captured elsewhere in the New Act or the New Code.

Training

Section 201 of the Current Code has been amended such that an employer must ensure that members of JHSCs or HSRs are trained in the roles and responsibilities of co-chairs and members on JHSCs and HSRs, the obligations of work site parties, and the rights of workers. As there is no longer a requirement for government-approved training courses or training providers, employers and workers have been afforded with more flexible and workplace-specific options for training. Additionally, the prescriptive requirement regarding the amount of time allowed for training has been removed.

Inspection of Work Site with Officer

Section 202 of the Current Code, which provided that an officer conducting an inspection of a work site must, where feasible, request the co-chair who represents the workers on the JHSC or HSR to be present at the inspection, has been repealed.

However, pursuant to section 15 of the New Act, when an officer inspects a work site, the officer may request any member of the JHSC, their designates or a HSR to be present at the inspection. This is similar, but not identical, to Section 25 of the Current Act.

Radiation Protection Legislation

Section 291 of the Current Code only outlines requirements for the prevention and protection of workers from radiation exposure. Alongside this provision, the provisions of the Radiation Protection Act and the Radiation Protection Regulation are now incorporated into Part 20 of the New Code, consolidating radiation health and safety requirements into one piece of legislation. As such, occupational health and safety officers will be responsible for the administration and enforcement of these provisions.

Mining

Non-Mining Blasting Operations and Blasters' Permits

The specific blasting provisions found in Part 2 of Current Regulation are now more logically consolidated in Part 33 (Explosives) of the New Code, specifically in Sections 468.1 to 468.7. There are no substantive amendments to these provisions, except that the ability to suspend and cancel the permit for a blaster now rests solely with the Director, as opposed to an officer or person and importantly, the limitation on suspension of a permit for a period not exceeding 72 hours (Section 19(2) of the Current Regulation) has been removed.

Mining Operations and Mining Certificates

The specific mining operations and mining certificate provisions found in Part 3 of the Current Regulation are now more logically consolidated in Part 36 (Mining) of the New Code, specifically in Sections 749.2 to 749.9. The general requirements for reporting mine or mine site incidents remain in the New Act. There do not appear to be substantive amendments to these provisions, except that the ability to suspend and cancel a mining certificate now rests solely with the Director, as opposed to an officer or person. Sections 24 and 25 of the Current Regulation regarding the establishment of a board of examiners for mining do not appear to have been carried through to the New Code.

Approvals

We applaud the government's decision to repeal the extremely onerous approval procedure that is in Section 43 of the Current Regulation.  The New Act addresses acceptances, allowances, approvals and inter-jurisdictional recognition process in a balanced manner that will help employers and others manage highly detailed health and safety compliance in a more streamlined fashion, while either maintaining or improving work site health and safety.

Conclusions

The incoming amendments outlined in the New Act and New Code are significant and will have a considerable impact on the workplace health and safety regime in Alberta. Employers will need to revisit their contracts, policies and procedures to ensure they comply with these new laws. We have previously written about the importance of monitoring the ever-changing occupational health and safety requirements in our May 12, 2020 insight, Maximizing Your Safety and Efficiency in a Trying Economic Environment.

Bennett Jones is at the forefront of occupational health and safety law in Canada and we are readily available to assist with all aspects of the impact of the New Act and New Code on your business and workplace.

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