A new Occupational Health and Safety Act has been introduced by Alberta’s Legislature that will come into effect on Proclamation.[1]
Once it is proclaimed into force, the new Act will repeal the current Occupational Health and Safety Act, SA 2017 c. O-2.1 (“Current Act”). The new act will be cited as the Occupational Health and Safety Act, SA 2020, c O-2.2 (“New Act”).
This article focuses on upcoming changes to the provisions regarding workers’ work refusals.
Work Refusals
Although workers will still have the right to refuse work under the New Act, the description of the type of concern that justifies such refusal will change.
In order to refuse work under the New Act, a worker must believe “on reasonable grounds” that there is an “undue hazard” at the work site,[2] rather than a “dangerous condition,” which is the term used in the Current Act.
An “undue hazard” will be defined to include “a hazard that poses a serious and immediate threat to the health and safety of a person.”[3]
The New Act will change the process of addressing a worker’s refusal in the following ways:[4]
- Although an employer will still be obligated to inspect the alleged undue hazard immediately, there will be no obligation to include the worker, a member of the joint work site health and safety committee, a health and safety representative, or another worker in the inspection process.
- Under the Current Act, after the employer has determined that the work does not constitute a danger to health and safety, the employer must still inform the alternate employee, in writing, that the work he or she has been assigned to has been refused by somebody else and the reasons for that person’s refusal.[5]
- Under the New Act, however, the communication requirements will be different. Under the New Act, after the employer determines that the work does not constitute an undue hazard to health and safety, the employer will prepare a written report regarding its inspection and any action taken. The employer will provide a copy of the report to the worker who refused the work. If the worker who receives the report is of the opinion that an undue hazard still exists, the worker may notify an Occupational Health and Safety (“OHS”) officer. If the employer is made aware that a notification to an OHS officer was made, the employer will then be required to tell any worker assigned to do the work, in writing, of the first worker’s refusal, the reasons for the refusal, and the employer’s reasons for concluding that an undue hazard is not present.[6] It appears that this obligation to inform the second worker would only be triggered if the first worker had reviewed the employer’s report and also made a further report to an OHS officer disputing the results of the employer’s report.
- Under the Current Act, workers cannot be subject to “discriminatory action” for refusing to perform work. The current definition of discriminatory action is wide-ranging:[7]
“discriminatory action” is “any action or threat of action by a person that does or would adversely affect a worker with respect to any terms or conditions of employment or opportunity for promotion, and includes termination, layoff, suspension, demotion or transfer of a worker, discontinuation or elimination of a job, change of a job location, reduction in wages, change in hours of work, reprimand, coercion, intimidation or the imposition of any discipline or other penalty.”[8]
- Under the New Act, employers will be prohibited from taking “disciplinary action” against workers who have refused work, but the definition of “disciplinary action” will be more general:
“disciplinary action” is “any action or threat of action that does or would adversely affect a worker with respect to any terms or conditions of employment.”[9]
Employers are advised to review their current policies for work refusals to ensure that they meet all requirements under the Current Act, which is still in force. However, now is a great time to also consider what changes will be required to organizations’ health and safety policies, including the process for addressing work refusals, in light of the New Act.
[1] The Occupational Health and Safety Act, SA 2020, c O-2.2 [New Act] is awaiting Proclamation at the time of writing. It was introduced as Schedule 2 of Bill 47, Ensuring Safety and Cutting Red Tape Act, 2020, which received Royal Assent on December 9, 2020 and became SA 2020, c 32 (the “Bill”). Section 2 of the Bill reads as follows: “The Occupational Health and Safety Act as set out in Schedule 2 is enacted and may be cited as chapter O-2.2 of the Statutes of Alberta, 2020”. Once the New Act comes into force upon Proclamation, it will repeal the current Occupational Health and Safety Act, SA 2017 c. O-2.1, per section 77 and 78 of the New Act.
[2] New Act, s.17(2).
[3] New Act at s. 17(1).
[4] New Act at s. 17. Note that the provisions regarding work refusals are found in section 31 and following of the Current Act, cited below.
[5] Occupational Health and Safety Act, SA 2017, c O-2.1 [Current Act] at s. 31(7).
[6] New Act at s. 17(14).
[7] Current Act at s. 35(f).
[8] Current Act at s. 1(m).
[9] New Act at s. 1(j).
