Climate change and safety: treeplanters and wildfire smoke

A few weeks back, the Tyee ran a story on the effect of increasing levels of wildfire smoke on tree planter OHS. This story is interesting because it looks at the effect of climate change on worker safety.

There are several reasons why this particular hazard and worker group are worth examining:

• Intensity of exposure: Tree planters often work in close proximity to wildfires and their work is physically demanding (increasing respiration and heart rate). Consequently, they are likely to have one of the highest intensities of exposure to wildfire smoke.
• Duration of exposure: In addition to long working days, most tree planters live in camps (e.g., tents) and lack any respite from the smoke in their off hours. This means these workers have a much longer duration of exposure than, say, a worker who might face dust in the workplace but then go home to clean air at the end of the day.
• Lack of specific controls or OELs: There are no specific occupational exposure limits (OELs) for wildfire smoke and general OELs for dust were not designed with wildfire smoke (which has very tiny particles) in mind.
• Latency: Injuries due to inhalation often have long latency periods and murky causality, thus the link between the work exposure and the ill-health can be hard to see.
• Proxy for nonworkers: The exposures experienced by tree planters can be useful in predicting larger population effects caused by increased wildfire effects (essentially the dangerous working conditions experienced by these workers create a natural experiment).
• Compliance: PPE slows tree planting work. Tree planters are generally paid on piece-rate basis. This pay structure basically forces tree planters to trade off their own health against their need to earn an adequate income and almost certainly reduces compliance. Contractors also have production targets, which means they too have an incentive to trade worker safety for profit.

A notable take-away from the article is the complete lack of a regulatory response to the risk posed by wildfire smoke. WorkSafeBC acknowledges the risk but can’t be arsed to issue any directives. Alberta’s OHS minister couldn’t even be bothered to respond to the reporter. This likely reflects regulatory capture of regulators by the forestry industry.

By contrast, Oregon and California require air quality monitoring and the availability of respirators when air quality gets to a specific point. This doesn’t mean these controls are adequate, but they are at least something.

-- Bob Barnetson

Another worker dies, nothing much happens.

Yesterday, CBC reported that three companies had been charged in a November 2021 workplace death. The worker was testing a pipe when a valve broke and killed the worker. Among the notable parts of the story is that the employer failed to conduct a hazard assessment and failed to identify a hazard.

The effectiveness of the OHS system rests on employers identifying hazards. When an employer fails to do this rudimentary task, the rest of the system doesn’t work because unidentified hazards can’t be controlled and workers die as a result.\

Unfortunately, Alberta employers often don’t bother to identify hazards. A 2018 survey of 2000 Alberta workers found only 50% of their employers had hazard assessments. And only 59% regularly provided information about hazard-control strategies for at least some of the hazards workers faced.

So, now that OHS has filed charges almost two years after the event, what is likely to happen in this case? The rest of the CBC article talks about other fatalities and gives you a pretty good idea.

The employers’ lawyer(s) will likely stall some. A year or two from now, one of the employers will plead guilty to a single charge and pay a relatively small fine ($100-300k). In the meantime, it will be business as usual.

If you think this sounds like a pretty ineffective approach to protecting workers, you’d be right. The same study found that roughly 1 in 5 Alberta workers reported injuries (of varying degrees) each year and 1 in 11 received a disabling injury (where they could not do some or all of their job the next day).

Underlying ineffective enforcement is basically a lack of political will to punish employers to maiming and killing workers. Indeed, the UCP substantially weakened OHS laws during its first term. Not surprisingly, the rate of worker injury has risen under the UCP’s watch.

-- Bob Barnetson

Alberta's 2021 Injury and Fatality Report

Alberta released some injury-related reports in April. Here are the highlights from the 2021 Workplace Injury, Illness and Fatality Statistics report:

• A 12% increase in accepted injury claims (exclusive of COVID claims). 
• Youth (15-24) continue to have the highest adjusted disabling claim rate (but the lowest fatality rate (likely influenced by the importance in long-latency occupational diseases to overall fatality rates).
•  There were 135 fatalities accepted by the WCB, including 25 from COVID.

COVID-related claims accepted by the WCB totalled 6814 injuries and 25 deaths. The rules around compensability mean this is a significant undercounting of work-related COVID.

Table 3 (reproduced below) shows a pretty good summary. There was a significant drop in non-COVID injuries in 2020, which likely reflects the drop in employment during COVID (plus the crash in oil prices).

 


It is not clear to me what effect changes in the WCB legislation had on these numbers (I’d need to think a bit more about when the effect of those changes would start to show up).

Controlling for the size of the workforce (the rate per 100 person years worked) we see a drop in the rate of injury. As employment numbers and oil prices bounce back up in 2021, we see numbers and rates start to increase.

-- Bob Barnetson

UCP's record on labour issues

 

Alberta Views recent published an article I wrote about the UCP's record on labour issues. The article reprises and extends a chapter I wrote with Susan Cake and Jason Foster in a new book entitled Anger and Angst: Jason Kenney's Legacy and Alberta's Right (which is also worth a look).

The nub is basically that UCP labour policy can be best understood as an effort to shift the cost of labour from employers to workers by grinding wages and working conditions. The effect, particularly on and in Alberta's public-sector has been significant. Since the Alberta View's article is open access, I'll leave it for you to read more if you like.

-- Bob Barnetson

Workplace safety versus worker privacy

Employers often struggle to balance their interest in improving workplace safety with workers’ right to privacy. For example, the history of workplace drug and alcohol testing often turns on the circumstances under which is it appropriate for an employer to require a worker to submit to testing (e.g., post incident, suspicion of impairment, randomly).

Employers often assert (and behave as if) workplace safety considerations trump workers’ privacy rights. This is good rhetorical terrain for employers to argue from because it frames opponents of testing regimes as being opposed to (or at least not prioritizing) safety.

When there is an absence of evidence to support the efficacy of initiatives like testing (which is often the case), employers can revert to some version of ”better safe than sorry” as a rationale to justify their position. This rationale runs contrary to the generally acceptable proposition that they who make a claim must substantiate it.

I recently read a 2018 arbitration decision about cognitive testing for Edmonton transit drivers that was quite interesting. You can find the full decision on canlii.org under this reference:

Amalgamated Transit Union, Local No. 569 v Edmonton (City), 2018 CanLII 82319 (AB GAA)

The nub of the case (and I’m paraphrasing pretty liberally) is there had been two bus-related pedestrian fatalities and the government regulator required the city to implement a transit driver evaluation policy. The city’s response was to implement mandatory (1) road testing and (2) cognitive testing.

The cognitive testing included a computerized screening tool. If workers scored above a threshold on the tool, they were then suspended with pay and required to undergo medical evaluation. (There was no evidence that the two fatalities were related to cognitive impairment of the drivers.) The medical testing and release of information violated these workers’ privacy.

The grievance basically asserts that the city had no legal or factual basis for implementing (1) the mandatory screening and, for those who fail the screening, (2) the follow-on medical assessment. The union also argued the cognitive screening test, having been developed primarily to screen for cognition decay in older drivers, was not a valid test for an otherwise healthy population.

In the end, the arbitration panel ruled based upon the union’s argument around the testing being unreasonable and declined to address the (rather troubling) issue of the test’s validity and reliability. What makes this case interesting is that, while the matter awaited adjudication, the employer proceeded with the testing under the “work now, grieve later” principle and we actually have results about the efficacy of the testing.

The firm providing the testing predicted that, of the 1535 drivers tested, 1-2% would be suffering from cognitive impairment (so 15 to 31 drivers, roughly). At the time of the hearing, only one driver was confirmed as having cognitive impairment and a second driver’s status was undetermined (so the true rate of cognitive impairment was 0.12%, or one-tenth the rate the testing firm asserted). The screening tool sent 88 drivers for medical assessment, of whom the vast majority were false positives. (A small number of other drivers returned to work with modest work restrictions related to other medical conditions.)

This sort of outcome (where the proponents vastly over-state the true level of risk in order to push forward with testing) is not uncommon. Random drug testing is another example where, despite decades of effort, there is no good evidence that random testing reduces injuries. Certainly, we would expect a company that is selling testing to make claims that create the appearance that their product is valuable to potential clients. And, these kinds of circumstances are why, generally speaking, we expect those who make a claim to substantiate it.

It is also interesting to note the uneven application of the better safe than sorry principle by employers.

• When it is employees who bear the cost of an OHS intervention (i.e., have their privacy invaded), employers are happy to play by better safe than sorry and not demand high levels of proof. 
• When employers must bear the cost (e.g., face disrupted production or higher material costs) because workers have concerns about unsafe working conditions or materials, employers generally demand very high levels of proof before they will alter their processes. 

This existence of this double standard speaks to which (and whose) interests are prioritized in workplace regulation.

-- Bob Barnetson

AU’s ergo program symptomatic of organizational dysfunction

Almost 100% of staff at Athabasca University (AU) work from home, at least part of the time. This is up from about 50% prior to COVID. The shift to permanent home offices was partially motivated by the cost savings associated with shifting operating costs (e.g., office space and equipment, utilities) onto workers.

The sudden move to working at home in March of 2020 due to COVID resulted in significant concerns among workers about both the financial and ergonomic implications of home work. Three years later, AU has launched new, online ergonomic training for staff.

Essentially, staff have been told to take online training and figure out how to adjust their home workplaces to be ergonomically adequate by April 30th. A key question is whether AU will fund any necessary purchases to make a home office ergonomically adequate? The answer is, of course, no.

Will there be additional funding to support any needs identified as a result of this assessment?
No. All home-office-based team members have been provided with Home Office Support Funding. This included $1,000 in 2020 and another $1,000 in 2022. Team members will be provided with an additional $800 Evergreening Fund every 6 years.

It was certainly appropriate for AU to respond to shifting operating costs onto workers in 2020 with a small, taxable payment (which might have bought a desk and chair and lamp). The taxable 2022 payment of $1000 (or $800) was negotiated in lieu of a wage increase so was essentially self-funding by workers.

In both cases, that money has already been spent by most workers. For this reason, it is not available to resolve any current ergonomic issues. (This reflects that AU rolled out the training and payment in the wrong order.)

Overall, this initiative is pretty typical of AU:

• A long-standing problem is addressed belatedly and inadequately.
• The workers are made responsible for solving the employer’s problem (i.e., unsafe workplaces).
• The employer gaslights the workers about it, in this case by referencing financial assistance that is only available if you have a time machine.

So what are AU workers likely going to do? Some staff will take the training, either because they are rule followers or because they are being explicitly paid to do so (e.g., tutors). I expect the rest of staff won’t bother to take it or will take it but not implement many of the recommended changes because it will require them to spend their own money to solve an institutional problem.

This program (which is, at least superficially, a good idea) is a microcosm of how AU operates. Essentially, the administration “talks away” problems instead of addressing them and staff learn to tune out or superficially comply. The result is widespread distrust of leaders and staff disengagement.

The aftermath of the 2022 staff engagement survey results (released two weeks ago) pretty much mirrors this. Staff disengagement has been identified as such an issue it was added to the institutional threat register at last week's Board of Governor's meeting. That doesn't mean anything is being done to fix it, though.

Senior executives are heavily messaging that the results are “sobering” but not actually doing anything about it. This is the performative “talking away” of problems that fixes nothing. Staff are, of course, onto this strategy, with only 30% believing senior leaders will do anything, because successive executives have talked away problems for years and years:



Middle managers seem to be taking two approaches to the results. Some are earnestly (I think) asking for staff feedback. This ask is basically flopping because of the long-standing “big bosses who cried wolf” dynamic to problems. For example, in my meeting of people who are basically lead hands, there was just dead silence in response to the ask for feedback. Others middle managers are framing the results as a consequence of inadequate communications.

It is true that gaslighting and victim blaming are communications strategies that are inadequate. But, since this approach has gone on for most of a decade and intensified over time, it is likely this is an intentional strategy, not some sort of oopsie. Last week’s framing of engagement by the HR director as “good” because it encourages staff to work harder is essentially an admission that the employer doesn’t care about staff except as the means to an end.

For staff, disengagement (whether active or passive) is a very sensible response to a traumatizing workplace. The other response I’m seeing is people over-engaging, which is leading to burn out. This is pretty hard to watch, but perhaps some people need to hit rock bottom before they’ll change their behaviour. I know that I did.

-- Bob Barnetson

How OHS sentences are determined

Many labour-side practitioners assert that the financial penalties levied against employers that violate occupational health and safety rules are so low that they do not serve as a deterrent to future violations by the same or a different employer (basically, they are just the cost of doing business). In some jurisdictions, employers can be subject to modest tickets or administrative penalties for violations. Where an employer has done something serious, they can also be subject to prosecution under OHS legislation. 

Pleading or being found guilty can result in fines being assessed by the court within whatever range is set in the legislation. Section 48 of the Alberta’s OHS Act, for example, sets the maximum penalty for a first-time violation at $500,000 (plus a 20% victim surcharge) and/or not more than six months of imprisonment. (In theory, employers can also be charged under the Westray provisions of the Criminal Code, but that basically never happens. Similarly, jail time for an OHS prosecution is almost never imposed.)

There were 11 (or maybe 12, see below) convictions in Alberta under the OHS Act in 2022:

• Precision Trenching Inc pled guilty to a 2018 trench collapse fatality and paid a fine of $275k.
• Insituforms Technology Inc pled guilty to a 2019 serious injury and paid a fine of $100k.
• Emcom Services Inc pled guilty to a 2019 serious injury and was fined $86k. (This conviction appears twice on the list, but I think that is an error).
• Amyotte’s Plumbing & Heating Ltd pled guilty to a 2019 fatality and was fined $170k.
• Joseph Ogden pled guilty to a 2019 fatality and was fined $80k.
• Trentwood Ltd pled guilty to a 2020 fatality and was fined $150k.
• The Town of Picture Butte pled guilty to a 2020 serious incident and was ordered to pay $87k in creative sentencing.
• Kikino Metis Settlement pled guilty to a 2020 serious incident and was ordered to pay $8.5k in creative sentencing.
• McCann’s Building Movers Ltd pled guilty to a 2020 fatality and was fine $320k.
• Polytubes 2009 Inc pled guilty to a 2020 serious injury and were ordered to pay $100k in creative sentencing.
• Cross Borders Consulting Ltd pled guilty to a 2020 fatality and was fined $324k.

This is a pretty typical year in terms of numbers and fines. Often employers face multiple charges and, as we saw in 2022, plead out to a single violation and fine.

A recent Saskatchewan Court of King’s Bench sentencing decision following a workplace incident that left a worker paralyzed is helpful in understanding the factors used when the Court’s determine fine levels. The maximum fine available to the judge in Saskatchewan was $1.5 million. Paragraph 12 sets out the factors commonly used to assess penalties.

[10] R v Westfair Foods Ltd., 2005 SKPC 26, 263 Sask R 162 [Westfair Foods] is a seminal case in Saskatchewan for the sentencing of corporations for OHS violations causing injury. At paragraph 38, Whelan J. distilled the essential principles from the case law and academic works as follows:

i. The primary objective of regulatory offences is protection and in the context of occupational health and safety legislation, it is the protection in the workplace of the employee and the general public.

ii. The sentencing principle which best achieves this objective is deterrence and while deterrence may be regarded in its broadest sense and includes specific deterrence, general deterrence is a paramount consideration.

iii. There are numerous factors, which may be taken into account and the weight attributed to each will depend upon the circumstances of each case. The following is not an exhaustive list of factors that may be considered, but they are likely relevant to most occupational health and safety offences:

• the size of the business, including the number of employees, the number of physical locations, its organizational sophistication, and the extent of its activity in the industry or community;
• the scope of the economic activity in issue - the value or magnitude of the venture and any connection between profit and the illegal action;
• the gravity of the offence including the actual and potential harm to the employee and/or the public;
• the degree of risk and extent of the danger and its foreseeability;
• the maximum penalty prescribed by statute;
• the range of fines in the jurisdiction for similar offenders in similar circumstances;
• the ability to pay or potential impact of the fine on the employer's business;
• past diligence in complying with or surpassing industry standards;
• previous offences;
• the degree of fault (culpability) or negligence of the employer;
• the contributory negligence of another party;
• the number of breaches - were they isolated or continued over time;
• employer's response - reparations to victim or family - measures taken and expense incurred so as to prevent a re-occurrence or continued illegal activity, and;
• a prompt admission of responsibility and timely guilty plea.

This decision also helpfully discusses the law on sentencing when government amend legislation to raise fine levels. Paragraph 18 quotes the Nova Scotia Supreme Court’s decision in Hoyeck:

[25] … For Courts to give "the legislative intent its full effect" we cannot be bound to prior sentencing ranges that do not reflect the Legislature's view of the gravity of the offence and society's increased understanding of the severity of the harm arising from the offence (see paras. 108-109). An upward departure from prior precedents is appropriate to arrive at a proportionate sentence.

As set out in Paragraphs 24 and 25, the Saskatchewan judge fined King Stud $126k (effectively one year of net proceeds) to be paid of a time period to be determine later. The range of fines

[24] A total penalty (fine and surcharge) of roughly one year’s net proceeds to the principals of the corporation, with time given to pay, is a proper balancing of all of the factors in this case - including the fact that, other than its early guilty plea, virtually none of the Westfair Foods factors are in King Stud’s favour, and some of them (such as its compliance record before and after this incident) are strongly against it.

[25] Such a fine will be a very significant penalty to the principals of the corporation but should not be so debilitating as to cause the collapse of King Stud. Will it be extremely uncomfortable for them for several years? Undoubtedly; but not nearly so uncomfortable as the rest of Dawson Block’s life will be for him, as a result of their actions or inaction.

It’s hard to know if this fine will cause the employer (which had an appalling safety record before this entirely foreseeable injury) to alter its behaviour or serve as a deterrent to other employers. I’m pretty skeptical. These were bad actors who got busted after the fact for yet another fall protection violation.

An interesting part of the discussion was the court’s efforts to set the fine at a level that served as a deterrent but was not so high that the owners of the corporation just walked away from the corporation (and thus the fine goes unpaid). The impact of limited liability corporations to shield owner-operators from some or all of the consequences of the corporation’s actions is a recurring bugbear for enforcing employment laws.

Perhaps, rather than further raising fine maximums (which seems to have a modest impact on actual fine levels) and perhaps fine minimums, legislatures might consider piercing the corporate veil to hold directors personally liable for unpaid OHS fines?

-- Bob Barnetson

More on COVID and OHS

Back in September, I blogged about how Alberta’s OHS inspectors seemed unwilling to address uncontrolled aerosol hazards in a workplace. My suspicion was that they and public-sector employers were facing political pressure from the government to ignore the risk posed by COVID to workers.

In October, an Alberta court ruled that the Minister of Education’s direction to school boards banning mandatory masking was ultra vires (she would need to enact a regulation). A month later, the UCP cabinet passed a regulation banning masking mandates as well as barring schools from switching to online-only classes. 

At the time this regulation was passed, schools were seeing unprecedented levels of staff and student absenteeism due to illness (due to a combination of COVID, RSV, and influenza—all airborne illnesses). Barring masking and online classes removed two very effective ways employers can control the spread of these diseases and protect workers (and children) from serious (and potentially fatal) illness.

Yesterday, Premier Danielle Smith announced that MLAs are calling organizations that are in receipt of government funding and asking them to rescind mandatory vaccine mandates. (At this point, vaccination provides modest protection against contracting COVID but does a good job attenuating the consequences of getting COVID. This still makes vaccination a useful component of any hazard--control strategy.).

According to CBC, Smith said:

"For instance, the Arctic Winter Games wanted $1.2 million from us to support their effort and they were discriminating against the athletes, telling them they had to be vaccinated," Smith said at a news conference in Edmonton on Monday.

"So we asked them if they would reconsider their vaccination policy in the light of new evidence and they did."

There was no indication what “new evidence” was offered to this organization. And, while no formal policy linking receipt of funding to rescinding vaccine mandates appears to exist (yet), the implicit threat to current and future funding is pretty clear.

At this point, I think the data is clear that public-sector employers have been told to (and, in some cases, legally enjoined from) taking the steps necessary to control occupational diseases. The government is also likely interfering in the enforcement of OHS laws (although the evidence here is more anecdotal). Not surprisingly, the result is a high level of avoidable work-related illness:



The data in the table above understates COVID claims in the public-sector because teachers are, for the most part, outside of the ambit of workers’ compensation legislation in Alberta.

What can workers do? Well, worker can wear masks, although single-person masking is much less effective than group masking. Workers might also get together and agree to group masking in the absence of employer support.

Work-refusal are also an option. But, since OHS seems unwilling to engage with aerosol hazards, refusals are likely to only work if they are carried out by a group that is prepared to risk sanction for engaging in an illegal strike. I see no appetite for supporting this kind of job action in Alberta’s labour movement.

Finally, workers can remember that the UCP was happy to sacrifice their health and their lives (and the health and lives of their children) in order to cater to anti-vax voters and cast their ballot in the next election with that in mind.

-- Bob Barnetson

Alberta KB decision on government edicts prohibiting mandatory masking in workplaces

Recently, I blogged about how the UCP’s changes to joint health and safety committees has basically rendered them ineffective. I used the elimination of masking mandates at Athabasca University (and other PSEs) as an example of how the internal responsibility system and the external responsibility system were failing workers.

Of note was the direction given PSE institutions by the Minister of Advanced Education to drop masking requirements. My position was that the Minister did not have the authority to order institutions to not comply with the OHS Act (which obligates them to take all reasonably practicable steps to protect workers from occupational hazards, such as COVID).

Yesterday, a Court of King’s Bench decision dropped that is relevant. In it, the judge notes that the Minister of Education, who prohibited school boards from requiring mandatory masking, had overstepped her authority. The nub of it was that the Minister needed to issue such direction in the form of a regulation, rather than just make a statement. Absent a regulation, the Education Act empowers school boards to make their own policies.

Presumably, PSE boards of governors would be in the same situation as school boards since section 59 of the Post-Secondary Learning Act (which addresses the power of PSE boards) is very similar to the language in the Education Act. That is to say, boards are not enjoined from implementing mandatory masking (or vaccination) policies simply because the Minister of Advanced Education said so.

If cabinet enacts a regulation (under the Regulations Act) enjoining boards from implementing masking policies, we them to consider whether such a regulation trumps the requirement set out in section 3 of the Occupational Health and Safety Act that boards, as employers, must take all reasonably practicable steps to protect the health and safety of workers. This includes an obligation, under section 9 of the OHS Code to control hazards.

This is all mostly an academic matter for two reasons. 

First, COVID-related policies in Alberta PSEs seem to fall clearly into the “minimizer” camp and decisions about protections are simply left to individuals. Basically, there is no political will among campus administrators to protect workers or students from COVID. 

Individualizing OHS issues (e.g., “you can wear a mask if you like”) ignore that masking is most effective when it is uniformly adopted. This makes intuitive sense: if everyone masks, we have two layers of protection against aerosol transmission versus one layer under the current "wild west" policy approach. This approach also ignores that ventilation (something only an employer can address) can reduce transmission.

Second, as I wrote about in September, Alberta’s OHS officers seem unwilling to engage with the hazard of aerosol transmission. This seems like an enormous dereliction of duty given Alberta’s workplace COVID stats (the screen cap below is from October 28, 2022--note the sectoral distribution of COVID claims...). Clearly COVID is a serious workplace hazard in Alberta. The only sector that seems to still recognize that is health care.



-- Bob Barnetson

Reflections on the efficacy of joint committees during COVID

 As Labour Day rolls around, I’ve been giving some thought to the two-and-half years I spent as a worker rep on Athabasca University’s joint health and safety committee (JHSC). While the employer had long had a JHSC, it was effectively non-functional until the government changed the rules to make JHSCs mandatory (which better empowered the worker reps). 

I say non-functional because workplaces hadn’t been inspected for years, there were dozens and dozens of unidentified and uncontrolled hazards, and staff did not receive basic OHS training (among other deficiencies) The single biggest OHS issue during my time on the committee was, not surprisingly, COVID. 

Early COVID response

When I raised the issue of COVID with the committee in early 2020 (before the pandemic arrived in Alberta), I basically got laughed out of the room by the employer reps and no action was taken. Some worker reps had their union pressure the employer to act (including transitioning to working from home, suspending travel and eliminating the sick note requirement). It also published a blog to alert workers to things they could do in the absence of an institutional response. 

This approach is pretty in keeping with what we know about the most effective tactics worker reps can adopt to get achieve change through JHSCs (which can only make recommendations). The employer basically adopted the union’s recommendations a week later and AU transitioned to working from home.

Transitioning to Working from Home

This transition to working from home was not without its difficulties, including several OHS issues. These included serious ergonomic issues as staff were now working from wherever they could find space in their homes and many were using small laptop computers, sometimes with inadequate internet service. These issues lingered unattended for months. 

There was also a significant workload issue as certain institutional processes were not easily adaptable to online delivery coupled with a huge surge in enrollments. These issues were essentially left to individual staff members to sort out and numerous staff reported very high working hours and rapid burnout.

Workload problems were compounded by the departure of 53 staff (5% or so) who had taken a buyout option, overall heightened stress due to the pandemic disruption (including school and daycare closures), and social isolation. All of these issues were left unattended for long periods of time.

The union continued to work with its members to identify issues the university would need to address when it re-opened. As it happens, AU did not ever return to in-person working and the university used the two-years to slowly advance its plan to eliminate on-site work entirely (including closing two of its course campuses and classifying most of its staff at home-based workers). 

Aerosol spread and hazard protocols

During COVID it became clear that the main method of transmission of the virus was through aerosol spread (although transmission by touching and droplets was also possible). Very loosely speaking, aerosol spread basically means the virus hitches a ride from an infected person to others on water molecules that an infected person exhales. The molecules with the virus can then be inhaled by people in the surrounding area. If you inhale enough of the virus, you too can become infected. This is a bigger issue in enclosed spaces than outdoors because virus-laden molecules typically dissipate faster and further outdoors.

The easiest way to understand aerosol spread is to think of it as farting. When you fart, the smelly particles are initially concentrated near the “farter”. But, overtime, the particles spread throughout the room and everyone can smell it. Simply being 6 feet apart (a common COVID protocol to prevent droplet spread from a sneeze or cough) does not protect from aerosol spread. If Travis “farts” and Stacey is 8 feet away across the room, Stacey is eventually going to smell it, right? Same idea with aerosol spread of COVID. The longer you are in close proximity to someone “farting” COVID, the higher the concentration of the virus-laden molecules, and the greater the risk of contracting COVID.

For this reason, effective hazard-control protocols for COVID include not working in enclosed spaces with other people. No exposure means no risk of transmission. If you are sharing spaces, other controls include enhanced ventilation (to reduce the concentration of the virus in the air) and masking. Masking prevents the virus from getting into the air (concentration is lower). And it also prevents someone from inhaling as many particles (which reduces the risk of catching COVID). Vaccination does not seem to control spread very much with Omnicron (so it is not really an effective control strategy); its primary value seems to be reduced severity of the disease.

Re-opening and COVID protocols

In September of 2021, government changes that gutted the effectiveness of JHSCs came into effect. You could literally see the energy go out of the JHSC as the tools the worker members used to keep the employer attentive to its OHS obligations effectively disappeared (e.g., there is no longer any requirement for workplace inspections).

In February of 2022, Minister of Advanced Education Demetrios Nicolaides directed all PSEs to end masking and vaccination protections. Directing post-secondary institutions to end mandatory masking eliminated one of the most effective controls on COVID transmission and placed post-secondary workers at risk of COVID. It also forced institutions to violate the OHS Act because they were no longer controlling workers’ exposure to COVID to the degree reasonably practicable. The Minister of Advanced Education has no authority to direct PSEs to act in this way or to waive the OHS obligations.

In May of 2022, Athabasca University altered its COVID protocols (presumably in response to the Minister’s direction). While most staff were expected to continue working from home due to the danger of infection, those staff who were on campus were no longer required to wear masks. This announcement basically says “it is too dangerous for you to come to work but, if you are onsite, don’t worry about wearing a mask”. This contradiction was so stark and evident that staff openly mocked it. It also dramatically increased the risk of aerosol transmission of COVID in the workplace.

The university’s Joint Health and Safety Committee was not consulted about this change. A review of Athabasca University’s hazard assessment revealed no consideration of aerosol transmission or controls. When this was brought to the university’s attention with a request to reinstate masking on campus, these concerns were dismissed and COVID control were further relaxed!

OHS Complaint and Inaction

Canada’s OHS system makes workers and employers jointly responsible for identifying and controlling hazards (the internal responsibility system). When this system fails, workers can file a complaint with government OHS inspectors (the external responsibility system). The existence of government oversight reflects that disputes about hazard identification and control can arise, sometimes via an innocent error and sometimes via a deliberate decision by the employer.

As worker co-chair, I filed an OHS complaint about the lack of controls around the aerosol spread of COVID (this is is how the system works). OHS investigated (without any discussion with workers) and declined to take action. 

When I finally got to speak with the officer to find out what she’d decided (because there is no report-back system and you have to say certain magical words to get the officer to call you back), her explanation of inaction was:

1. The employer did not identify aerosol spread on its hazard assessment and she could not force them to add it on, and
2. She could not direct the employer to implement masking (which was explicitly noted in my complaint was NOT my request—I just wanted direction to the employer to develop a control strategy) in the absence of direction by the Chief Medical Officer of Health (CMOH). 

She also noted that she did not see many workers sharing spaces and that they were seated six feet apart. The OHS officer’s explanation for her inaction was defective in a number of ways:

1. An employer cannot evade controlling a hazard simply by leaving it off a hazard assessment. Allowing this kind of evasion opens the door to employers ignoring all hazards by simply leaving them off the hazard assessment (like come on!). The OHS officer could well have identified the hazard the employer missed and directed the employer to develop a control strategy (which was my explicit request).
2. The presence or absence of masking guidelines by the CMOH does not limit the ability of OHS officers to direct employer to develop a control strategy for a hazard. Masking is the obvious control, but the employer could also have improved ventilation or prohibited shared spaces. What is likely going on here is that OHS officers have been directed (or perceive themselves to be directed) not to require employers to implement control for the aerosol spread of COVID because of the government’s decision to let’er rip.
3. The assertion that being six feet apart was an adequate control confuses controls for droplet spread with controls for aerosol spread. I could not have been clearer about this in my complaint. This raises questions about competence in my view.
4. The absence of many workers working in close proximity is basically saying “well, not too many workers are at risk…”. The OHS Act and Code does not contain a threshold of injury or death that is required before an employer must take action.

The upshot is that both the internal and external enforcement system failed. There is no appeal of the OHS decisions available because workers can only appeal an order, not the absence of an order. About the only bright spot here was that AU was intent on keeping staff off campus while it completed its transition to a near virtual working environment (i.e., 95% of staff working from home full time).

Surprise Re-opening
Over the summer of 2022, AU embroiled itself in a stupid and public fight with the provincial government of AU’s long-pterm efforts to reduce the number of jobs in the local community. As a part of AU’s efforts to resolve this dispute (which imperiled institutional funding), AU announced on August 30 that the remaining two campuses would be open effective September 6. 

As part of the surprise re-opening announcement, new COVID protocols were announced. Basically, they amount to extra cleaning (to address touch spread) and staying home when sick, which is ineffective since (1) COVID carriers are contagious before being symptomatic, and (2) many COVID carriers are asymptomatic. There are no controls for droplet or aerosol spread. Staff are allowed to voluntarily wear masks if they want:

AU no longer mandates wearing masks unless a hazard assessment dictates one is needed; however, we support you wearing a mask if you want to.

This approach individualizes responsibility for preventing the spread of COVID. It is just straight-up negligent because of the lack of droplet and aerosol controls. But the absence of any will by the government to enforce the OHS law means the employer can basically do whatever it wants.

Staff have little recourse except to (1) wear their own mask (the efficacy of which will be reduced because masking works best when everyone does it) or (2) try to avoid working on site if possible. Work refusals are unlikely to be effective since OHS has already refused to address aerosol spread and workers can choose to wear their own mask.

The only real option is for one of AU’s unions to file a grievance that AU is failing to address its obligation to provide a safe and healthy workplace under the OHS Act. That will take literally years to reach resolution and AU will likely use the OHS officer’s decision not to issue an order and a defence. Another option is for the unions to organize some kind of illegal walk out (an outcome that I judge to be unlikely).

Upshot

The recent changes to the OHS Act and Code have rendered JHSCs largely useless (which was likely the intent). The government’s political decision to eliminate COVID protections have also rendered the external OHS system ineffective. Together, these factors will create a significant amount of unnecessary ill health (potentially with lifelong consequences). As an OHS researcher and practitioner, I gotta say, this just makes me despair and very happy that I'm close to retirement.

-- Bob Barnetson

Alberta Labour's 2021/22 Annual Report

At the end of June, the government of Alberta dropped the annual reports for all ministries for the year ending March 31, 2022. The Labour report provides a snap-shot of government enforcement of labour laws as well as a hint at some of the outcomes. What the report addresses (and what it omits) is interesting.

For example, last year, the annual report noted that the government was sitting on a report of the minimum wage commission (struck in 2019, reporting in early 2020), The expectation was that this report recommended expanding the existing two-tiered minimum wage and that the government would use this as a pretext for reimplementing a lower wage for some servers.

That report was never released (as far as I can tell). This year, there is literally no mention of the minimum wage. Perhaps the government has given up on the idea given the struggle faced by employers to recruit servers? This, in turn, suggests that the existing minimum wage (stagnant since 2018) may be inadequate.

Or maybe, with three Labour ministers in a year, each worse than the last, the department just lost track of this issue? Anyhow, let's have a look at the various regulatory areas the government reports on.

Employment Standards

Employment standards set out the minimum terms and conditions of work. If your employer screws you, you can file a complaint. Over time, complaint numbers have dropped significantly.



There is, once again, no concrete explanation for this drop. Many things can affect complaint volume, including the number of workers and their expectation that complaining will be beneficial (e.g., result in a net gain, not result in retaliation). A 41.9% reduction in complaints since 2016/17 is pretty significant, especially since employment numbers rebounded during 2021/22.

Overall inquiries by Albertans about Employment Standards are also down. There were 131,189 phone and email inquiries in 2019/20 and only 70,826 in 20221/22 (a 46.0% reduction). Again, no compelling explanation for this change is offered. One possibility is that Alberta workers are decreasingly seeing Employment Standards as a viable way to enforce their rights. The drop since the UCP came to power is particularly striking.

There was an increase in Employment Standards enforcement this year. Instead of one administrative penalty, Alberta issued three penalties, the largest being $1500. The lack of consequences for noncompliance (beyond maybe having to pay some or all of what an employer should have paid in the first place) not only makes Alberta’s Employment Standards laws pretty toothless, but, in fact, economically incentivizes employers to cheat workers because they will likely get away with it.

Occupational Health and Safety

Alberta’s OHS system is designed to reduce workplace injuries and fatalities by educating employers and workers about safe work practices, conducting inspections to ensure compliance, and issuing orders and penalties when employers fail to operate safely.



The bump in inspections in 2020/21 was due almost entirely to additional COVID-related inspections and numbers seem to have returned to historical numbers. Almost 12,000 inspections seems like a lot of inspections, but we need to consider the context.

There were about 155,000 employers registered with the WCB. That undercounts total employers but whatever—this is back of napkin work. If we use 155,000 as a rough proxy for total employers and there were 11,798 inspections, we’re (roughly speaking), looking at a workplace being inspected once every 13 years.

If you did something more fine-grained (e.g., bigger employer pool; controlled for employers getting inspected more than once in a year), that telescopes the inspection cycle out some (maybe once per 15 years, maybe longer). The point, though, is that most worksites will effectively never get inspected.

If workplaces do get inspected, what happens? Mostly likely, if there are violations found, employers just get ordered to remedy them. But the number of compliance orders has dropped by about half since 2018/19 (the last full year of the ND government).



OHS almost never uses the enforcement tools available to it. OHS tickets dropped from 479 tickets in 2018/19 (again, the last year of the NDP government) to 32 this past year (a 93.4% drop). Of the 32 tickets issued in 2021/22, nine went to employers while the rest went to supervisors or workers. The largest ticket to an employer was $575 while the largest ticket to a worker was $230. These values have not changed in recent memory

Interestingly, the number and value of administrative penalties went up significantly this year, especially in dollar value. I don’t know what explains this. Only 11 charges were laid under the OHS Act, compared to 17 the previous year. Fines from prosecutions remained steady at $1.9m, with $1.2m being paid in the form of creative sentences (e.g., donations to community groups).

Effectiveness of Injury Prevention

So is this approach to injury prevention effective? One way to measure prevention effectiveness is to look at injury outcomes (particularly injury rates per 100 person-years worked) over time. Using a rate controls for fluctuations in the population over time and allow us to see patterns.

Alberta uses two main injury rates: lost-time claims and disabling injuries.

• Lost-time claims are accepted are injuries that required time off work beyond the date of injury. These are usually the most serious kinds of injuries. 
• Disabling injuries are accepted injury claims that required time off or modified work duties. 

Both rates are subject to under-reporting issues (i.e., employers pressure workers not to report). Both rates have climbed over time. While, yes, correlation is not causation, rising injury rates is highly suggestive that Alberta’s approach to injury-prevention (particularly declining consequences for operating unsafe workplaces) is not effective.



The government notes that COVID played a significant role in rising disabling injury rates, If COVID-related claims are excluded, the DI rate would be 2.32 in 2020/21 and 2.46 in 2021/22.

Labour Relations

The Alberta Labour Relations Board (ALRB) administers and adjudicates applications and complaints about labour relations. The most interesting datapoint in the annual report is the number of certification applications (i.e., when a union applies to represent a group of workers).

In 2017, the ND government made it easier for workers to unionize by allowing card-check certification. Like every other jurisdiction where this change has been implemented, unionizing efforts increased significantly (because employers are deprived of the opportunity to meddle in the workers’ choice). In 2019, the UCP removed card check and, not surprisingly, certification dropped significantly. There are some confounding factors here (lag effects, COVID in 2020 and rising interest in unions in 2021) that we can’t control for, but that pattern is plain enough.



There are also a couple of interesting things tucked away in the details. There has been a dramatic increase in the number of days it takes for an application to get to hearing. This matters because delay usually benefits one side (almost always the employer).

The Board also continues to lag in rendering a decision in a timely manner. Again, delay tends to benefit employers.



This is partly explained as a function of writing time lost to additional administrative demands related to virtual hearings.

Conclusion

Overall, the administrative performance of Alberta’s labour law regime has declined over time, particularly since the UCP took office. Particularly worrying is the increase in injuries and the decline in certification applications. The underlying issue likely reflects policy directions and/or funding reductions enacted by the UCP.

-- Bob Barnetson

2020 national work-related fatality and injury stats

Sean Tucker and Anya Keefe from the University of Regina have released their annual report on workplace fatalities and injuries. This year’s report rolls up the 2020 data but also includes a section on COVID-related injuries and fatalities from 2020 and 2021.

The nub of the report is that, nationally in 2020:

• There were 924 accepted WCB claims for fatalities, with about two-thirds being caused by occupationally-related diseases.
• There were also 254,000 accepted claims for lost-time injuries.

Specific to Alberta in 2020:

• Among provinces, Alberta had the second highest five-year average injury fatality rate, although there was a slight decline noted in 2020’s injury fatality rate.
• Among provinces, Alberta had the third highest five-year average disease fatality rate, although there was an increase noted in 2020’s disease fatality rate.
• Among provinces, Alberta had one of the lowest five-year average lost-time claim rates, although there was a slight increase noted in 2020’s lost-time claim rate.

I have nicked the relevant graphs from the report:

Looking at COVID claims:

Alberta had the second highest number of COVID-related fatality claims accepted (31) in 2021.

• Alberta had the third highest level of COVID-related injury claims accepted (7846) on 2021. There were 4800 accepted in 2020.

Alberta seems to be performing markedly worse than BC (despite BC’s slightly higher population). That said, it is a bit hard to know what to make of COVID claims data at this point because they may be affected by WCB policies as much as anything else.

-- Bob Barnetson