Alberta Labour 2023 Annual Report

Alberta has released its 2023 annual report for the part of the government that was at one time called Labour and that relate to Albertans being safe and treated fairly in the workplace.

Fairness at Work Declines

The number of employment standards complaints filed were up by about a third in 2022/23. Complaints tend to reflect a fraction of overall violations; most workers don’t bother reporting things like wage theft.



This is an interesting reversal of a long-term decline in employment standards complaints.



Notably, the time to begin an investigation tripled and the time to resolve a complaint doubled. This has long been a bugbear in the employment standards system. The report asserts this reflects increasing volume and complexity.

The number of complaints investigated with signs of human trafficking jumped from 102 in 2021/22 to 208 in 20223/23.

The number of administrative penalties issued to employers dropped from 3 in 2021/22 to zero in 2022/23.

Safety: Losing the Will to Enforce

Worksite inspections plus re-inspections totalled 13,717 in 2023/23, down 12% from 15,569 in 2021/22. If you look later in the report for some context, this is about 6% fewer inspections/re-inspections than in 2018/19 (14,590), which was the last full year when the NDs were in power. At this rate, the inspection cycle is theoretically about once every 15 years (give or take).



About 80% of inspections were the results of complaints while the remaining 20% were targeting industries with safety problems. There were 1207 proactive inspections in 2022/23 resulting in 1725 orders issued. This is down from 2021/22, with 2100 inspections and 2548 orders. I couldn't find any historical data in this to provide context.

The number of investigations (e.g., of injuries) dropped by 60%, from 2245 in 2018/19 to 888 in 2022/23.

Orders written were up slightly over 2021/22 to 9099. This may be good (more enforcement) or may be bad (more violations occuring)—hard to say. If you look at 2018/19, there were 16,680 orders issued.

Ticketing of violators was down. There were 27 tickets with a total value of $11,280 issued in 2022/23. This is slightly fewer than in 2021/22 (32 tickets, $11,500). This reporting leaves out important context. If you look at 2018/19, there were 479 tickets issued.

Administrative penalties were also down. There were 17 penalties worth $62,025 issued in 2022/23. This is notably fewer than in 2021/22 (37, $314,250).

Convictions were also down, with 2022/23 seeing $1,740,750 in fines assessed. This is down from $1,919,000 in 2021/22. There was no reporting of the number of convictions but a hand count suggests the number is stable the last few years at around (hand-waggle) 10 per year, down from more than 20 in 2018/19.

Injury Rates are Up: Yeah, it’s mostly COVID.

The lost-time claim rate rose for at least the seventh straight year. Much, but not all, of this increase is due to COVID-19 injuries.



The disabling injury rate (lost-time plus modified work) is also up. Again, much but not all of the increase is due to COVID injuries.



The absence of meaningful government protocols related to aerosol spread put responsibility for these COVID-related increases squarely on the shoulders of government.

Interestingly, the absolute number of accepted fatalities is down to 120 (from 136). There is no real analysis of that change. It could be the result of changes in the workforce composition. It could also just be random variation (small numbers tends to be swingy).

Analysis

Overall, it looks like the government continues to lose the will and/or capacity to meaningfully enforce workplace safety rules under the UCP. Not surprisingly, the rate of injury has risen, likely because workplaces are more dangerous.

There has also been an uptick in complaints about employment standards (basically wage theft). This could be caused by more workers knowing to and being willing to come forward. I’d guess, though, that this reflects employers knowing it is open-season on workers under the UCP and, thus, stealing wages more frequently.

-- 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

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

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

More data on underreporting of workplace injuries in Ontario

The Institute for Work and Health has released results of a new study that matches emergency room visit records with workers' compensation data. In theory, all work-related injuries requiring medical treatment should be reported to Ontario's WSIB to avoid employers transferring the cost of treating workplace injuries onto the public health-care system.

The study finds that 35% to 40% of ER visits for workplace injuries were not reported to the WSIB from 2004 to 2017. This is broadly consistent with other data on under-reporting, which finds 40% to 60% of work-related injuries are not reported. 

Of the cases reported by health care professionals, 15% are not followed by workers (who should file a worker report). Further, there was a big drop in reporting beginning in 2008.

This study further demonstrates that workers' compensation injury data underreports the true level of workplace injury, even in the case of serious injuries. This raises questions about the utility of this data to assess and guide injury-prevention work. It also suggests significant cost-shifting around injury from employers to other groups (e.g., taxpayers, workers, private health benefit providers). 

Finally, this study suggests a useful way to begin correcting for under-reporting. For example, workers' compensation board could begin more aggressively following up on medical reports that do not generate worker reports to ensure these injuries are captured.

-- Bob Barnetson

2019 workplace injuries and fatalities report

Sean Tucker and Anya Keefe from the University of Regina have released their annual roll up of Canadian workplace injuries and fatalities using 2019 data. Note that this data is for the pre-COVID period, although there is some preliminary 2020 COVID-claims data included in a separate section.

The nub of the story for Alberta in 2019 (again, pre-COVID) is:

• Alberta continues to have among the highest per capita injury-related occupational fatality rate, which jumped 9% in 2019 over the previous three-year average. 
• Alberta also has the highest absolute number of injury-related fatalities despite having only about 10% of Canada’s population. 
• Alberta has the third highest absolute number of disease-related fatalities. 
• Alberta’s lost-time claim rate also jumped 11% in 2019 when compared the previous three-year average (the biggest jump in Canada)

Oddly, Alberta just announced changes to its OHS legislation (effective December 1) to weaken its already ineffective injury- and fatality-prevention system. The Alberta data in graphical form is below.

Nationally, there were about 39 accepted COVID-related fatalities and 32,742 accepted COVID-related lost-time claims in 2020. Here is a provincial breakdown.


It is not possible to draw conclusions from this snapshot but tracking and explaining the differences (when you control for population and perhaps the timing of the waves) in accepted cases in BC, AB, ON and QC would be an interesting project.

-- Bob Barnetson

Alberta Labour 2020/21 Annual Report

Alberta Labour released its annual report for 2020/21. As usual, there are a number of interesting tidbits to be found in amongst the spin doctoring. For example, the report (p.18) identifies that the Minimum Wage panel (struck in 2019) to examine the impact of minimum wage changes (and likely to support reducing the minimum wage for servers) reported (I’m told in the spring of 2020) and the government is sitting in the report.

Given the difficulty that many minimum-wage employers are having recruiting staff, it will be interesting to see if the government goes ahead with re-introducing this two-tier wage structure and, if it does, whether employees will be able to take advantage of it and grind server wages.

There was some interesting analysis this year that higher youth wages do not appear associated with job losses among youth (which was the pretext for introduce a lower youth wage in 2019). There is also some suggestion that lower youth wages have not resulted in improvements in youth unemployment. In June, youth (age 15-24) unemployment was 18.1% in Alberta, basically double overall unemployment (9.3%).

The emphasis on helping unemployed Albertans return to work (either via additional training or labour market services) is notable and reflects the 6.6% drop in employment in 2020. The government also reduced by about a third the number of spots available to migrant workers who wish to become permanent citizens to, in part, “enable more job opportunities for unemployed Albertans” (p. 36). Interestingly, the department continued to make efforts to increase labour mobility within Canada by lowering the already low barriers to having certifications from other provinces recognized (pp.37,39).

Employment Standards

The number of Employment Standards complaints dropped by about 35% between 2018/19 and 20201/21. This likely triggered drops in other ES metrics (some of which are positive). There is no analysis of why complaints dropped or which kinds of complaints declined. Potential explanations include fewer Albertans working and fewer Albertans willing to complain given the high level of unemployment.

There is no data provided on what percentage of complaints were found to be valid or how much unpaid wages were recovered (or not recovered). The number of human trafficking investigations jumped from 59 to 95 (no data on outcomes) and single administrative penalty was issues to an employer who derived economic benefits from non-compliance. The report pumps this up as the biggest fine ever issues. What is ignored is that pretty much all valid ES complaints involve the employer enjoying an economic benefit. So a single employer being penalized is not really a huge success.

Occupational Health and Safety

The number of OHS inspections was way up last year, likely reflecting the demands of COVID. The number of orders written was, however, way down. The explanation offered is a bit hard to parse but I think it says that basically OHS only lowered the boom when there was repeated noncompliance. What this tells employers is that they basically get a free pass on their first offence (unless someone gets injured or killed), which does not really incentivize voluntary, pro-active compliance by employers.

There were 55 tickets issues in 2020/21 (mostly to workers). Once again, the report omits important context which is that, under the UCP, ticketing has dropped off to essentially nothing. In 2018/19, there were 479 tickets issues. This dropped to 22 tickets in 2019/20 and remains low in 2020/21.

There were also 18 administrative penalties issued to employers, totalling $62,500. This number is up over last year (14) but I can’t find the data to track the dollar value. Seventeen charges were laid this year against employers (about the same as last year). Fines as a result of convictions dropped from $5.2m to $1.9m because, you guessed it, the number of charges in previous years dropped.

Injury Stats

While injury rates an not very good measures of injury due to massive under-reporting, they do offer year-over-year a measure. There was a significant jump (8%) in lost-time claims and is at the highest level since 2011. COVID explains part of the jump this year, but it is notable that there has been a long-term trend (since 2016) upwards. This suggests that Alberta injury prevention efforts are not working. Accepted fatalities sat at 130, which is about the same as last two years.

Labour Relations

The number of certification applications in 2020/21 was way down (51%). This is likely the result of the reintroduction of mandatory votes (which makes certification drives riskier for unions) and COVID. On the upside, the Labor Board finally began allowing electronic filing (dumping their outdated paper/fax-only system).

-- Bob Barnetson

Alberta's 2019 injury data released

Alberta finally released its annual report on injuries and fatalities for 2019. Some of the key findings are that, from 2017 to 2019:

• Lost-time claim numbers and rates are up slightly,
• Modified work numbers and rates are down some, and
• Overall, the number of disabling injuries is up slightly (likely population growth related) while the rate is down slightly. 

Industry-related data was not super surprising. Ag and forestry is the most dangerous and saw large growth in injury rates (~24%). I suspect this reflects the implementation of mandatory WCB in agriculture.

Manufacturing, processing and packaging was another sector with relatively high injury rates. We should expect this number to spike in 2020 and 2021 given the COVID waves that swept through the meat-packing plants. We’ll likely also see something similar in the public sector (particularly education and health care). We may also see this in mining, given the oilsands camp outbreaks.

There has been a long-term increase in occupational fatality rates in Alberta.


This has included a long-term reduction in the proportion of fatalities caused by motor vehicles accidents (blue bar in chart below) and an increase in workplace incidents (orange bar).

Claims related to harassment and violence doubled from 2015 to 2019. This may reflect, in part, greater awareness and acceptance of these sorts of injuries as a result of changes to the OHS Act and Code made by the New Democrats.


One of the most compelling charts is buried at the end of the document and it tracks injury rates over 10 years. Combined with the fatality rates chart above, the biggest take-away is that not much has changed. 

This suggests that the injury-prevention strategies mandated by successive Alberta governments (which have emphasized education and voluntary compliance coupled with anemic enforcement) have not really moved the needle on worker injuries or workplace safety.

-- Bob Barnetson

New data on injury under-reporting, claims suppression, and risk in small workplaces

Some new research updates have been published by the Institute for Work and Health. A study in BC looked at injury claiming behaviour. It found that approximately half of workers who have a work-related injury or illness that requires time away from work do not report the injury to the BC workers’ compensation system. Key explanations include workers not knowing they are entitled or how to apply or not thinking it is worth their time to do so. Further, between 4 and 13% of people with work-related injuries experience inducements or pressure from their employer not to report the injury.

You can read the full report here and a shorter policy briefing here. This table (nicked from the policy briefing) summarizes the recent evidence on underclaiming and suppression in workers' compensation claims.


The key take-aways are that there is pretty consistent evidence that only half of injured workers report injuries to the workers compensation system. That is to say, workers’ compensation data (which is basically what we use in Canada to assess injury rates and drive public policy) consistently and significantly under-estimates the true level of injury. Further, one of the factors that drives under-reporting by workers is employer claims suppression behaviour.

Interestingly, claim suppression is not the most common cause of under-reporting in the BC study. Workers not knowing to or how to report was a significant factor. This is followed by workers not thinking it was worth their while to do so (in part because some employers offer alternative forms of injury compensation).

A second study investigated the reasons underlying higher risk of injury to workers at small firms. The upshot of this study was that inadequate safety policies and procedures at smaller firms were the major source of higher injury rates. When this variable was controlled for, differences disappeared. This suggests that smaller workplaces are not intrinsically less safe and the greater risk of injury can be attenuated by improved organizational processes

-- Bob Barnetson

Working conditions in meat plants

John Oliver recently did an interesting piece on working conditions in meat-packing plants. These working conditions are broadly similar to those in Alberta plants.

These conditions are an important factor in the repeated outbreaks of COVID at these plants. Close proximity, relentless pace, and no breaks are pretty common. Workers get injured often and seriously and receive inadequate medical care. Many workers are vulnerable workers, whose residency in the country may be at risk if they get fire. Others have few options for comparable jobs.

 

Alberta’s response to COVID outbreaks in meatpacking plants have basically been ineffective (kind of like Alberta’s broader response to COVID). Which is why we’ve seen outbreaks in plants High River, Calgary, Red Deer, and Brooks. The High River outbreak was one of the largest outbreaks in Canada. Workers and their family members have died. There has been community spread due to ineffective workplace controls.

 

-- Bob Barnetson

 

 

Labour & Pop Culture: WCB fraud

 

A colleague passed along this Kids in the Hall skit about construction workers jinning up a fake workers’ compensation claim. The premise is that the worker’s job is so bad he’s prepared to experience a disabling (but non-crippling) injury just to get some paid time off and his co-workers actively help him out.

 

This skit is interesting for several reasons. First, while there are lots of examples of blaming the worker for injuries in popular culture, there are relevantly few that deal with workers’ compensation fraud. 

 

Second, there are almost no reports of workers actually injuring themselves (because workers are not stupid!). Rather, what malingering occurs (and it appears to be pretty rare since being stigmatized as an injured worker is awful) tend to result from workers exaggerating the degree or duration of an injury (the supervisor’s back injury in the skit is actually a good example).

 

Third, the skit gives us a chance to ask what is left out. And, much like real fraud detection in workers’ compensation, what is left out is the employer. Employers failing to report payroll accurately and encouraging workers to not file claims is almost certainly a much bigger problem (that no one wants to tackle because employers are powerful) than worker fraud.

 

Finally, there was a joke about the incomplete level of compensation. “Compensation lets you live life to the fullest. Well, 90% of its fullest.” This deeply appeals to the policy wonk in me. Thanks for the tip, Jonathan!

 

-- Bob Barnetson

Farm child fatality report

Back in 2015, Alberta passed laws giving farm workers basic employment rights, including making their employer subject to the ambit of the OHS Act. This reflected that farm work is very dangerous. Most of these changes were repealed in 2019 by the new UCP government, although some basic OHS rights still exist.

During the period that these laws were in full force, there was an incident on a “family farm” in southern Alberta. Laidlaw Ranching Co Ltd. began operations near Bow Island, Alberta in 1970. On the same property as the cattle ranch is a sand and gravel operation (Laidlaw Sand & Gravel Ltd.). The sand and gravel operation was the subject of 17 compliance orders between 2015 and 2020. Both companies are owned and operated by a single family.

On August 14, 2018, an 11-year-old boy (who regularly performed odd jobs on the farm) of one of the owners and a 17-year-old worker (not related to the owners) on the farming operation were hosing off concrete-pouring equipment being used to build a slab near a silage pit. This work was being performed at the bottom of hill.

Another adult worker (of the gravel company) was operating a front-end loader. The loader was poorly maintained. The operator was driving near the location where the young workers were working. When the driver tried to apply the brakes, the brakes failed to engage. The operator then tried to put the loader into reverse. This caused it to stall and made steering difficult and reduced brake functioning.

The child and worker saw the loader coming at them and ran away from of the loader’s direction of travel. At the same time, the loader veered in the same direction the child and worker had run, striking them both. The 11-year-old died while the 17-year-old suffered minor injuries. The fatality investigation report can be viewed here.

At the time, the RCMP characterized the event as an accident and were not contemplating charges (I wasn’t able to find any indication that charges had been laid later). The OHS investigation was completed and referred to Alberta Justice to see if charges were warranted. Justice declined to prosecute and, as far as I can tell, there were no charges, orders (other than a stop work and stop use orders two days after the incident), administrative penalties, or tickets issued to either the farm or the gravel operation.

I have a couple of thoughts.

First, this incident illustrates how workplace injuries and deaths are treated as less serious than injuries and deaths in other contexts. If the loader had been travelling on a roadway when the brakes failed, almost certainly there would have been charges laid and likely a civil settlement (there was a WCB claim during this year, but I cannot tell if it is related to the 17-year-old's injuries).

Second, except for the very unfortunate circumstances (whereby one of the owner’s children died), there were really no consequences for the employer as a result of this incident. Basically, the message for employers is “whaddaya gonna do?” The lack of consequences for even very serious incidents is a long-standing issue in Alberta and is likely a factor in Alberta’s high rate of work-related injury.

Third, while the application of OHS to the farm is often poo-poo’ed by agriculturalists, clearly farm work is dangerous and following OHS principles (e.g., properly functioning equipment, procedures to ensure rundowns are avoided) would have prevented this incident. Further, the notion that small farms are safe is clearly shown to be false. This farm appears to have fewer than 5 regular employees (the test for the application of many employment laws) but includes an onsite gravel operation with heavy equipment.

-- Bob Barnetson

Union safety effect confirmed in Ontario construction industry

The Institute for Work & Health (IWH) recently released a follow-up study about the union safety effect in the construction industry. Based on data from 2012 to 2018, the report confirms that unionized construction firms had a 31% lower rate of lost-time claim injuries.

This report did not confirm earlier findings that unionized construction firms also reported more no-lost-time injury claims. It appears a more refined methodology is responsible for this non-finding. When the more recent data was analyzed with the older methodology, the older finding returned.

Company size was found to matter. The union effect on lost-time claims was larger for larger companies. No union effect was found for companies with 0 to 4 full-time equivalent employees. The vast majority of construction firms fall into the 0-4 FTE category.

-- Bob Barnetson

Bill 47 reduces compensation for work-related injuries

This post previously appeared on the Parkland Institute Blog.

On Nov. 5, 2020, Alberta’s United Conservative government introduced Bill 47 (Ensuring Safety and Cutting Red Tape Act, 2020). Bill 47 makes substantial changes to the Occupational Health and Safety (OHS) Act and the Workers’ Compensation Act and contains new legislation creating a payment for first responders who die from work-related causes. This is the second of two blog posts examining Bill 47. This post focuses on changes to the Workers’ Compensation Act which, if passed, will come into effect Jan. 1, 2021.

Overall, Bill 47’s changes to workers’ compensation will save employers money by reducing the likelihood of workers receiving benefits when injured and reducing the value of those benefits. Bill 47 also makes it more difficult for workers to appeal decisions and reduces the likelihood they will return to their job once recovered from their injury.

Background

Alberta’s Workers’ Compensation Act provides for compensation to workers who are injured on the job. Compensation is funded by employer premiums and the act is administered by the Workers’ Compensation Board (WCB). This act was also amended in 2017 to increase wage-loss benefits and index them to inflation, require employers to return workers to their job after recovery, and make it easier for workers to navigate the WCB.

Lower Compensation for Injury

Presently, when injured workers experience a wage loss, they are eligible to receive WCB benefits of 90 per cent of any lost net income. That is to say, injured workers receive $9 from the WCB for every $10 in income they lose due to a compensable injury. Bill 47 alters this arrangement in three ways.

First, Bill 47 eliminates from the Act the 90 per cent compensation rate. In its place, Bill 47 permits the WCB to determine the rate at which compensation will be paid. The only plausible reason for the government to give the WCB this discretion is to allow the WCB to lower the compensation rate at some future point.

Second, Bill 47 allows the WCB to establish a maximum income ceiling for compensation. Prior to 2018, this maximum was set at $98,700 and any wages lost above the maximum were not compensated. In 2018, the New Democratic government eliminated this maximum to recognize many Alberta workers earned more than the maximum and should not be penalized if injured. Reinstating a cap will reduce wage-loss benefits (as well as employer premiums, which are driven by claims costs) in high-wage industries.

Third, permanent wage-loss benefits are currently indexed to the Alberta Consumer Price Index. Indexing means the purchasing power of wage-loss benefits are not eroded by inflation. Bill 47 gives the WCB the power to set the annual inflationary adjustment. The WCB is directed to maintain “approximate parity with the cost of living.”

When the WCB had this power prior to 2018, it indexed benefits to CPI minus 0.5 per cent. Workers with permanent wage losses (as well as dependents of workers killed on the job) saw their purchasing power decline over time. The longer they received benefits, the worse loss they experienced. Again, the only plausible explanation for offering the WCB this flexibility is to allow the WCB to set rates below inflation and thereby reduce the cost of employer premiums.

Limiting Psychological and Disease Claims

Generally speaking, injuries are eligible for compensation if they arise from and occur during the course of employment. Determining whether some injuries meet this “arises and occurs” test can be challenging. For example, some occupational diseases have long latency periods and murky causality. These sorts of injuries are sometimes “deemed” to be compensable by the WCB. If you have the injury and worked in a specified industry (sometimes for a specified length of time), your claim is automatically accepted.

There is a list of deemed diseases in the Workers’ Compensation Regulation. Prior to 2018, this list had not been meaningfully updated since 1982. In 2018, a committee was struck to periodically review new medical evidence and recommend changes. Bill 47 disbands this committee and simply charges the minister with a review every 10 years. Given the speed of medical research, updating the list every 10 years is unfair to workers.

Whether a psychological injury is compensable can also be tricky to determine. In 2018, the Workers’ Compensation Act was amended such that psychological injuries were deemed to be compensable if (1) a worker was exposed to a traumatic event in the course of work and (2) was diagnosed with a psychological injury unless (3) the injury was proven not to have arisen and occurred from work. Bill 47 eliminates this deeming of psychological injuries. This means workers will need to prove psychological injuries arose and occurred from work. This will be a very difficult threshold for many injured workers to meet.

Reinstatement

In 2018, the Workers’ Compensation Act was amended to create an obligation on employers to re-employ injured workers when workers were able to return to their duties. Prior to this, workers’ only recourse if their employer sacked them after an injury was a lengthy (around two years) process with the Human Rights Commission. After 2018, employers who illegitimately did not comply with their return to work obligation faced financial penalties. Bill 47 entirely does away with this obligation. This change is profoundly out of step with the Canadian norm.

Bill 47 also creates specific obligations on workers to co-operate with the WCB in vocational and other rehabilitation plans. Workers who don’t co-operate can have their benefits cut off. While this may sound reasonable, the history of vocational and other rehabilitation at the WCB suggests there is a significant risk the WCB will use this power in ways that reduce workers’ compensation (in order to lower employer premiums) or force workers to accept modified work plans that may damage their health.

Appeal System

Workers’ compensation claims are complex. Workers who are dissatisfied with the adjudication of their claim often face an uphill battle navigating a complicated set of policies and appeal steps. Further, the 2017 review of the WCB identified that the WCB had a “culture of denial” around claims and that the internal appeal process may have worked against workers’ interests. In 2018, a Fair Practices Office was set up to create some distance between the WCB and the internal appeal bodies, as well as to help workers navigate the appeal process.

Bill 47 largely scraps this new process. It also tightens the timelines on when a worker can appeal a decision and allows the appeal bodies discretion about whether to suspend the termination of wage-loss and other benefits while an appeal is under way.

Heroes Fund

Bill 47 contains within it a new act entitled the Heroes’ Compensation Act. This act provides for the payment of $100,000 to the dependents of any first responder or corrections officer who dies as a consequence of their work. This payment is in addition to the fatality payment any workers’ dependents receive when a worker dies, as well as any wage-loss payments for which those dependent may be eligible. There are, on average, 10 fatalities among first responders per year. Of these fatalities, approximately 90 per cent were firefighters who died from occupational diseases.

This new benefit broadly mirrors an existing Government of Canada program (the Memorial Grant Program for First Responders). This federal program provides $300,000 payments to families of firefighters, police officers and paramedics who die as a result of their duties. Additionally, these workers are also almost entirely unionized and, consequently, have life insurance as part of their benefit packages.

Analysis

At the beginning of the 20th century, Canadian workers gave up their right to sue their employer for work-related injuries in exchange for stable, predictable and immediate compensation. Over time, workers’ compensation has expanded to include more workers (such as women). More kinds of injuries are also compensated, as our understanding of the negative consequences of work deepens.

Alberta’s legislation long lagged behind the Canadian norm, reflecting a history of conservative governments and agencies that were essentially captured by employer lobbyists. The 2018 changes to WCB brought Alberta’s laws into alignment with the Canadian norms. Bill 47 reverses many of these changes.

Labour Minister Jason Copping suggested that Bill 47 is designed to “restor[e] balance and fairness to the workers’ compensation system to meet the needs of workers and job creators now and in the future.” This is half true. Employers will benefit from Bill 47 through lower premiums. (It is notable that Minister Copping ignores that lower premiums reduces employers’ incentives make workplaces safer.)

The cost of this will be borne by workers. Under Bill 47, workers will be less likely to have their injuries compensated, their benefits will be reduced, their access to the appeals system will be impeded, and they will be less likely to return to their pre-injury job. In effect, this is a return to the state of affairs pre-2018, where the WCB was effectively a creature of employers and had a culture of claims denial.

The Heroes Fund will benefit relatively few workers, who are mostly well insured men. The most useful way to see the Heroes Fund is as a craven PR exercise. By providing marginal increases to valorized workers, the government can deflect attention away from changes that financially benefit employers while making workplaces more dangerous for workers and reducing the compensation paid out when workers are injured.

-- Bob Barnetson and Jason Foster

Alberta government continues rollback of worker protections

 Written by Professors Jason Foster and Bob Barnetson, Athabasca University 

This post previously appeared on the Canadian Law of Work Forum.

Last week the Alberta UCP government introduced Bill 47: Ensuring Safety and Cutting Red Tape Act. The bill makes sweeping changes to the Occupational Health and Safety Act(OHS Act) and the Workers’ Compensation Act. It also creates a new act, the Heroes’ Compensation Act, which provides a lump-sum payment to families of first responders who die as a result of their duties. Media reports have stated Bill 47 repeals many of the protections enacted by the previous NDP government, but the bill actually goes much further, rewriting many longstanding aspects of Alberta’s OHS and WCB system that will undermine worker safety in the province.

OHS Act Amendments

The Bill provides a complete re-write of the OHS Act, making a wide range of changes. The most significant include gutting the rules related to joint health and safety committees, weakening workers’ right to refuse unsafe work, and permitting variances from requirements under the OHS Code.

In 2018, the NDP made joint health and safety committees (JHSCs) mandatory for employers with more than 20 workers, making Alberta the last province to do so. In addition to mandating JHSCs, they established a series of requirements for their establishment and operation to ensure their effectiveness, including member training, worker and employer co-chairs, worker selection of worker representatives, and the right to participate in inspections and incident investigations. 

Bill 47 maintains mandatory committees but eliminates most of the rules governing them. The new Act eliminates co-chairs and permits the employer to appoint worker representatives (after “consultation” with any certified union). The bill strips committees of their right to participate in inspections and investigations, reducing them to receiving worker complaints and issuing non-binding recommendations. It also eliminates the requirement that the JHSC inspect the worksite quarterly, a key tool for identifying hazards, leaving no meaningful requirement that the workplace be inspected regularly.

For the UCP, rules regulating how JHSCs do their job is “red tape” to be reduced. For workers, effective JHSCs are one of the few mechanisms they have to exercise their safety rights and make sure their workplaces are safe. By transforming JHSCs to employer-dominated shells, they have stripped one of three worker safety rights, the right to participate, of any real meaning.

The bill also weakens the second worker safety right, the right to refuse, by restricting its definition and weakening protection against reprisal. The current OHS Act states workers have a right to refuse work “if the worker believes on reasonable grounds that there is a dangerous condition at the worksite or that the work constitutes a danger to the worker’s health or safety or to the health or safety of another worker or another person” (s. 31(1)). Bill 47 replaces “dangerous condition” and “danger” with the narrower term “undue hazard”, which it defines as “a hazard that poses a serious and immediate threat to the health and safety of a person” (s.17(1)).

The change appears to do two things: narrow the range of dangers which trigger the right to refuse by adding “serious”; and eliminating the ability to refuse over dangers that are not “immediate” such as chemical exposure or noise hazards. For example, workers at the High River Cargill plant evoked their right to refuse during the COVID-19 outbreak in their plant in May to protect themselves from the virus. Under the new definition, those refusals would likely be illegal. The bill also bans worker representation at the refusal investigation and strips other workers of their right to be informed of the refusal. The bill makes the right to refuse, already a weak right in practice, even harder to exercise.

The third change has the potential to be insidious. Bill 47 introduces a new provision, called “allowances” which allow an OHS Director to permit an employer or group of employers to “vary” from any provision in the OHS Code, the detailed OHS rules. Waiving provisions will be allowed only if the Director “is satisfied that no person’s health or safety is materially affected by the allowance” (s. 21(1)). No definition is provided of “materially affected”, leaving the door open to undermining of core safety standards. The provision incentivizes employers to find ways to avoid complying with the Code by asking for these variances.

WCB Act Changes

Bill 47 also makes a number of changes to the WCB Act which undermine injured workers’ rights to fair compensation and will reduce employer costs through lower WCB. The first wave of changes will negatively impact the compensation injured workers receive. The bill re-instates an insured earnings cap, which limits the amount of wages eligible for compensation. It also eliminates automatic cost of living increases, returning to Board discretion, meaning rates could erode over time. The bill removes employer obligation to pay for health benefits for injured workers, potentially cutting them off from important health services. Finally, it gives the WCB Board the power to unilaterally cut the benefit level provided injured workers. Currently, the WCB Act stipulates that an injured worker shall receive 90% of net wage losses in compensation. Bill 47 removes the reference to 90% and leaves it to the Board to determine a fair compensation level. This could result in a decision to reduce benefit levels for all injured workers going forward.

The second group of changes undermine workers’ ability to navigate the complex WCB system and receive fair decisions. The most common worker complaint about WCB is its complexity and the difficulty in accessing appeals processes and assistance in those processes. The NDP government established two offices independent of the WCB, Fair Practices Office and Medical Panels Office, to help workers navigate the system. Bill 47 closes both offices and creates a new review office set up under the oversight of the WCB.

The third set of changes puts injured workers long term income security at risk. The bill removes an employer’s obligation to re-hire an injured worker, giving employers the opportunity to use a workplace injury as an excuse to fire an unwanted worker. The Bill also establishes new penalties for workers who fail to cooperate with vocational rehabilitation demands, permitting the WCB to reduce or cut off their compensation payments.

Bill 47’s name is only half right. Most of the bill is about cutting so-called red tape and reducing WCB premiums for employers, but it decidedly does so at the expense of workers’ safety. Workplaces in Alberta will be less safe when this bill is implemented and injured workers will receive less compensation for their injuries. Compounded with other recent anti-worker bills introduced by the UCP government, the erosion of workplace standards and worker rights in Alberta has reached unprecedented levels.

-- Jason Foster and Bob Barnetson