No evidence paid sick leaves kills jobs

Canada and the US are outliers in historically having no statutory paid sick leave. Alberta’s opposition party has proposed 10 days of leave as a pandemic response measure. This logic of this proposal is basically that paid sick leave would help some sick workers decide to stay home by providing security of employment, income, and benefits. Yesterday, Alberta’s premier called paid sick leave a “job killing” proposal.

A 2010 report by the World Health Organization (in the wake of H1N1) suggests that paid sick leave has benefits that far outweigh its costs in Europe. The benefits include:

• Access promptly medical care and the opportunity to follow treatment recommendations 
• Recuperate more quickly 
• Reduce the health impact on day-to-day functioning 
• Prevent more series illnesses from developing 
• Reduce the spreading of diseases to the workplace and community (p.6).

The costs of paid sick leave are mooted to be greater costs (for the state or employers, depending upon the arrangement), loss of productivity, and the potential for abuse by workers (i.e., taking sick days when not sick).

The WHO report suggests European costs are relatively low (averaging just under 200 Euros per year per capita), and paid sick leave is associated with greater productivity.

A US study examined the effect of sick leave mandates in several US cities and states on the number of private sector jobs. These proposals see workers accrue sick leave over time (kind of like; vacation entitlements). The upshot is that there appears to be effectively no impact on jobs numbers (i.e., sick is not a job-killing policy).

A separate study focused on New York’s employer paid sick leave mandate (which extended sick leave to millions of employees) also suggests paid sick leave is no big deal. 

• Most employers experienced no cost increases and those who did (14%), the majority reports <3% change. 
• More than 91% of employers reported no reduction in hiring
• 97% of employers indicated that they did not reduce hours 
• 98% of employers reported virtually no abuse of sick leave and percentage of no-abuse reported was higher for small businesses. 
• 96% reported either no decline or an increase in productivity.

Basically, modest statutory sick leave provisions are a significant public health boon and can be implemented at virtually no cost. There is no credible evidence I could find in a quick search that paid sick days are “job killing”.

Not providing sick leave, by contrast, is likely to increase in the spread of COVID (as workers come to work sick for fear of losing their jobs or not being able to pay their bills). In this way, Premier Kenney’s unwillingness to consider paid sick leave is a “worker killing” policy.

-- 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

Labour and Pop Culture: The A-Team.

No, not that A Team.

This week we start our first enrollment in LBST 415: Sex Work and Sex Workers. One of the topics that the course touches on is the roll that addictions can play in the decision to engage in sex work.

While there are lots of depictions of sex work in pop culture (e.g., Pretty Woman), a particularly nuanced one is Ed Sheeran’s “The A Team”. The song is about a sex worker (named Angel) who is addicted to cocaine (a class A drug in the UK, hence the A Team) and was living at a homeless shelter when Sheeran met her.

White lips, pale face
Breathing in snowflakes
Burnt lungs, sour taste
Light's gone, day's end
Struggling to pay rent
Long nights, strange men

And they say
She's in the Class A Team
Stuck in her daydream
Been this way since eighteen
But lately her face seems
Slowly sinking, wasting
Crumbling like pastries
And they scream
The worst things in life come free to us
'Cause we're just under the upper hand
And go mad for a couple grams
And she don't want to go outside tonight
And in a pipe she flies to the Motherland
Or sells love to another man
It's too cold outside
For angels to fly
Angels to fly

Ripped gloves, raincoat
Tried to swim and stay afloat
Dry house, wet clothes
Loose change, bank notes
Weary-eyed, dry throat
Call girl, no phone

And they say
She's in the Class A Team
Stuck in her daydream
Been this way since eighteen
But lately her face seems
Slowly sinking, wasting
Crumbling like pastries
And they scream
The worst things in life come free to us
'Cause we're just under the upper hand
And go mad for a couple grams
And she don't want to go outside tonight
And in a pipe she flies to the Motherland
Or sells love to another man
It's too cold outside
For angels to fly
An angel will die
Covered in white
Closed eye
And hoping for a better life
This time, we'll fade out tonight
Straight down the line

And they say
She's in the Class A Team
Stuck in her daydream
Been this way since eighteen
But lately her face seems
Slowly sinking, wasting
Crumbling like pastries
They scream
The worst things in life come free to us
And we're all under the upper hand
Go mad for a couple grams
And we don't want to go outside tonight
And in a pipe we fly to the Motherland
Or sell love to another man
It's too cold outside
For angels to fly
Angels to fly
To fly, fly
For angels to fly, to fly, to fly
For angels to die

-- Bob Barnetson

Labour & Pop Culture: Vincent (Starry, Starry Night)

This week’s installment of Labour & Pop Culture looks at “Vincent (Starry, Starry Night)” by Don MacLean. There aren't a lot of song about mental illness and work.

Indeed, mental illness (which is my experience is common) is largely ignored in most courses about employment except as a protected ground and basis for accommodation. This may be one reason why many managers struggle to cope with employees who are mentally ill to one degree or another.

This song is a paean to Vincent van Gogh who suffered from significant mental illness throughout his life and eventually killed himself. According to McLean:

In the autumn of 1970 I had a job singing in the school system, playing my guitar in classrooms. I was sitting on the veranda one morning, reading a biography of Van Gogh, and suddenly I knew I had to write a song arguing that he wasn’t crazy. He had an illness and so did his brother Theo. This makes it different, in my mind, to the garden variety of 'crazy’ – because he was rejected by a woman [as was commonly thought]. So I sat down with a print of Starry Night and wrote the lyrics out on a paper bag.

The 1972 live version I found below does a nice job of captuing McLean’s bittersweet lyrics and melody. It is well worth a listen.



Starry, starry night
Paint your palette blue and gray
Look out on a summer's day
With eyes that know the darkness in my soul

Shadows on the hills
Sketch the trees and the daffodils
Catch the breeze and the winter chills
In colors on the snowy linen land

Now I understand
What you tried to say to me
And how you suffered for your sanity
And how you tried to set them free

They would not listen, they did not know how
Perhaps they'll listen now

Starry, starry night
Flaming flowers that brightly blaze
Swirling clouds in violet haze
Reflect in Vincent's eyes of china blue

Colors changing hue
Morning fields of amber grain
Weathered faces lined in pain
Are soothed beneath the artist's loving hand

Now I understand
What you tried to say to me
And how you suffered for your sanity
And how you tried to set them free

They would not listen, they did not know how
Perhaps they'll listen now

For they could not love you
But still your love was true
And when no hope was left in sight
On that starry, starry night

You took your life, as lovers often do
But I could've told you Vincent
This world was never meant for
One as beautiful as you

Starry, starry night
Portraits hung in empty halls
Frame-less heads on nameless walls
With eyes that watch the world and can't forget

Like the strangers that you've met
The ragged men in ragged clothes
The silver thorn of bloody rose
Lie crushed and broken on the virgin snow

Now I think I know
What you tried to say to me
And how you suffered for your sanity
And how you tried to set them free

They would not listen, they're not listening still
Perhaps they never will

-- Bob Barnetson

Labour & Pop Culture: Navigator

This week’s installment of Labour & Pop culture is “Navigator” by the Pogues. This song is about the workers who built the English railway system, often dying in the process. Navigator (often “navvy”) is an unskilled labourer building canals, railways and other public worker

Canada has a similar history. The canal system in central and eastern Canada was mostly built by Irish and French-Canadian labourers. Much of the difficult western stretches of the Canadian Pacific railways were built by Chinese labourers. These projects saw workers die in droves.

Even today, racialized labour remains a key feature of some industries. Approximately 20,000 workers from Mexico and the Caribbean come to Canada to harvest crops (primarily fruit and vegetables in Ontario and BC). They work and live here for up to 8 months, often in very difficult conditions, and then they return to their home countries. A recurring issue affecting migrant farm workers is their treatment by the workers; compensation system.

A recent Toronto Star report revealed that Ontario’s Workplace Safety and Insurance Board has been slashing injured workers’ benefits by deeming them capable of finding work in Ontario even though they have been returned to their home country (where there are no jobs for them) and barred from re-entry. In this case, the worker was deemed to be employable as a cashier even though he was illiterate and there were no cashier (or other) jobs he can perform near his home in Jamaica.

An appeal panel finally found this process of wage “deeming” (wherein workers are deemed to be employed if they are employable) is an abrogation of the workers’ rights and he is owed nine years in back compensation. This migrant worker is just one of many who have been injured and then put on a plane home, with Canada washing its hands of its obligations.



The canals and the bridges, the embankments and cuts,
They blasted and dug with their sweat and their guts
They never drank water but whiskey by pints
And the shanty towns rang with their songs and their fights.

Navigator, navigator rise up and be strong
The morning is here and there's work to be done.
Take your pick and your shovel and the bold dynamite
For to shift a few tons of this earthly delight
Yes to shift a few tons of this earthly delight.

They died in their hundreds with no sign to mark where
Save the brass in the pocket of the entrepreneur.
By landslide and rockblast they got buried so deep
That in death if not life they'll have peace while they sleep.

Navigator, navigator rise up and be strong
The morning is here and there's work to be done.
Take your pick and your shovel and the bold dynamite
For to shift a few tons of this earthly delight
Yes to shift a few tons of this earthly delight.

Their mark on this land is still seen and still laid
The way for a commerce where vast fortunes were made
The supply of an empire where the sun never set
Which is now deep in darkness, but the railway's there yet.

Navigator, navigator rise up and be strong
The morning is here and there's work to be done.
Take your pick and your shovel and the bold dynamite
For to shift a few tons of this earthly delight
Yes to shift a few tons of this earthly delight.

-- Bob Barnetson

More lousy analysis from the Canadian Taxpayers Federation

This week, the so-called Canadian Taxpayers’ Federation (CTF) released StatCan data about the number of days of illness and disability leave taken by public- and private-sector employees. 

The Alberta release shows Alberta public-sector workers taking an average of 8.5 sick days per year while private-sector employees take an average of 5.1 days. (This pattern is broadly replicated across all Canadian jurisdictions.)

According to the CTF:

“The government could save millions each year if it could reduce the high level of sick leave among government employees,” said CTF Interim Alberta Director Colin Craig. “Politicians should tackle the problem by scaling back the amount of sick leave provided in the first place.”

“The good news is that Alberta bureaucrats are taking less sick time than bureaucrats in other parts of the country,” added Craig. “The problem is that Alberta bureaucrats still take far more sick time than those who don’t work for the government.”

The implication here is that government workers are abusing illness leave. The solution, says the CTF, is for governments to attack illness and disability provisions in public-sector collective agreements (presumably thereby reducing the cost of government).

The CTF’s conclusions are premised on the (false) belief that public- and private-sector employees are comparable groups. An important difference between these groups is that unionization is much higher in the public sector than the private sector (roughly 67% vs 10% in Alberta). Unionization profoundly affects the terms and conditions of work.

For example, virtually every collective agreement contains provisions for sick-leave and most have long-term disability benefits. The same is not true in non-unionized environments My experience is that unionized illness benefits are also better (i.e., provide more sick days) than similar benefits in non-unionized workplaces.

So, one explanation for the difference noted by the CTF is likely is that public-sector workers have a greater opportunity to stay home when they are sick (versus having to come to work ill).

Unionized workers are also less vulnerable to management retribution for calling in sick than are non-unionized workers. Consequently, public-sector workers are more likely to use their illness- and disability-leave benefits than are private-sector workers.

There may also be an argument that public-sector workers (particularly in health-care, education, and emergency-services) have greater exposure to disease and injury than private-sector workers. So they may be more likely to become sick due to occupational exposures. (I’d want to look into that a bit more, but my gut says that is likely correct).

These differences are fairly obvious so it’s strange that the CTF chose to ignore them and, instead, produced a misleading comparison (apples and oranges) that led to a false conclusion (“malingerers!”) and, then, to unsound public policy recommendations (“roll back sick leave so nurses and teachers have to come to work sick”).

(As an aside, this same data might well be used to support calls for more mandatory sick and disability leaves in the private sector so the kid making your frappuccino doesn't pass on his cold to everyone in the coffee shop. The data might also be used to demonstrate how unions make the lives of workers better by allowing them to stay home when they are ill.)

Perhaps the CTF isn’t very good at research and analysis? 

Or perhaps they were just trying to whip up some phony outrage to play to their donor base?

While most media outlets have ignored this crappy analysis, some have taken the bait. For example, Metro Calgary and AM 660 reproduced the CTF press release with zero analysis and no commentary from other affected parties. Global News did only slightly better, interviewing an employer-side labour lawyer.

-- Bob Barnetson

Family leave for Albertans?

The Vanier Institute of the Family recently released a short summary of caregiving in Canada. Caregiving entails providing support to a family member or friend who has a long-term health condition or a disability, or who requires care due to aging.

In the past year, 28% of Canadians have acted as caregivers and just over one third of all employed Canadians are also caregivers. The number of Canadians requiring caregiving is expected to double in the next 30 years due to demographic factors.

About 15% of employer caregivers have reduced their weekly hours of work to accommodate care giving. Of this group, 14% reported losing some or all of their benefits as a result of this reduction. About 44% of employer caregivers also reported missing an average of 8-9 day of employment in a year due to caregiving responsibilities.

As Alberta considers the first major changes to its Employment Standards Code since the 1980s, two changes could help caregivers.

First, the government could harmonize the length of job-protected leave in Alberta to care for a gravely ill or dying loved one (currently 8 weeks) with federal Employment Insurance benefits (26 weeks). Harmonizing these provisions with federal EI provisions would ensure that workers accessing compassionate care EI benefits would not lose their job while caring for loved ones. This change would likely disproportionately benefit women.

Second, Alberta could implement some form of family illness leave. Neither the Employment Standards Code nor the Human Rights Act provides workers with leave to care for sick family members (e.g., children, parents). Ontario provides employees who work for firms with at least 50 employees up to 10 days per year of unpaid personal emergency leave to cope with personal or family illness or medical emergencies. This leave would be most effective if extended to all employees (regardless of employer size).

Clarifying Alberta’s provisions around personal illness leave would also improve workers’ access to remedy in the event the employer denies such leave (remedy is presently murky but appears to fall within the ambit of the Human Rights Commission).

-- Bob Barnetson

Employers nervous about Alberta WCB review

Alberta is reviewing it workers’ compensation system for the first time in 15 years. A few weeks ago, Merit Contractors started a campaign with the basic message is that business is opposed to increased operating costs:

The government’s intended direction is clear: it wants to make it easier to file claims and expand the number of claims that are covered. As a result, WCB premiums are inevitably going to go up.

Together with the carbon tax and minimum wage hike, this is yet another cost for small businesses at a time when they simply can’t afford it. Some will be able to bear the burden, but others won’t. 

Business owners who have spent years building their dream may watch it slip away. Ordinary Albertans will suffer too, with even more people losing their jobs.

This campaign is pretty typical of the corporate-conservative pushback against the NDs. Whether such a campaign resonates with employers is an open question. It paints employers as more concerned with their bottom line than their employees’ health and well-being. Supporting this campaign doesn’t exactly scream “we’re an employer of choice”.

Last week, the review panel released an interim progress report. Its consultation has generated about 2000(!) responses so far and a final report is due in April. A key theme the committee has flagged is a purported shift away from the Meredith principles and towards an insurance model as a source of a number of difficulties. That sounds quite abstract and bloodless, until you read down a few pages and get to this paragraph (I’ve broken the text up a bit to facilitate reading--it is worth your time).

There are people who describe their experiences with the WCB claims process in positive terms. Many others describe their experiences in very negative terms, such as “disrespectful”, “angering”, “frustrating” and even “dehumanizing”.

A widespread view is that the WCB operates its claims process in a way that presumes injured workers are lying about their injuries or illnesses, and looks for any possible reason to deny an injured worker’s claim, lower their compensation, refuse their requests and “cut them off”.

Some feel the WCB deliberately makes its process complex so that injured workers will abandon their claims out of frustration. For example, it is said the WCB will demand injured workers obtain information (such as notes from physicians) to “prove” their condition and its relationship to their employment, only to be told the information they have provided is “still not good enough”.

Others feel the WCB’s culture is focused on saving money rather than compensating injured workers. They say this is evident in the way some WCB personnel display rudeness and a lack of compassion when communicating with injured workers and managing their claims.

Still others characterize the WCB as a bully, saying it abuses its authority by routinely threatening to terminate workers’ benefits if they dare to question its demands. Compounding this, it is said that the WCB’s decision- making process is not clear to people, which further fuels distrust, anger and frustration. (p.7)

The committee also flagged presumptive status, an employer obligation to accommodate returning workers in a meaningful way, and the WCB’s approach to return-to-work as issues requiring more attention. On RTW:

Sometimes workers are assessed as ready to return even though they do not personally feel ready, or their personal physician says they are not ready, or the employer believes they are not ready. Some people say that the WCB ignores such concerns and deems the worker fit to return anyway.

This forces the worker to make a choice between losing their benefits or returning to the workforce and risking their health; and it forces the employer to re-integrate a worker whom they believe should not be there and might pose a safety risk to others. (p.10)

On benefits and premiums, the committee notes:

1. The current insurable earnings cap may need review.
2.  Earnings might be calculated more inclusively.
3. The process by which the WCB deems workers to be earning money (and thus cuts their benefits) may be problematic.
4. WCB premium incentive schemes may drive undesirable employer behaviour.

These topics will likely raise some eyebrows at Merit. That said, I don’t think that Merit can reasonably claim WCB premiums will be going up if even if radical changes were implemented.

I say this because the WCB annually rebates hundreds of millions of dollars to employers (e.g., $507m in 2015 and $467m in 2016) based on accumulated surpluses. Employers may not get a big surplus cheque each year, but premiums will likely stay stable.

Overall, I thought the interim report was very even-handed. It gave voice to a number of important worker criticisms of how the WCB operates that the Tories managed to stifle for the last 20 years. It delved into systemic issues that reinforce the insurance culture of the WCB (premium schemes). Yet it makes no promises and draws no conclusions as the consultation is still going on.

One way to read the tea leaves of this report is that major changes in the culture and operation of the WCB may be required. If I were a Board member or senior executive in the WCB (i.e., the people who set the direction and tone), the implicit condemnation of the WCB's approach in this report might make me a bit nervous. I wonder what kind of push-back the review committee is getting from the WCB?

-- Bob Barnetson

Employer dinged $266k for discrimination case

There was an interesting appeal decision on a discrimination case out of Ontario last week. Vicky Strudwick became deaf late in life (possibly as a result of a virus). Her Mississauga employer failed to accommodate her disability.

According to court documents, the employer also undertook a campaign of abuse designed to force her to quit. You can read the court decision here.

The Toronto Star summarized some of the “high”-lights of the employer’s performance:

Both bosses “tormented (Strudwick) for the specific purpose of making the work environment intolerable,” the court noted in its sharply worded decision, citing evidence presented in court last summer. 

This included advising co-workers not to talk to Strudwick and to telephone her with information she needed. Not hearing the phone — thereby missing the information — provided her superiors with an opportunity to chastise her. 

When Strudwick requested workplace accommodations — including a Canadian Hearing Society assessment, visual fire alarm, a special telephone designed for hearing impaired people, and permission to turn her desk around so she could see people as they approached her — Hoffman denied them, taking the position they were “unnecessary,” the court decision stated.

Strudwick was eventually fired, which led to lengthy legal proceedings. Strudwick won her case but appeals the damages. Ontario’s Court of Appeal increased the damages awards by more than $100,000 to $266,000. The employer’s efforts to shift the damages to its managers was unsuccessful.

Overall, this case unscores the financial and reputational peril faced by employers who seek to push workers requiring accommodation out of the workplace.

-- Bob Barnetson

Submission on WCB Reform in Alberta

via email to wcbreview@gov.ab.ca

15 June 2016

Dear Ms. Norrie, Mr. Carpenter and Ms. Cunliffe,

Thank you for the opportunity to make a submission regarding Alberta’s workers’ compensation system. I have numbered and sequenced my comments such that they correspond to the questions in the WCB Review Workbook.

2. Presumptive Status for Occupational Diseases
Alberta’s list of injuries, illnesses, and disease processes that are granted presumptive status contains significant omissions and the WCB lacks a regular and transparent process to review this list. A biennial and public review of Schedule B of the Workers’ Compensation Regulation by a tripartite review panel would remedy this issue.

Examining other jurisdictions’ presumptive status lists suggests the following injuries, diseases, and diseases processes should be considered for immediate inclusion in Schedule B:

• Asbestos-related diseases, including lung cancer in the absence of asbestosis.
• Esophageal, breast and ovarian cancer in firefighters.
• Hearing loss.
• Musculo-skeletal injuries associated with repetitive motion.
• Occupational asthma.
• Operational stress injuries in first responders, correctional, health-care and social service workers.
• Post-Traumatic Stress Disorder for all workers.
• Plantar fasciitis for those who spend significant amounts of time standing or walking on hard surfaces.
• Temperature-induced injury.

When reviewing Schedule B, the panel should use the balance of probabilities test as the standard for determining presumptive status to reflect the benefit of the doubt traditionally accorded to workers when the work-relatedness of injuries is determined.

3. Psychological Injuries
Chronic onset psychological injuries have often been deemed uncompensable or subjected to very stringent tests of compensability. The reluctance of WCBs (excepting Quebec) to compensate chronic onset psychological injuries reflects:

1. a belief that psychological injuries are caused (at least in part) by factors inherent to the worker; and
2. a fear that workers may file false psychological injury claims to undermine employer authority in the workplaces.

Denying compensability because a worker’s health may contribute to the injury sits uneasily with the “but for” test (i.e., but for the work, the injury would not have occurred) used for other injuries. Denying compensability in order to preclude the potential for workplace mischief ignores that claimants must provide some medical evidence of the injury thus mischievous claims will be rejected.

Subjecting workers suffering from chronic onset psychological injuries to onerous tests of compensability (such as those set out in Policy 03-01, Part 2, Application 6, Question 11) is inconsistent with the purpose of workers’ compensation (i.e., providing no fault injury compensation). It also facilitates a cost transfer from the workers’ compensation system to the worker and the public health system.

Revising the WCB’s policy to find chronic onset psychological injuries compensable when (1) there is a confirmed DSM diagnosis and an objective confirmation of events and utilizing (2) the but-for standard in assessing whether the injury arose and occurred is much more consistent with the purpose of workers’ compensation. It may also be necessary to adjust claims management process and provide additional staff training that recognizes the unique nature of these injuries.

7. Physician and Health Care Providers Interactions with the WCB
Workers appealing occupational disease claim decisions often require medical opinions from occupational heath specialists. Alberta-based specialists typically also have contractual relationships with the WCB to provide services. Recently, I’m told that the WCB has inserted terms in these contracts prohibiting occupational health specialists (who are economically reliant on the WCB) from providing injured workers and their advocates with medical opinions. 

Workers are now required to seek medical opinions from specialists outside of Alberta, which can be very expensive. This prohibition is unfair because it interferes with the ability of injured workers to successfully appeal decisions (and thus receive compensation). The WCB should release occupational health specialists from this provision of all current contracts and eliminate this provision from future contracts.

12. Re-employment Obligations
Injured workers (especially those with disabilities) often find it difficult to find post-injury employment. The Workers’ Compensation Act contains no requirement for employers to re-employ workers who have been injured. Workers may have remedy via the Human Rights Commission but the complaint process is slow and uncertain. While pursuing such a complaint, workers will likely see their wage-loss benefits reduced or terminated via deeming. This can leave workers financially destitute.

Sections 41 and 86 of Ontario’s Workplace Safety and Insurance Act require employers to re-employ injured workers who are ready to return to work if (1) the worker worked for the employer for at least one year prior to the injury, and (2) if the employer employs more than 20 workers (slightly different rules apply in the construction industry). If an employer refuses, wage-loss benefits are continued and charged against the employer’s account. This arrangement provides workers with immediate and meaningful financial assistance, eliminates the economic incentive for employers to not accommodate injured workers, and ought to included in Alberta’s Workers’ Compensation Act.

16. Limits on Insurable Earnings and Wage Replacement Rate
Alberta limited the maximum insurable earnings of a worker to $95,300 in 2015 (this amount is adjusted annually). The maximum serves as a cap on wage-loss benefits (which are paid out at 90% of net earnings up to the maximum insurable earnings) and employer premiums (which are calculated based upon gross earnings up to the maximum insurable earnings cap).

What this means is that the approximately 500,000 Alberta workers whose annual incomes are greater than $95,300 are not eligible to have the entirety of their income considered in the calculation of any wage-loss benefits they are due. In effect, Alberta’s cap transfers a portion of injury costs from employers to workers in the form of uncompensated wage-loss. By contrast, Manitoba places no limit on workers’ earnings for the purpose of calculating wage-loss benefits.

The cap also causes (likely unintended) knock on effects for workers on modified work. For example, workers whose pre-injury earnings were above the cap may be offered modified work at a wage rate that equals the cap. The result is that these workers will be working full-time for much lower wages than before the injury.

There is no clear rationale for a maximum insurable earnings cap and the cap interferes with the basic purpose of workers’ compensation (i.e., compensating workers for wage losses). Consequently, Alberta should eliminate the maximum insurable earnings cap and calculate wage-loss benefits and employer premiums based upon workers’ full gross income.

Similarly, Alberta compensates wage-loss at 90% of net earnings. By compensating wage loss at less than 100%, the WCB is again transferring a portion of injury costs from employers to workers in the form of uncompensated wage-loss. There is no compelling argument for fractional wage-loss compensation and Alberta should compensate workers for 100% of net earnings for any wage loss.

19. Deemed Earnings
When the WCB believes a worker is capable of returning to work but the worker has not been able to secure employment, the WCB estimates the expected earnings of the worker and reduce the worker’s wage-loss benefit by this amount. 

This process of deeming a worker to be earning an income is profoundly unfair. Deeming ignores how economic factors and systemic discrimination can impair an injured (and sometimes disabled) worker’s ability to find employment. Indeed, workers’ wages can be deemed even if the worker is unable to secure a job interview or even find a job opening. Worker advocates report the WCB routinely over-estimates the wages available to workers. For example, a worker with a grade 10 education and no computer skills was deemed capable of earning $75,800 per year as a front desk clerk at a hotel.

Deeming transfers a portion of injury costs from employers to workers in the form of uncompensated wage-loss. While the WCB may need some mechanism by which to address occasional instances of malingering, the routine use of deeming orders is contrary to the basic purpose of workers’ compensation. The WCB’s rationale for deeming (i.e., the WCB is responsible to return injured workers to employability, not employment) ignores that injured workers face systemic barriers to gaining employment. Deeming should be reserved for cases where the WCB can clearly demonstrate a worker is malingering.

21. Other Comments on Benefits
Wage-loss compensation is paid on net earnings. Employer-paid pension and extended health benefits are a part of some workers’ overall compensation package but are excluded from the wage-loss compensation. Workers who receive wage-loss compensation for an extended period can be profoundly affected by lost pension and/or reduced health benefit coverage or entitlements.

This exclusion sits uncomfortably with the purpose of workers’ compensation (i.e., to compensate losses) and disadvantages primarily unionized workers who have traded salary for benefit packages at the bargaining table. The Workers’ Compensation Regulation should be amended to include employer-paid pension and extended health benefits on the calculation of net earnings.

30. Other Comments on Appeals
Alberta unusually allows the WCB to make representations to the Appeal Commission during appeals. Employers and the WCB typically both seek to uphold the WCB’s decision during appeals. The result is the potential for a “ganging up” on the injured worker in appeals hearings, with both the employer and the WCB being more likely to have experienced representation and better access to information than the worker.

The rationale for WCB participation is to provide input on the meaning of WCB policies, the Act and Regulations (which the Appeal Commission is bound by). There is no need for the WCB to make representations to the Appeal Commission during these hearings. If, in the view of the WCB, the Appeal Commission errs in its interpretation, the WCB can file of a judicial review of the decision. Striking the requirement in Section 13.2(6) of the Workers’ Compensation Act to hear representations from the WCB would result in a fairer hearing process.

33. Performance Measures
WCB employees (and possibly contractors) have received incentives (e.g., performance bonuses) based upon performance measures (e.g., claim duration length rates, return-to-work targets). Incentivizing WCB employees and contractors to minimize claim costs aligns the personal financial interests of WCB staff with employers’ interests (under experience rating, see Question 42 below) creates the potential to skew WCB decision making and thereby negatively affecting the ability of injured workers to receive the full amount of compensation they are due. Discontinuing employee incentives will restore both the fact and appearance of unbiased claims management.

42. Experience Ratings and Premium Adjustments
Alberta’s experience rating system provides employer premium discounts and surcharges of up to 40% (there are variations by employer size) based upon employers’ claim costs. Employers may also be eligible for additional discounts of up to 20% under the Partners in Injury Reduction (PIR) program. Overall, these programs were budgeted to operate at a net loss of $173.3 million in 2014.

The academic evidence suggests that experience rating is not as effective as OHS enforcement at making workplaces safer. Presently, there is no evidence Alberta’s experience rating program makes workplaces safer. There is evidence (most recently from Manitoba) that experience rating incentivizes illegitimate claims management behaviour by employers that negatively affects injured workers (e.g., phony and demeaning return-to-work arrangements, claims suppression). This dynamic undermines workers’ access to the compensation they are due and may impede their recovery.

If Alberta discontinued these programs, employers would have a much smaller incentive to engage in claims suppression (thereby reducing the need to police this issue). Discontinuing these programs would also free up approximately $175 millions that could be used enhance OHS education and enforcement in Alberta (more than quadrupling the current enforcement budget).

53. Other Comments
Eliminating Excluded Industries
Approximately 8% of Alberta workers have no access to workers’ compensation benefits because they work in industries excluded from the ambit of the Act by Schedule A of the Workers’ Compensation Regulation. Alberta has the longest list of exempted industries in Canada.

There is no compelling explanation for the exclusion of workers in particular industries. Having excluded industries undermines the ability of injured workers to receive compensation and shifts significant costs onto the public health care system. Eliminating all exclusions from Schedule A would extend workers’ compensation benefits to approximately 195,000 additional Alberta workers.

Protective Leave for Pregnant and Nursing Women
There are approximately 50,000 pregnancies in Alberta each year. Pregnant and nursing women face unique physical, biological and chemical workplace health hazards. Alberta’s Occupational Health and Safety Act requires workers to refuse unsafe work but, in practice, few workers refuse unsafe work for fear of job loss.

Alberta’s Human Rights Act requires employers to accommodate pregnant and breastfeeding workers to the point of undue hardship. Workers who are not accommodated can complain, but such complaints take months and years to resolve. During this time, workers who are denied accommodation may be without financial support.

Quebec provides pregnant or breastfeeding women who work in conditions that threaten their health or the health of their unborn or breastfeeding children (and who can produce a medical certificate to substantiate these concerns) with access to (1) immediate re-assignment, or (2) protective leave funded by the La Commission de la santé et de la sécurité du travail (i.e., the WCB).

Alberta’s current health and safety protections for pregnant and breast-feeding women are inadequate. Providing pregnant and breast-feeding workers with wage-loss benefits should their employer refuse to address workplace hazards will make workplaces safer for this uniquely vulnerable group. The cost of any such leaves can be recouped from the employer via a special workers’ compensation levy.

I would be pleased to provide additional information or commentary if that would be useful to the panel. I can be contacted by 780 454-9881 or barnetso@athabascau.ca.

Sincerely,


Dr. Bob Barnetson
Professor of Labour Relations
Athabasca University

Alberta WCB review asks for input

Alberta’s WCB review panel has asked for feedback from the public. You have until July 15 to answer an online questionnaire or make a written submission. A positive aspect of the review for researchers is that submissions from organizations (but not submissions from individuals) will be made available to the public.

For those considering making a submission, there is an online guide to the WCB system. The guide provides a pretty decent picture of how the WCB works. It also has some interesting stats. For example. it indicates that there were 133,000 new claims in 2015 as well as nearly 14,000 rejected claims (so about 10%). 

Less satisfying was the lack of data presented about investigations of WCB fraud (e.g., how many investigations were undertaken, was the “success” rate of investigations, which stakeholder groups were targeted for investigation).

There is also a workbook that can be filled out (in lieu of a separate written submission). This workbook perhaps telegraphs some of the possible changes to workers’ compensation. For example, it asks specific questions about re-employment obligations, maximums to insurable earnings, the use of deeming orders to reduce compensation payments, and the utility of experience rating.

After years of superficial reviews of various labour issues under the Tories, it is heartening to see an actual, substantial review of the WCB taking place.

-- Bob Barnetson

Gender and compassionate care leave in Alberta

I ran across an interesting article entitled "Accommodating the sandwich generation: Who’s taking care of the caregivers” in a Spring 2015 University of Alberta alumni mag. (I’ll add a link when I can find one.) The gist was that a significant proportion of workers are engaged in providing care not only to their immediate families (often spouse and children) but also to aging parents and friends.

I don’t know that this is any sort of revelation about the pressures of social reproduction. The article then goes on fawn over former Tory MLA Matt Jeneroux who advanced a change providing eight weeks of job-protected leave in Alberta’s Employment Standards Code to (more or less) mirror the 6 weeks of EI benefits available to workers taking care of gravely ill or dying loved ones.

Interestingly, the federal budget just extended these EI benefits from 6 weeks to 26 weeks, effective January 1, 2016. Amending the Employment Standards Code to mirror EI benefits (much like it does for parental benefits) should be a fairly non-controversial task for the Notley government and one that will likely disproportionately benefit women (who perform the majority of care work in our society).

Something else the Notley government may wish to look at is personal emergency leave (or family responsibility leave). Basically, this is a period of paid annual leave (in Ontario, it is 10 days) to allow workers to address personal or family medical emergencies, such as becoming ill or having to care for ill children.

Presently, Alberta has no clear rules around sick time. The Human Rights Code appears to require employers to accommodate personal illness. But, if an employer doesn’t, an employee’s remedy is through a very long and risky human rights complaint. 

According to the Human Rights Commission website, an employer is not required to accommodate a worker’s request to stay home to care for sick children. So, in theory, an employer could sack a worker for staying home with a sick kid. (This may well be changing as the jurisprudence around "family status” is in flux.)

Legislating clear rules around personal medical emergencies in the Employment Standards Code would clarify workers’ rights and employer’s obligations and also gain workers a faster pathway to remedy. Again, this would likely disproportionately benefit female workers.

-- Bob Barnetson

Analyzing the return-to-work movement

The journal New Solutions has just published an article entitled “Not Quite a Win–Win: The Corporate Agenda of the Stay at Work/Return to Work Project” (SAW/RTW). This article interrogates the recent interest in returning injured workers to work as quickly as possible by examining why workers don’t SAW/RTW and who really benefits from such prescriptions.

This narrative anchors itself on the notion that there are unnecessarily disabled workers drawing compensation from insurance providers. The author suggests that proponents of SAW/RTW are colonizing the (laudable) idea that workers with disabilities are still capable of work, in order to reduce the costs of injury compensation borne by employers.

The article then goes on to provide some analysis of who is involved in the “grassroots” SAW/RTW movement in the states. Spoiler: Not workers, unions or their attorneys (the latter two groups being deemed impediments to communicating with injured workers about SAW/RTW). Treating physicians also appear to be on the outside, perhaps because their primary interest is in the injured worker getting better, not necessarily returning to work quickly.

Overall, an interesting perspective on what some suggest is a media-friendly retreading of the old malingering-worker school of thought.

-- Bob Barnetson

Friday Tunes: Blue Sky Mine

One of the first songs I recall hearing that clearly connected music to work is 1990’s Blue Sky Mine by Midnight Oil. The song is about the devastation that has flowed from the Wittenoom asbestos mine in Australia. Already, over 2000 of the 7000 miners employed by the Colonial Sugar Refinery (that owned the mine) and their 13,000 dependants who were on site between 1937 and 1966 have died from asbestos-related diseases.

Due to the employers hiding knowledge of the hazards posed by asbestos, asbestos was often used in local roads, gardens and school yards (it even doubled a snow in the Wizard of Oz). It is hard to adequately convey the immorality of asbestos employers (and governments who backed them--including Canada's Chretien and Harper governments) but Midnight Oil makes a valiant attempt.

Written from the perspective of an injured miner, the song talks about how disposable workers are (“So I’m caught in the junction still waiting for medicine”) and how employers lied (and continue to lie) about the effects of asbestos (“They’re crossing their fingers they pay the truth makers”). The worker also talks about how economic dependence limited his options then (“There’ll be food on the table tonight.”) and now (“Hope the crumbs in my pocket can keep me for another night”), poignantly asking “Who's gonna save me?”

Blue Sky Mine also directly engages the profit imperative of capitalism that incentivizes such truly horrid behaviour from corporations (“The balance sheet is breaking up the sky” and “And the company takes what the company wants/And nothing's as precious, as a hole in the ground”).

I picked an acoustic cover by Genevieve Lemon, which shifts the song from anger into sadness but also make sthe lyrics a bit easier to hear.



Hey, hey-hey hey
There'll be food on the table tonight
Hey, hey, hey hey
There'll be pay in your pocket tonight

My gut is wrenched out it is crunched up and broken
A life that is led is no more than a token
Who'll strike the flint upon the stone and tell me why

If I yell out at night there's a reply of bruised silence
The screen is no comfort I can't speak my sentence
They blew the lights at heaven's gate and I don't know why

But if I work all day at the blue sky mine
(There'll be food on the table tonight)
Still I walk up and down on the blue sky mine
(There'll be pay in your pocket tonight)

The candy store paupers lie to the share holders
They're crossing their fingers they pay the truth makers
The balance sheet is breaking up the sky

So I'm caught at the junction still waiting for medicine
The sweat of my brow keeps on feeding the engine
Hope the crumbs in my pocket can keep me for another night

And if the blue sky mining company won't come to my rescue
If the sugar refining company won't save me
Who's gonna save me?

But if I work all day...

And some have sailed from a distant shore
And the company takes what the company wants
And nothing's as precious, as a hole in the ground

Who's gonna save me?
I pray that sense and reason brings us in
Who's gonna save me?

We've got nothing to fear
In the end the rain comes down
Washes clean, the streets of a blue sky town

-- Bob Barnetson

Addictions, last-chance agreements and the empathy gap

Accommodating an employee who claims to have an addiction is a challenging task—one employers sometimes make harder for themselves by passing moral judgment on the worker.

For example, I recently saw a last-chance agreement. The worker’s addiction caused disciplinable behavior and the employer (to meet its duty to accommodate the disease) put the employee on notice that if the employee was caught using again (among other conditions), to the curb she would go.

On first blush, this sounds reasonable enough. But think about it some more.

An addiction is a disease and this disease is characterized by relapses. So requiring no relapses is, in itself, discriminatory (but for the disease, there would be no relapse).

Maybe replace “addiction” in the example with some other medical condition and see for yourself. For example, if the worker required an accommodation because the worker broke her leg, would that come with a “no more broken legs or your ass is grass” condition? (Yes this is an imperfect analogy—I’m tired—but you get the point.)

When the employer’s lawyer was confronted with the discriminatory nature of this requirement, the lawyer blustered about being confident the agreement was not discriminatory and then immediately backed off and agreed to more (albeit not entirely) reasonable language.

So what are we make of the lawyer trying to foist a provision on a worker that the lawyer knew to be discriminatory?

After mulling it, my sense is that the lawyer was just out to jerk the worker around—to punish the worker for her disease. (If we make the charitable assumption the lawyer was competent, what other explanation is there?) At the root of that is a moral judgment: the worker was weak or lazy or irresponsible.

I see this kind of moralizing a lot.

For example, if you get tennis elbow from playing too much tennis, everyone understands and you get put on light duties. If you get tennis elbow from pulling cabling through wall studs or processing thousands of packages for 10 years, suddenly you are malingering and the whispering starts.

You see, privileged rich people really **get** tennis elbow. And sore backs from walking around museums (museum fatigue!). And eye strain from stamp collecting (philatelic vascular spasms!).

Not so much joint, back and eye problems from actual work (“it must all be in your lazy, irresponsible head”).

This empathy gap is a theme in Karen Messing’s new book Pain and prejudice: What science can learn about work from people who do it (from which I nicked the tennis and museum examples—thanks Karen!). In this book, Messing reflects on her career studying workplace health (particularly among women in low-paying jobs) and posits an empathy gap exists in the workplace.

To paraphrase, because of the (usually) different social classes from which workers and managers are drawn, their different day-to-day experiences, and manager’s desire to not be responsible for addressing the problems facing worker (which reflect embedded exploitation), managers are often profoundly unsympathetic (or even oblivious) to the problems of workers.

Basically, suck it up, buttercup.

The book covers a lot of other territory, but Messing’s description of her personal awakening to the empathy gap is one of the more compelling aspects of the book. Perhaps the lawyer who wrote the objectionable last-chance agreement might benefit from a copy?

-- Bob Barnetson

Bill 46 attacks nursing moms, new dads, the sick and the injured

Bill 46 sets out what the annual cost-of-living adjustment (COLA) will be for public servants from April 1, 2013 to March 31, 2017. In this way, the Tory government has displaced arbitration as the way to resolve collective bargaining impasse in the public sector with employer fiat via legislation (which is likely a violation of the Charter protections associated with the freedom to associate, but let’s move on for the moment).

The COLA set out in the legislation are:

• 0% in 2013
• 0% in 2014
• 1% in 2015, and
• 1% in 2016

To “sweeten” the deal, the government will also make a one-time payment of $875 to each employee on April 1, 2014 in lieu of a COLA. Unions and workers generally don’t like one-time payments because they (naturally) don’t carry forward into future years and thus the inflation that an actual COLA is supposed to offset erodes the purchasing power of the employees’ wages. Employers, conversely, love one-time payments because they are much less expensive (in the long-term) than a percentage increase in salary.

One of the interesting features of Bill 46 is that not every employee is eligible for this one-time payment. Section 3(3) of Bill 46 says:

3(3) An employee is not eligible to receive a lump sum payment under section 2(d) if, on April 1, 2014, the employee is
 (a) on a leave of absence and receiving workers’ compensation benefits,(b) on a leave of absence and receiving payments under the Government Long Term Disability Plan referred to in Article 33A of the Master Agreement,(c) on parental or adoption leave as described in Article 40 of the Master Agreement,(d) on maternity leave as described in Article 40A of the Master Agreement, or(e) on a leave of absence as described in Article 46 of the Master Agreement, and that leave began before April 1, 2013.

Basically, if you are a nursing mom on mat leave, or a dad at home with a new baby on parental leave, or you have MS and you’re on a medical leave, or you lost a hand on the job and are on workers’ comp, you don’t get the $875, even when you return.

Now, if the 2014 payment had been a proper COLA, you likely would receive it on your return to work. This is because a COLA isn’t about performance, it is just to ensure inflation doesn’t erode your wages.

Indeed, if you didn’t receive it, the employer would be violating s.7 of Alberta’s human rights legislation. For those Tory MLAs who didn’t read the law they passed, it says:

7(1) No employer shall... 

(b) discriminate against any person with regard toemployment or any term or condition of employment,because of … gender, physical disability, mental disability, … family status… .

And, of course, there is that awkward s.15(1) of the Charter that prohibits governments from discriminating:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Yet refusing to pay the $875 to people on leaves which reflect underlying protected grounds (disability family status and gender) also violates both Alberta’s human rights legislation and the Charter. Oops. So these provisions of Bill 46 should be easy to strike down. (Oops, I said “strike”—hope I don’t get fined under Bill 45!)

What is surprising is that the Premier and the Minister of Human Services (both lawyers) would somehow fail to grasp this fairly basic legal problem with Bill 46.

Vastly more troubling is that Alison Redford and Dave Hancock seem to have missed the moral issue here. As a society, we don’t discriminate against the sick and the injured. And we don’t discriminate against nursing moms and new dads.

Unless they’re union members, I guess.

-- Bob Barnetson

Older workers and unemployment

One of the things that came out of the weekend workers' compensation conference I attended was a discussion of how difficult re-employment is for injured workers. This came up in the context of deeming, a practice by Workers' Compensation Boards whereby wage-loss compensation to injured workers is sometimes reduced based upon a deemed amount the worker is expected to earn (whether or not the worker has a job).

By coincidence, this 20-minute CBC radio documentary (called Freedom 95) arrived in my inbox. It discusses the difficulties faced by older workers who find themselves unemployed. While older workers don't have exactly the same challenges as injured workers do, they do face similar systemic barriers. The result is that they can never retire.

The documentary discussed the federal Targeted Initiatives for Older Workers (TIOW) program. This provincially delivered program ends in March (in Alberta, at least). It is unclear whether it will be renewed. If it isn't renewed, one of the knock-on effects is that those who are served may well abandon efforts to connect to the labour market and, instead, access various social benefits.

Interestingly, the TIOW is designed to serve workers up to age 64, although the need for post-65 labour market attachment assistance seems clear as many Canadians don't have adequate resources to retire.

-- Bob Barnetson