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

Climate change and safety: treeplanters and wildfire smoke

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

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

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

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

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

-- Bob Barnetson

Another worker dies, nothing much happens.

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

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

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

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

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

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

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

-- Bob Barnetson

Resisting company doctors through moral suasion

Unionized workers can make gains and stave off concessions by attaching costs to employer behaviour in the hope that the employer will decide to behave differently.

Most often, we think about strikes. Strikes attach primarily financial costs to employer intransigence at the bargaining table by disrupting production. If the strike causes the employer enough pain, the employer tends to compromise.

Moral suasion is a different way to attach costs to employer behaviour. Athabasca University’s (AU’s) unsuccessful efforts to impose company doctors on its academic staff provides a useful example of this tactic and its limitations.

AthabascaU’s demand for company docs

In 2018, AU pushed its workers to agree to new contract language around company doctors. Essentially, the employer wanted to be able to send a worker for a so-called independent medical examination (IME) if:

• the worker used sick leave frequently or for a prolonged period,
• the employer believed the worker was unable to do their duties due to illness or disability, or
• the employer believed a worker was mis-using their sick leave.

This proposal would give the employer a largely unfettered ability to impose and IME upon pain of discipline and/or loss of sick leave. Such a power would:

• interfere with workers being able to choose their own health-care providers,
• open the door to illegitimate employer demands for non-therapeutic medical examinations, and
• would end-run the requirement for the employer to get an arbitrator’s order to require an IME. 

Seventy-seven percent of union members were opposed to this proposal. Of particular concern to the union’s members were the possibilities of:

• worker fear of being sent to an IME might cause them to not use their sick leave when its use was medically required,
• when workplace harassment had caused a worker’s performance to deteriorate or the worker to go off sick, the employer might weaponize the IME process to further harass the sick member, and
• the medical opinion of a company-paid doctor may result in a refusal of sick leave or the alteration of work restrictions set out by the worker’s treating physician.

The employer’s rationale for this proposal was cost-savings (i.e., no arbitration hearing required). In fact, the proposal shifted costs from the university (lower financial costs) to the worker and their families (less privacy and greater stress).

There was, of course, no evidence of any meaningful level of sick leave abuse. A review of 15 years of union files (with a membership of more than 400 workers) identified one case where the university officially raised concerns about the accuracy of medical information provided to the employer. This was conern was resolved.

Pushing back on company docs

Resisting company doctors could certainly form part of the basis for a strike mandate. But there is always the risk that members might be willing to accept company-doctor language as part of a package deal (i.e., if the employer offered something good in exchange) or to avoid a strike (if company doctors was the only major issue). Given this risk, the union opted to explore a different approach first.

The company-doctor proposal was obviously repugnant. The union also suspected it was being driven by the desires of the HR shop, rather than being a core mandate from the university’s Board of Governors (which was the ultimate decision maker). These factors opened the door to applying moral pressure on Board members to abandon the proposal.

Activists identified 15 members who (1) were secure in their jobs, (2) had experience with ill-health that required medical leave, and (3) had a reasonable degree of political acumen. The union then used its membership map to divide them into five three-person groups based on pre-existing relationships.

Each team was tasked to write a five-paragraph letter to individual Board members (the union provided contact details). The first and last paragraphs were boilerplate, respectively introducing the issue and asking the Board to drop its proposal.

Each team member wrote one of the middle three paragraphs, disclosing their personal experience with medical leave and explaining how the company-doctor proposal would have affected and harmed them. The letters were heart wrenching and drove home the odious nature of the Board’s proposal.

The union coordinated the members sending their letters such that Board members received a new letter every week. The Board members eventually concluded that their negotiating team’s proposal truly was not worth pursuing because, shortly thereafter, the employer’s chief negotiator said “company doctors (suddenly!) wasn’t a hill to die on” and the proposal fell away.

Analysis

This example illustrates one (of myriad) ways that workers can attach costs to employer behaviour and, thereby, possibly change it. The costs attached by the letters were mostly emotional. Few people (even employers!) enjoy being shown how their behaviour will profoundly and personally harm others.

The Board members may also have been concerned about being publicly and personally associated with such a disgusting and harmful proposal. That threat was not contained in the letters, but was an obvious next step and was part of the union’s overall escalation strategy.

Having workers write about their very personal experiences of ill-health appeared more effective at driving home to the employer how awful the proposal was than were the union’s broader communications about the proposal. The pressure exerted by the letters was applied discretely enough that there was no real loss of face for the employer in doing so.

The union members, both those directly involved and those who simply heard about the tactic, got to see how they could take effective action to protect their own interests. This built confidence among the members in their ability to resist employer demands and advocate for themselves.

A weakness of this tactic is that it creates the possibility of a rapid reversal by the employer. For example, if the employer catches even one worker malingering or faking sick in the future, it is likely to bring this proposal back to the table. And, because the employer will feel like it got emotionally manipulated into withdrawing the earlier proposal, the employer will likely pursue the renewed proposal vigorously. In this way, both the employer and the union now have a shared interest in ensuring no workers malinger.

-- Bob Barnetson

AU’s ergo program symptomatic of organizational dysfunction

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

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

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

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

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

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

Overall, this initiative is pretty typical of AU:

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

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

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

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

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



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

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

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

-- Bob Barnetson

More on COVID and OHS

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

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

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

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

According to CBC, Smith said:

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

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

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

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



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

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

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

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

-- Bob Barnetson

Alberta KB decision on government edicts prohibiting mandatory masking in workplaces

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

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

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

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

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

This is all mostly an academic matter for two reasons. 

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

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

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



-- Bob Barnetson

Reflections on the efficacy of joint committees during COVID

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

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

Early COVID response

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

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

Transitioning to Working from Home

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

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

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

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

Aerosol spread and hazard protocols

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

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

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

Re-opening and COVID protocols

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

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

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

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

OHS Complaint and Inaction

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

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

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

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

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

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

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

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

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

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

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

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

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

Upshot

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

-- Bob Barnetson

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

Alternative-causation arguments effective at sowing doubt

One strategy that manufacturers and employers use to delay the regulation of and liability for harmful substances is to make alternative-causation arguments. Basically, they say that the apparent effects caused by a harmful substance or process are actually the result of something else.

The journal Population Health has an interesting article examining the efficacy of alternative causation arguments on individual uncertainty or false certainty about the risk associated with products.

The upshot is that individuals exposed to industry-generated alternative causation messaging (that downplay the risk of harm) were more likely than a control group to be uncertain or false certain about the harms of certain products. Individuals with lower levels of knowledge about the topic were more likely to be affected.

The suggests that the alternative causation strategy is an effective one. It is one aspect of a well-established playbook of techniques that manufacturers use to avoid or delay regulating hazardous materials.

-- 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

Alberta guts OHS rules

In late December, my colleagues Jason Foster, Susan Cake and Jared Matsunaga-Turnbull and I wrote about Alberta’s efforts to gut Alberta’s joint health and safety committee rules and undermine workers’ right to refuse unsafe work.

The short of it is that joint committee have fewer duties and fewer powers and are much more creatures of the employer. This will undoubtedly reduce their already limited effectiveness. While it was there, the government also eliminated the requirement for periodic inspections of the workplace, regular meetings of the committee, ongoing training for committee members, and most rights to see information about workplace safety.

The right to refuse dangerous work has also been watered down, with term dangerous work being dropped in favour of the weaker term “undue hazard”. An undue hazards is a hazard that poses a serious and immediate threat to the health and safety of a person. The use of the terms “serious” and “immediate threat” narrow the kinds of danger work that can be refused. Most chemical and biological hazards, for example, do not pose an immediate threat.

The bar on employers’ retaliating for refusals has also been weakened. Previously, the employer could not discriminate against a work for refusing unsafe work. That has been narrowed to a bar on disciplining a worker. Practically, what this means is that an employer can now do things like assign a refuser crappy work or crappy shifts (because that is not discipline) if they refuse unsafe work.

Overall, this is part of the UCP governments efforts to reduce the financial cost to employers of safe workplaces. The negative impact on workers (in terms of injuries and deaths) is simply waved away. About the only good news is that the UCP is likely headed for electoral oblivion in May of 2023 so these changes stand a good chance to being scraped.

-- 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