As Blue Collar has been reporting, WCB suffered a $250M loss in 2019 following the passage of Bill 30. Shortfalls of this magnitude are what drove the Ontario workers’ compensation system into insolvency, deficits which saw ON employers paying 400% more for coverage than were Alberta companies. Making matters worse, surging WSIB (Ontario’s WCB) premiums were among reasons cited by P&G and other global manufacturers for departing Canada. And so, it was agreed upon that something had to be done to avoid a similar fate in Alberta, thus setting the stage for the Ensuring Safety and Cutting Red Tape Act (aka Bill 47).
Key changes proposed by Bill 47
● Obligation to reinstate (OTR) – Bill 30 mandates the reinstatement of workers who become unable to work due to a workplace accident. Bill 47 repeals this requirement, meaning that modified duties may be undertaken voluntarily.
● Presumptive coverage for psychological injuries – Mental injuries suffered by first-responders will be deemed work-related unless proven otherwise. For all other occupations, psychological injuries will continue being adjudicated as per the normal claim process.
● Cap on insurable earnings – Bill 30 removed the $98,700 cap on worker’s insurable earnings. Bill 47 screws that salary cap right back on.
● Group benefits for injured workers – Bill 47 abolishes the employer’s duty to contribute to health benefit plans for injured workers who are off work.
● Fair Practices Office and the Medical Panels Office – To reduce duplication and save money, these services will be (presumably) outsourced to other parties.
● OHS’ definition of ‘health and safety’ – ‘Health and Safety’ per OHS legislation will no longer include physical, psychological and social well-being.
What does all this amount to? For employers, Bill 47 will reduce the cost burden of WCB to some limited extent. On the other hand, for workers, this new legislation reverses numerous protections enacted by the previous NDP government.
With respect to the proposed changes, don’t expect the restored salary cap or OTR exemption to be of particular consequence. When Bill 30 was first conceived back in 2017, many Albertans were earning in excess of $98,700 per annum. But a worldwide recession and COVID-19 dramatically reduced the number of high-income earners, and as such, Bill 47’s limitation on insurable earnings will go largely unnoticed. Likewise, modified duties remain the best way to reduce employer claims costs (and by extension, WCB premiums) and moreover, job accommodations are conducive to a worker’s recovery. Hence, with or without a mandated OTR, employers and employees have every reason to continue modified work planning.
The abolition of the Fair Practices Office took many by surprise, including Blue Collar. The FPO offered invaluable guidance and direction to injured workers and will be sorely missed. The FPO’s dissolution is likely to have a profoundly negative impact on injured workers in dire need of counsel and advice.
And lastly, the redefining of ‘health and safety’ as per current OHS legislation is intriguing. It’s no coincidence that the psychological and social components have been ixnayed by the UCP. Complex mental injuries including PTSD, depression and anxiety, have played an outsized role in driving claims costs through the roof. And yet, curiously, Bill 47 remains silent with respect to WCB’s definition of ‘trauma.’ The definition of “undue hazard” is clarified under the newly proposed OHS Act as a “hazard that poses a serious and immediate threat to the health and safety of a person.” But according to WCB’s policy manual, trauma may be construed as chronic or acute, arising from something overtly terrifying (e.g. being held at gunpoint) to the positively mundane (interpersonal conflicts at work, excessive stress, microaggression, etc). So then, what are we to make of this? Bill 47 seems aloof to a psychologically-safe workplace, meanwhile, WCB may continue accepting claims for psychological injuries based on micro-aggressions — see a problem here?
Moreover, the duty to ensure a psychologically-safe workplace has been enshrined, if no longer by statute, certainly by common law precedents. If WCB denies coverage for, say, major-depressive disorder due to workplace bullying, the courts have shown exceeding willingness to award steep damages on grounds of tortious liability. And what of CSA’s Z1003 Standard (Psychological Health and Safety in the Workplace)? Courts across Canada view Z1003 to be the gold standard of due diligence regarding the duties of care owed to workers, and so how will these various and conflicting legal regimes interact with one another? Only time will tell.
Bill 47 has passed first reading and is likely to be sworn into law. It’s the author’s fervent hope that lawmakers and policymakers consider the ramifications of erasing psychological safety from OHS legislation without first reexamining the test for ‘trauma’ as per WCB policy. Without such reconciliation, WCB may well continue accepting claims stemming from psychologically-unsafe workplaces while OHS imposes no such duty to ensure psychologically-safe workplaces. This obvious discrepancy is a snafu in the making.
And lastly, the decision to abolish the Fair Practices Office is worrisome. Injured workers, especially those who are unable to afford employee representatives, have come to depend on the FPO. In the absence of the FPO, who will fill that void? WCB case managers and adjudicators are already stretched to the max, and so it’s fair to surmise that financially-challenged claimants will pull the short straw. This is an extremely unfortunate development, one that should be reconsidered in Blue Collar’s view.
If you have further questions regarding Bill 47’s impact on you as a worker or employer, please reach out to us at 780.340.5727.