New Brunswick Year in Review

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Law of the Year

Distracted Driving

On June 6, changes to the Motor Vehicle Act that bar drivers from using cell phones (except when operated in a hands-free manner), texting devices and portable entertainment devices while driving took effect. The new law also prohibits the manual programming or adjusting of any GPS system while driving and bars television-style viewing screens, monitors, DVD players and computer screens from being within a driver’s view.

 

Other Notable Regulatory Changes

Fall Protection

On Jan. 1, new fall protection requirements took effect. For example, there’s now a preference for systems that don’t let workers fall, such as guardrails and travel restraints, and a Fall Protection Code of Practice is required for working from a height of 7.5 metres or more and when working within a control zone with a safety monitor.

Accommodations

In April, WorkSafeNB released a guide on workplace accommodations that spells out the rights, duties and best practices under the province’s Workers’ Compensation Act, Employment Standards Act and Human Rights Act.

Training

In Oct., WorkSafeNB announced the release of its Orientation Guide for Employers to help employers develop orientations tailored to their workplace. It covers topics such as PPE, WHMIS, JHSCs, first aid, risk assessments, incident reporting and emergency preparedness.

 

Case of the Year

Inherently Dangerous Work Justifies Random Alcohol Testing of Safety Sensitive Workers

A paper mill implemented a policy of annual random alcohol breathalyser tests of 10% of all workers in safety-sensitive positions. The arbitration board ruled struck it down, ruling that the mill didn’t have a proven history of “prior incidents of alcohol related impaired work” and although the mill’s operations were dangerous, they weren’t “ultra- hazardous.” But the appeals court upheld the testing policy. Random alcohol testing has generally been allowed when it’s limited to workers in safety sensitive positions and done by breathalyser, which is minimally intrusive. And evidence of an alcohol problem isn’t necessary for a random testing policy if the workplace is inherently dangerous, concluded the court. Here, the workplace was inherently dangerous, posing hazards to workers and the environment [Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd., [2011] NBCA 58 (CanLII), July 7, 2011].

 

Other Notable Cases

Injuries Sustained in Employer-Provided Vehicle Covered by Workers’ Comp

Seven workers were injured while commuting to work in a vehicle provided by their employer. Their claims for workers’ comp benefits were approved but the employer appealed. The court dismissed the appeal. There was no evidence that the workers weren’t in the course of employment at the time of the incident. And the fact that the employer provided the vehicle to convey them to the remote job site was sufficient to put it in the employer’s “care and control,” making it essentially part of the employer’s premises [VSL Canada LTD v. Workplace Health Safety and Compensation Commission, [2011] NBCA 76 (CanLII), Sept. 8, 2011].

Fish Farm Fined $15,000 for Worker’s Death

A fish farm pleaded guilty to four OHS violations relating to an incident in which a buoy at a salmon farm cage site fell on a worker, killing him. The court fined it $15,000 [Northern Harvest Sea Farms Inc., Govt. News Release, Dec. 3, 2010].