Year-End Compliance Briefing: New Brunswick 2018 OHS Year In Review
OVERVIEW & ANALYSIS
2018’s most dramatic moment came in June when the Auditor General issued a report blasting the government for weakening WorkSafeNB’s independence, impeding its operations and driving up its costs. As an example, the report cited government delays in appointing a chair or vice-chair that left WorkSafeNB’s board of directors unable to make decisions over a 4-month period. A speedier appointment process was among the18 recommendations the AG listed to fix the problems. In November, the government tabled a workers’ comp reform bill incorporating this and other recommendations, including those issued by the Task Force appointed to review the system.
The most important development on the OHS side was the decision to add new workplace violence and harassment rules. Newly created Part XXX.1 of the OHS Regs. was slated to take effect by year’s end before being pushed backed to April 1, 2019. It requires employers, in consultation with the JHSC, to:
- Perform a workplace violence hazard assessment, in consultation the JHSC;
- Implement a detailed workplace violence “code of practice” explaining the risks (including with regard to workplace domestic violence), measures in place to manage them, reporting and investigation procedures and training to be provided; and
- Implement a parallel code of practice for workplace harassment (but they don’t have to do a harassment hazard assessment).
The biggest story in workers’ comp was WorkSafeNB’s decision to jack up premiums a shocking $1.22 to a $2.92. It’s the third annual increase in a row and the most dramatic so far. And unless and until WorkSafeNB gets the Accident Fund’s financial deficit under control, expect more hikes in the future, the agency warns.
WorkSafeNB also made news by becoming the first jurisdiction in Canada to create a written policy (Policy 25-015) for coverage of medical marijuana for treatment of compensable work injuries and illnesses. It also modified its current coverage Policy 25-12 on opioid drugs.
New Brunswick 2019 Workers’ Comp Rates
|2019 Average Assessment (per $100 assessable payroll)||2019 Maximum Assessable Earnings||2018 Average Assessment (per $100 assessable payroll)||2018 Maximum Assessable Earnings||2019 Filing Deadline|
TOP 5 OHS CASES
Here’s a summary of what OHSI voted the 5 most significant OHS cases decided in New Brunswick in 2018.
- High Court Gives Injured Worker Second Chance to Get Her Benefits Restored
WorkSafeNB cut off the benefits of an injured hotel worker for supposedly not giving full effort during her functional capacity assessment. The worker vigorously disagreed but the Appeals Tribunal brushed her objections aside. The Court of Appeal said the Tribunal was wrong to do this and ordered a new proceeding. The Tribunal’s finding that there was no evidence contradicting WorkSafeNB’s determination that the worker wasn’t giving full effort was plain wrong. There was such evidence but the Tribunal ignored it, the Court concluded [Paul v. Worksafe NB, 2018 NBCA 47 (CanLII), Aug. 9, 2018].
- Court Says It’s OK to Use Secret Video Surveillance Film to Discipline Employees
A hidden video camera captured 7 paper mill employees entering the employee numbers of co-workers to get batteries, welding gloves and other supplies from a “vending” machine. The arbitrator said that the mill couldn’t use the surveillance footage and set aside the suspensions. But the mill had the last laugh when the court reversed the arbitrator’s ruling. Nothing in the law or collective agreement banned the mill from using a hidden camera to film “vending” machine transactions and use the footage to discipline the employees, reasoned the court in ordering a new hearing in which the film could be used as evidence [Irving Paper Ltd. V. Unifor Local 601n, 2018 NBQB 93 (CanLII), May 15, 2018].
- Workers’ Comp Covers Salesman’s Brain Hemorrhage While Driving
A salesman driving home from work suffers a brain hemorrhage and gets into an accident. Doctors later identify the cause of the hemorrhage as the rupturing of an aneurism. And since it isn’t clear exactly when the rupture occurred, the WHSCC (as it was known at the time) rules the injury isn’t work-related and denies him benefits. The appeals tribunal reverses and the case lands in the NB Court of Appeal which upholds the tribunal’s decision to award the salesman benefits. The tribunal’s reasoning that what happened to the salesman while driving home from work was an “accident” arising out of the course of his employment since his job required him to drive even if the precise timing of the aneurysm was unclear [Workplace Health Safety and Compensation Commission v. St-Onge, 2018 NBCA 53 (CanLII), Sept. 6, 2018].
- Mill Worker Who Commits Dangerous Lockout Violation Gets to Keep His Job
Can a mill worker previously disciplined for a lockout violation be fired after he commits a second offence? On the one hand, the mill has a “zero tolerance” lockout policy providing for termination for a second offence. But the first offence was over a year ago, and the collective agreement requires the mill to clear a worker’s disciplinary record after one year. The arbitrator rules that the collective agreement negotiated with the union trumps the lockout policy which the mill implemented unilaterally. Result: The worker is guilty of only a first offence and must be reinstated [Unifor, Local 5080 v Twin Rivers Paper Co. Inc., 2018 CanLII 99677 (NB LA), Oct. 3, 2018].
- Using Cell Phone While Operating Machine Is Last Straw for Troublesome Worker
Video surveillance catches a sawmill worker not wearing her safety gloves, protective eyewear or earplugs and using her cell phone while operating a “stacker” machine. Despite the worker’s “no big deal” and contention that “everybody does it,” these are serious safety violations; and for a worker with a long record of safety violations, not to mention attendance and attitude issues, they prove the last straw. The union fights valiantly but the worker’s track record, coupled with her lack of remorse and failure to respond to previous progressive discipline proves more than enough for the arbitrator to uphold the decision to fire her with cause [Unifor, Local 104 v Grand Lake Timber Ltd., 2018 CanLII 67293 (NB LA), July 18, 2018].
WHAT TO EXPECT IN 2019
New Brunswick will move forward with workers’ comp reform. Key changes to expect:
- Strengthening of WorkSafeNB’s independence and policy making powers;
- Elimination of the unpaid 3-day waiting period for injured workers;
- Clarification of the current formula for calculating CPP Disability offset;
- Replacing current survivors’ benefits with a new benefit not subject to a family means test in the event of remarriage or CPP offsets;
- Revised rules for the “deeming process,” i.e., adjustments based on earnings for jobs worker is deemed capable of doing;
- Stronger return to work protections;
- Financial measures to fix the Accident Fund deficit;
- Clarification of the Workers’ Comp Act definition of “accident.”