Year-End Compliance Briefing: Newfoundland 2018 OHS Year In Review
2018 Legislative & Regulatory Highlights
February: WorkplaceNL publishes Work Plan for 2018-2022 listing MSIs, falls, young workers, workplace violence, psychological safety and traffic control as priority risk areas.
April: Government adopts a bill increasing from 80% to 85% income replacement rate benefits based on a percentage of an injured worker’s pre-injury net (after tax) income. IRR benefits remain subject to a maximum compensable assessable earnings cap.
June: WorkplaceNL publishes 2017 Annual Report showing a nearly 100% spike in accepted fatality claims—25 vs. 13 in 2016. Other year-over-year rates and metrics are largely flat.
July: New WorkplaceNL Policy EN-18 expanding workers’ comp coverage for mental stress beyond traumatic events to stress that develops gradually over time takes effect.
July: Public review of PRIME (Prevention and Return-to-Work Insurance Management for Employers/Employees program which provides workers’ comp discounts and rebates to employers that meet OHS and return to work criteria.
August: WorkplaceNL issues new OHS guidelines for changing oil in ammonia refrigeration systems.
December: Assembly passes Bill 36 creating a new one-time, lump sum payment of 5% of Extended Earnings Loss retirement benefit (10% for injured workers who were previously in an employer-sponsored pension plan) paid to workers upon reaching age 65.
Newfoundland 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
Most of the exciting OHS developments from Newfoundland came from the courts, especially cases involving discipline for workplace drug use. Here’s a summary of what OHSI voted the 5 most significant cases of 2018.
- 18-Month OHS Trial Delay Limit Doesn’t Apply to Laying of Charges
In a 2016 case called R v. Jordan, the Canadian Supreme Court ruled that an OHS trial delay of 18 months or more is presumed to violate a defendant’s right to a speedy trial unless the prosecutor can rebut the presumption. A construction subcontractor charged 2 years after an incident claimed that Jordan should apply not just to trial delays but also delays in laying charges. The court disagreed. While post-charge delays are subject to the Jordan rules, pre-charge delays are still assessed under the historical case-by-case formula, it reasoned [R. v Flynn Canada Limited, 2018 CanLII 104609 (NL PC), Nov. 5, 2018].
- Not Discrimination to Deny Safety-Sensitive Job to Med Marijuana User
After testing positive for THC, a worker conditionally offered the safety-sensitive position of Utility Person at a hydroelectric project admitted to using medical marijuana for osteoarthritis. Rather than instantly cancel the job offer, the contractor kept its head and requested medical information from the prescribing doctor so it could make an informed evaluation of his fitness for the job. Unsatisfied by the doctor’s response, the contractor asked for more information and refused to let the applicant work any safety-sensitive job until it got the information it needed. The stalemate continued until the union lost patience and filed a grievance. The arbitrator sided with the contractor, finding that it had tried to accommodate the applicant but lacked the medical information make a full assessment. Letting an admitted medical marijuana user do a dangerous job without being able to assess his capabilities and fitness would impose undue hardship on the contractor [IBEW, Local 1620 v. Valard Construction LP, (Arb. John Roil, Q.C.), April 20, 2018].
- OHS Officer’s ‘Upholding’ of Work Refusal Is OK Even If Misstated
This convoluted case began when 2 electricians refused to show up for their shift because one of them wasn’t adequately trained for hazardous electrical work. The OHS Officer “upheld” the refusal and ordered the employer to deliver the training required by the Process Safety Management Code of Practice. The Administrative Deputy Minister (ADM) upheld the ruling and order. After the Labour Refused to take it, the case ended up before the Supreme Court. Result: Appeal denied because the ADM ruling was reasonable. The Officer misspoke by “upholding” a work refusal because that’s not the Officer’s role in the refusal process. But even though the ADM didn’t point this out, its decision not to find the Officer’s ruling invalid was still reasonable; equally reasonable was the ADM’s upholding the Code of Practice training order since requiring employers to follow codes of practice is well within an Officer’s authority under (Sec. 36 of) the OHS Act [NARL Refining Limited Partnership v. Upshall, 2018 NLSC 163 (CanLII), July 31, 2018].
- Employee Fired for Failing Post-Incident Drug Test Gets Reinstated
A Helicopter Landing Officer on an offshore platform was fired for failing a post-incident alcohol and drug test. The union cried foul. The union accepted the policy of testing employees after a “significant safety incident” and didn’t object to management’s discretion in determining what constituted a “significant safety incident” triggering testing. Its beef was that management abused its discretion by testing after everything, essentially turning the for-cause into a random testing policy. The arbitrator agreed and reinstated the Officer. He and the other employees involved in the incident should have at least been questioned and given a chance to explain before they were tested to see if there were grounds to suspect alcohol or drug use. The appeals court upheld the arbitrator’s ruling as reasonable; and now the Newfoundland Court of Appeal has done the same regarding the appeal’s court ruling [Hibernia Platform Employers’ Organization v Communications, Energy and Paperworkers Union (Unifor, Local 2121), 2018 NLCA 45 (CanLII), July 24, 2018].
- ‘It Was a Mistake’ No Defence for Possessing Illegal Cannabis at Work
Screeners find a tinfoil packet containing a small amount of cannabis in the jeans pocket of an offshore platform millwright as he’s boarding a helicopter. The millwright is fired for violating the employer’s policy banning workers from possessing an illegal drug on company property. The millwright claimed the violation was accidental and that he didn’t know he had the cannabis on him. But the arbitrator dismissed the grievance, saying that this was a strict liability policy, i.e., merely committing the banned act was a violation regardless of the worker’s mens rea, i.e., intent or state of mind. The appeals court found the arbitrator’s ruling unreasonable but the Court of Appeal had the final word and upheld the original arbitration decision. Reading the policy as a strict liability without need for mens rea was reasonable, the Court explained [Terra Nova Employers’ Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7 (CanLII), Jan. 24, 2018].