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Ebola Preparedness for Employers: U.S. OSHA Launches Ebola Web Page

The United States Occupational Safety and Health Administration (OSHA) has launched an Ebola Web Page for employers providing information on Ebola and how to protect workers.

OSHA states that workers, including healthcare and airline workers, performing tasks involving close contact with symptomatic individuals with Ebola, or who work in environments contaminated or reasonably anticipated to be contaminated with infectious body fluids, are at risk of exposure.

OSHA’s guidance includes information on hazard recognition, medical information, standards, and control and prevention.

OSHA has also issued a “Fact Sheet” called “Cleaning and Decontamination of Ebola on Surfaces: Guidance for Workers and Employers in Non-Healthcare/Non-Laboratory Settings”.

Here in Canada, Public Health Ontario and the Public Health Agency of Canada have also issued materials and guidance regarding Ebola.

Employers – particularly those whose workers may be at greater risk of exposure to Ebola – should prepare a plan for dealing with Ebola, including the logistics of telecommuting arrangements.  Employers’ obligation under health and safety legislation to take every precaution reasonable in the circumstances for the protection of workers, includes an obligation to take reasonable precautions relating to infectious diseases.

Stay tuned to Occupationalhealthandsafetylaw.com for further workplace-safety updates relating to Ebola.

Ebola Preparedness for Employers: U.S. OSHA Launches Ebola Web Page

Disabled employee who lied about ability to work was fired for cause

An employee who lied to and misled her employer about her ability to perform her work as a reporter, was fired for just cause, an arbitrator has held.

The employee severely injured her ankle while skydiving “on assignment for a travel piece involving extreme sports”. The arbitrator found that there was no doubt that the ankle injury resulted in a disability.

The employee told the employer that she could not drive and that going out on assignment by taxi “wiped her out”.  She also presented herself as unable to get around the workplace without the use of two canes.  Further, she presented medical evidence stating that she could not take public transit or drive to work due to the pain control medication she had been prescribed.  The employer obtained video footage of the employee in which her actions were inconsistent with the abilities that she represented to the employer.  The arbitrator stated that:

“Watching the video, there is a stark difference between how the Grievor walks (more labored) when she is closer to the workplace versus how she walks when away from the workplace (more mobile).  Even more startling is the fact that it appears that when the Grievor is not taking her pain medication she appears more mobile, driving her automobile to conduct errands for herself and her family, including shopping in Niagara Falls and Buffalo, New York on one of the busiest shopping days of the year.

“One would expect that the Grievor would experience more pain, which would be visible, when not taking her pain medication. The Grievor said as much in her own evidence. However, the video shows her as having more mobility and less apparent pain when not taking her medications so she can drive. This was never explained to my satisfaction. The best the Grievor could state was that she has learned to cope with the pain.”

In particular, the arbitrator stated that the employee had tried to “cover up” her ability to drive for work.  She had been deceptive: she did not want the employer to know that she was able to drive.

The arbitrator held that the employee had an obligation to provide the employer with accurate information to assist the employer to fulfill its duty to accommodate.  The employee was not honest or forthright. Instead, her dishonesty undermined the duty to accommodate as well as the employment relationship. She was dismissed for just cause – despite the fact that she was clearly disabled.

Toronto Sun v Unifor Local 87-M, 2014 CanLII 22359 (ON LA)

 

Disabled employee who lied about ability to work was fired for cause

Excessive Hours of Work Could be Safety Issue: OLRB

Working excessive hours could pose a safety issue, the Ontario Labour Relations Board has held in refusing to dismiss a complaint that the employee was fired in retaliation for raising safety issues.

Section 50 of the Occupational Health and Safety Act protects employees against retaliation for raising safety concerns.

Interestingly, the complaint was filed by a former manager with the Public Services Health and Safety Association, a “safe workplace association” designated by the Minister of Labour under the Occupational Health and Safety Act. He claimed that the employer dismissed him in retaliation for him raising certain concerns, which he characterized as safety issues.

The employer asked the OLRB to dismiss the employee’s complaint, arguing that the issues that he had raised before his dismissal were not safety issues. The OLRB, however, decided that excessive hours of work could possibly raise a safety issue, so that part of the complaint could proceed.

The OLRB did, however, dismiss the employee’s allegations that the employee’s pre-dismissal complaint that other staff had been treated negatively and that the employer had interfered with the pay equity process, raised safety issues.

Watkins v. The Health and Safety Association for Government Services, 2013 CanLII 57037 (ON LRB)

Excessive Hours of Work Could be Safety Issue: OLRB

Voluntary Global Standard for Occupational Health and Safety Coming Soon

In August, the International Organization for Standardization(“ISO”), the world’s largest global developer of voluntary international standards, approved the creation of a project committee who will develop an international standard for occupational health and safety management systems (“OHSMS”).   

The ISO states that the OHSMS standard is intended to provide governmental agencies, industry and other organizations with an effective, usable guidance for improving worker safety around the world.  One of the primary objectives of the new global standard is to create an international framework for OH&S best practices and help prevent and reduce work-related injuries, diseases, and deaths worldwide. 

While the global standard will not be mandatory in Canada unless expressly adopted into Canadian law, the OHSMS standard may assist employers who opt to implement it in demonstrating that they have taken reasonable steps to ensure the health and safety of its workforce and could be of assistance where an employer is seeking to make out a due diligence defence. 

The first meeting of the project committee is scheduled to be held from October 21-25, 2013 in London, United Kingdom. Stay tuned.

By Lindsay Mullen  and Jennifer Shepherd

 

Voluntary Global Standard for Occupational Health and Safety Coming Soon

“A parking lot is not just a parking lot”: Scooter accident was WSIB issue, employee’s lawsuit barred

An employee’s motor scooter accident in her employer’s parking lot was a Workplace Safety and Insurance Board issue, so the employee was not entitled to sue the employer in the court, the Ontario Workplace Safety and Insurance Appeals Tribunal has held.

The employee’s lawyer argued, based on the Ontario Court of Appeal’s recent Blue Mountain decision, that “sometimes a parking lot is just a parking lot” and not a workplace, just as the Court of Appeal had said that “sometimes a swimming pool is just a swimming pool” so that a guest’s death in a swimming pool need not be reported to the Ministry of Labour under the Occupational Health and Safety Act.

The WSIAT, however, decided that the Blue Mountain decision had no application to the scooter case.  Rather, the Workplace Safety and Insurance Board policy was clear that workers are “in the course of employment” upon entering the employer’s premises – including a parking lot owned or leased by the employer – using an accepted entrance, on their way to work.

Here, where the employee’s scooter accident occurred in the employer’s parking lot on the way to work, the parking lot was effectively a workplace, and her injuries “arose out of and in the course of her employment”. Therefore, she was prohibited from commencing a lawsuit in the court for damages due to her injuries.

Decision No. 1584/12, 2013 ONWSIAT 1016 (CanLII)

“A parking lot is not just a parking lot”: Scooter accident was WSIB issue, employee’s lawsuit barred

Employers Should Prohibit Texting While Driving: U.S. OSHA

Distracted driving, and in particular texting while driving, are important occupational safety issues, and employers need to act, the U.S. Occupational Safety and Health Administration says in a new brochure called “Distracted Driving: No Texting“.

The brochure quotes an official as saying, “It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality. We are asking employers to send a clear message to workers and supervisors that your company neither requires nor condones texting while driving.”

The brochure goes on to state that employers should “Prohibit texting while driving. OSHA encourages employers to declare their vehicles ‘text-free zones’ and to emphasize that commitment to their workers, customers, and communities.”

OSHA states that if it receives a “credible complaint that an employer requires texting while driving or organizes work so that texting is a practical necessity, we will investigate and will issue citations and penalties where necessary to end this practice.”

One expects that Canadian workplace safety inspectors would similarly take action, under occupational health and safety legislation, against employers who require or encourage employees to text while driving, or impose such great demands on employees that they are practically required to text while driving.

Employers Should Prohibit Texting While Driving: U.S. OSHA

Self Described “Happy Drunk” with Sleep Apnea was not Disabled: Adjudicator

“Not every ailment amounts to a disability”, an adjudicator has held, in dismissing an employee’s grievance. Employers who often wonder what types of ailments or conditions amount to “disabilities” will find this decision interesting.

The employee had an erratic attendance record. The employer imposed reporting requirements on the employee as to when and how he must report to his supervisor if unable to arrive at work at all or on time. The employee breached those conditions and was disciplined. The employee then filed grievances challenging the discipline and alleging that the conditions were unfair, constituted harassment, and failed to take into account his sleep apnea and drinking problem.

The adjudicator held that the employer, faced with the employee’s poor attendance record, which was a departure from the norm, was entitled to impose the reporting requirements.

The adjudicator went on to state that the employee’s sleep apnea and drinking patterns did not amount to a disability. The adjudicator’s comments are interesting:

“130 The difficulty is that the grievor’s argument confuses an ailment with a disability. Depression and stress are commonly experienced by many people in the course of their working lives. Neither is, by that fact, disabling. The same can be said of sleep apnea. The fact that one experiences such conditions does not establish a prima facie case of disablement or, all the more so, a prima facie case of discrimination based on a disability. Needed in this case was evidence that the conditions were so bad that they disabled or at least limited the grievor’s ability to comply with the reporting conditions. But the grievor offered no such evidence other than the conditions themselves.

“131 The importance of managing attendance is not eliminated by the mere assertion that one has an illness. Not every physical or emotional ailment amounts to a disability requiring accommodation. Some ailments – such as depression, emotional stress or headaches or, in Mr. Riche’s case, sleep apnea – may impact a person’s life without necessarily making it impossible for them to comply with the usual expectations of working life. For example, depression may be mild, moderate or totally disabling. The severity of its impact will depend upon the severity of the cause, the person’s psychological makeup and the steps he or she takes to combat it. It is not a sufficient excuse on the part of an employee to justify his or her repeated tardiness or frequent absences by saying, “I’m depressed”, or, “I had a headache.” Something more is required to enable the employer to know that the ailment is truly disabling, that is, something beyond the control of the employee as opposed to simply an excuse. In part, that is the reason the jurisprudence emphasizes the obligation on the part of the employee seeking accommodation to explain the nature of the problem and to co-operate in its treatment. Without such an explanation, the employer has no way of knowing whether the ailment is severe enough to amount to a disability or what to do about it by way of an accommodation if so required.”

The adjudicator went on to state that employers are not required to accommodate “issues that an employee is able to control”. Here, the adjudicator held that the employee was able to control his problem with sleeping in – for instance, by putting his alarm clock on the other side of the room. Also, the grievor’s statements that he was a “heavy drinker” and a “happy drunk” were not enough to establish that he was an alcoholic, particularly when he stopped short of calling himself an alcoholic and did not call evidence from his family doctor.

As this case demonstrates, not every health condition will be a disability, and the mere assertion by an employee that he has a health issue may not be enough , in every case, to require the employer to accommodate.

Riche v. Treasury Board, 2013 PSLRB 35 (Public Sector Labour Relations Board, April 19, 2013)

Self Described “Happy Drunk” with Sleep Apnea was not Disabled: Adjudicator

Court Dismisses Safety-Reprisal Complaint Related to Family Dispute

An employee who claimed that he was dismissed after sharing his concerns about the well-being of himself and his children and the “lifestyle of their mother”, has been denied a remedy under the safety-reprisal provisions of the Canada Labour Code.

The employee, who was in the midst of a family-law dispute, alleged that his employer, the Canada Revenue Agency, did nothing to respond to those concerns including notifying proper authorities. He said that had an occupational health and safety investigation been held and a report properly issued following his complaint, the whole matter would have turned out differently and he would not have been dismissed.

The Public Service Labour Relations Board dismissed his reprisal complaint, holding that the employer’s decision to terminate his employment was an extension of its decision to place him on leave without pay after he exhausted his sick leave credits and did not return to work.

The Federal Court of Appeal upheld the PSLRB’s decision, holding that the employee was “unable to show the link between the asserted danger and his employer, but for the alleged duty of the CRA to get involved in his personal life and to protect him and his children.”

This case is an example of how occupational health and safety laws will not extend to alleged safety concerns in an employee’s personal life of a purely private nature that do not affect an employee’s workplace safety.

Gaskin v. Canada (National Revenue), 2013 FCA 36 (CanLII)

Court Dismisses Safety-Reprisal Complaint Related to Family Dispute

Addressing Workplace Hazards: Law to be Clarified by Alberta’s Highest Court

The Alberta Court of Appeal has agreed to hear an employer’s appeal of a judgment of the Court of Queen’s Bench which overturned acquittals, by a Provincial Court judge, of two charges under the Alberta Occupational Health and Safety Act.

A fatal incident occurred involving a “calf roping machine” at a Stampede Week party event hosted by the employer in 2007. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries. Following an investigation into the incident, the employer was charged with failing to ensure, as far as it was reasonably practicable to do so, the health and safety of its worker and failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

We recently posted an update of this case describing the appeal decision in R. v. XI Technologies Inc., 2012 ABQB 549. The Court of Queen’s Bench overturned the two “not guilty” verdicts of the trial judge. On the evidence, the trial judge found that the employer had raise a successful due diligence defence and found the employer “not guilty” of the charges. The trial judge concluded that while the employer had identified certain hazards arising out of the operation of the calf roping machine, which was not functioning properly at the time, the employer had put in place operating procedures which diminished the risk to the point that a reasonable person would conclude that it was safe to continue with operating the machine in accordance with the adopted procedures. The Crown appealed and the verdicts were overturned. The appeal court disagreed, found the verdict of the trial judge to be unreasonable, and found that on the evidence due diligence on the part of the employer could not be established. The appeal court judge found that the preventative measures adopted by the employer to respond to the hazard were not adequate to address the risk and, as such, the machine ought to have been placed out of service.

In late November, the employer applied to certify that an appeal lies to the Alberta Court of Appeal on the basis that the case involves a question of law of sufficient importance to justify a further appeal. In granting leave to appeal, Justice O’Brien confirmed that the two-part test was met by the employer, which required that the appeal would involve a question of law as well as and a matter that was of sufficient public importance to warrant an appeal.

Justice O’Brien agreed that an issue of law is raised where there is an issue of whether a verdict is reasonable and can be supported by the evidence. Most notably, Justice O’Brien confirmed that an issue of law arises with respect to an employer’s legal obligations regarding hazard identification and preventative steps; in particular, clarification in the law is required as to where the employer may draw a line in the risk versus hazard analysis in determining what preventative steps are reasonable in circumstances where the harm may be likely but minor versus where the harm is extremely unlikely but may result in serious consequences. This question involves the proper interpretation and application of the concepts of “risk” versus “hazard” and how they relate to foreseeability. In this regard, reference was made to the appeal court judge’s interpretation and application of the Ontario Court of Appeal’s decision in R. v. Rio Algom (1988), 66 OR (2d) 674 with respect to the test of whether a reasonable person would have foreseen the potential danger. From this, Justice O’Brien granted leave to appeal because he considered that the extent to which an employer may rely upon operating procedures to mitigate an identified risk was a matter of general public importance.

The decision of the Alberta Court of Appeal in this matter is expected to be of significant importance to employers as we expect the law will be clarified in relation to specifying the degree of hazard analysis and identification that must be taken and the corresponding level of precautions or preventative steps that must be implemented.

The Reasons for Decision regarding the application to certify that an appeal lies to the Court of Appeal is found at R. v. XI Technologies Inc., 2012 ABCA 368.

Stay tuned.

Addressing Workplace Hazards: Law to be Clarified by Alberta’s Highest Court

Driver Charged Criminally in Death of Highway Flag Person

The CBC is reporting that criminal negligence charges have been laid in the highway death in August of a flag person working on a road crew in Saskatchewan.  The flag person was struck by a passing vehicle in an “orange zone”.

The CBC reports that the driver was arrested at the scene and later released.

The case, said the CBC, “sparked a public outcry and led to police stepping up patrols and ticketing in orange zones.”

This case is another example of how high-profile worksite fatalities pose a hightened risk of criminal charges against workers – and against members of the public who case serious injuries or death to workers.

The CBC article may be accessed here.

 

Driver Charged Criminally in Death of Highway Flag Person

CSA Safety Training Standard Coming in 2013

Employers sometimes struggle to understand the scope of training required by occupational health and safety legislation.  The CSA Group is developing an “Occupational Health and Safety Training” standard for employers, and other workplace parties, to consider using.

A draft of the standard was released for consultation purposes some time ago. It can be viewed at http://redlandsgroup.com/.

The CSA Group expects to publish the new training standard in March 2013.

The CSA Group says, on its website,

“Each year, organizations in Canada are making significant investments in providing safety training to workers. Training is critical to helping ensure the health and safety of employees on the job. To help organizations invest limited training resources appropriately, CSA Group is developing a new standard, Z1001 – Occupational Health and Safety Training, which will provide the essentials of managing a health and safety training program and a way to recognize OHS training practices . . . The Standard . . . will help organizations to evaluate potential training programs and assist with the selection and evaluation of training providers.”

Ontario employers in particular, who will be faced with providing a mandatory safety training program to workers, should consider using the CSA Group standard in developing a comprehensive safety training program.  The use of such a standard could help the employer establish the due diligence defence if charged under the Occupational Health and Safety Act.

CSA Safety Training Standard Coming in 2013

Get Your jab! – British Columbia Government Imposes Flu Vaccination Requirement for Health Workers

In hopes of driving up immunization rates among BC health care workers, the Government of British Columbia is imposing strict flu-season requirements on workers who come into contact with patients at publicly-funded health care facilities or in the community. Starting with the upcoming flu season, applicable health care workers (including health-authority staff, physicians and residents, volunteers, students, contractors and vendors) will be required to either obtain a seasonal influenza vaccine or to generally don a mask at all times during the flu season.

B.C. Provincial Health Officer Dr. Perry Kendall, who recommended these measures to the Provincial Government, wrote that less than 50 percent of health care workers are immunized against influenza each year, despite being in contact with high risk populations such as seniors, pregnant women, young children, and the immuno-compromised. Citing evidence from long-term care facilities that health care worker vaccinations results in diminished illness and fewer deaths each flu season, the physician argued that “[g]etting the flu shot should be considered standard patient safety practice for all health-care workers who come into contact with patients – as important as following effective hand hygiene practices, staying home when ill or wearing a mask in the operating room.” British Columbia will be the first jurisdiction in Canada to implement such a policy.

According to media outlets, the unions representing health care workers are generally supportive of vaccinations, although the British Columbia Nurses Union has said it will not yet formally respond to the directive and has rather referred to its October 2011 Press Release on the issue where it stated that vaccinations should be promoted through education, rather than through a punitive approach by the employer.

A Government of British Columbia “Backgrounder”, cites influenza as causing the most deaths among vaccine-preventable diseases.

According to Dr. Kendall, in U.S. jurisdictions where similar requirements have been imposed, health care worker immunizations levels have reached approximately 95 percent.

The Government’s Press Release, Dr. Kendall’s Opinion Editorial and the BCNU Press Release on Influenza vaccinations can be accessed at:

http://www.gov.bc.ca/health/

http://www.newsroom.gov.bc.ca/ministries/health/factsheets/opinion-editorial-flu-shots-save-lives-protect-patients.html

https://www.bcnu.org/News/news.aspx?page=Bulletins_Oct 21, 2011

Get Your jab! – British Columbia Government Imposes Flu Vaccination Requirement for Health Workers

MOL Announces Members of new Prevention Council

The Ontario Ministry of Labour has announced the members of its new Prevention Council:

Labour representatives

  • Patrick Dillon, Business Manager and Secretary Treasurer, Provincial Building and Construction Trades Council of Ontario
  • Colin Grieve, Occupational Disease Worker Advocate, Hamilton and Ontario Professional Firefighters Associations
  • Nancy Hutchison, Secretary Treasurer, Ontario Federation of Labour
  • Bryan Neath, Regional Director – Ontario, United Food and Commercial Workers Canada

Non-Union Worker Representative

  • Linda Vannucci, Director, Toronto Workers’ Health and Safety Legal Clinic

Employer Representatives

  • Michael Oxley, President and Chief Financial Officer, DuPont Canada
  • Gloria Rajkumar, CEO, SIMAC
  • Roy Slack, President, Cementation Canada Inc.

Occupational Health and Safety Expert

  • Graeme Norval, Associate Chair and Undergraduate Coordinator, Department of Chemical Engineering, University of Toronto

Of particular note, perhaps, is the appointment of the the presidents – not human resources or safety managers – of large, well-known companies to the Prevention Council.

The Ministry notes that “one employer representative and a representative from the WSIB are currently being finalized and will be announced in the near future.”

The concept of the Prevention Council was created by the Bill 160 amendments to the Ontario Occupational Health and Safety Act that resulted from the Expert Advisory Panel’s report on occupational health and safety, which was released in December 2010.

Under the Occupational Health and Safety Act, the Prevention Council’s mandate is largely to provide advice to the Chief Prevention Officer on the prevention of workplace injuries and occupational diseases, and for the purposes of the provincial occupational health and safety strategy and the Chief Prevention Officer’s annual report on occupational health and safety.

We will provide further updates on the activities of the Prevention Council and Chief Prevention Officer, and the impact of their activities on Ontario employers.

 

MOL Announces Members of new Prevention Council

First Ontario Company Convicted of Criminal Safety Charges: Christmas Eve Scaffold Collapse

On Christmas Eve, 2009, four workers died and a fifth was seriously injured when the scaffold they were standing on to effect repairs to the exterior of an apartment building in Etobicoke, Ontario collapsed and fell thirteen stories to the ground below.  The accident resulted in rare charges of criminal negligence causing death against the construction company, Metron Construction, and its owner and President, Joel Swartz.  None of the four workers killed – including supervisor Fayzullo Fasilov – were wearing lifelines at the time of the accident.  The fifth worker survived because he was wearing a lifeline, although it malfunctioned at the time of the accident.  A sixth worker escaped unharmed due to a functioning lifeline.

Recently, Metron Construction became the first Ontario company in history to plead guilty to charges of criminal negligence causing death. The Toronto Star was apparently in the courtroom at the time and reported on the contents of the agreed statement of facts – a document prepared jointly by prosecutors and defence lawyers that is read into court during a guilty plea.  The Star quoted the document as stating that Metron Construction’s guilty plea was a direct result of the acts and omissions of its supervisory employee, Mr. Fasilov, whose role within the organization was of sufficient authority to render Metron Construction legally responsible for his acts and omissions.  The Star reported that the agreed statement of facts went on to state that Mr. Fasilov failed to take reasonable steps to prevent harm and death by directing or permitting workers to work on a scaffold when he knew or should have known it was unsafe and that he directed the workers to complete the work knowing that only two lifelines were available.  The Star also said that a section of the agreed statement of facts indicated that Mr. Fasilov had permitted employees to work while under the influence of drugs, as a toxicology analysis had confirmed that three of the four workers killed, including Mr. Fasilov, had marijuana in their systems from recent ingestion. 

Prosecutors and lawyers for Metron Construction are continuing to make submissions to the court on the appropriate fine to be levied against Metron Construction.  Prosecutors are reportedly seeking $1,000,000.00. 

The Star also reported that prosecutors have dropped the charges of criminal negligence causing death against Mr. Swartz on the basis that they believed there was no reasonable chance of conviction, but that Mr. Swartz has pleaded guilty to four offences under the Occupational Health and Safety Act including:   failing to take reasonable care to ensure a worker using a fall protection system received adequate training, failing to keep proper training records, failing to take reasonable care to ensure a suspended scaffold was properly maintained to protect a worker’s safety and failing to comply with all aspects of construction regulations.   The Star indicated that prosecutors and defence lawyers have agreed to fines of $22,500.00 for each count, but that this joint submission on fines remains to be approved by the court.

The publicity around this case may generate renewed interest, from both the public and criminal prosecutors, in criminal safety prosecutions against Ontario employers.  Although the facts of the Metron Construction case are extreme, one thing is clear from this and other Bill C-45 criminal safety cases: charges are most likely where death or serious injury results from a hazard that was known to the employer or a supervisor but was not addressed.

We will keep you updated as more information unfolds about this case.

Toronto Star article:  http://www.thestar.com/news/crime/article/1215472–metron-construction-pleads-guilty-in-2009-deaths-of-four-workers-in-scaffold-tragedy

First Ontario Company Convicted of Criminal Safety Charges: Christmas Eve Scaffold Collapse

Union organization wants better enforcement of criminal safety offences under Bill C-45, releases guide for police

The Canadian Labour Congress (“CLC”), an association of unions, has published a guide for police use when investigating corporate criminal negligence in cases of serious workplace injuries and fatalities.  The Guide is entitled, Death & Injury at Work:  A Criminal Code Offence.  In a press statement issued in May 2012, the President of the CLC indicated that the CLC’s motivation to produce the guide arose from an increasing sense that police are too rarely moving to enforce the corporate criminal negligence laws introduced into the Criminal Code in 2004 through Bill C-45.

The Bill C-45 amendments introduced a legal duty for all persons “directing the work of others” to take reasonable steps to ensure the safety of workers and the public – in effect, it made certain safety breaches criminal issues.  Since 2004, Bill C-45 charges have been laid in only six cases.  It would seem that the CLC wants to see more Bill C-45 charges and, certainly, some Canadian unions have been actively encouraging police to charge employers criminally after serious workplace accidents. 

Of perhaps the greatest interest to employers is the section of the guide that sets out the CLC’s 10 recommendations for police during an investigation into the possibility of Bill C-45 charges.   A brief summary of these recommendations follows:

1.  Take control of the scene.  The guide emphasizes the need to avoid key evidence being lost or tampered with by ensuring that a workplace accident is treated as any other crime scene.

2.  Call for back-up.  The guide suggests that the first police officer on the scene should notify the Ministry of Labour to send an inspector, if one is not already en route.

3.  Understand the corporate structure.  The guide recommends that police understand an organization’s hierarchy by clearly identifying people by name, title and function.

4.  Identify the victims and relevant players.  The guide recommends that police specifically identify the members of the joint health and safety committee and company health and safety staff that may have relevant evidence and information.

5.  Identify relevant evidence.  The guide notes that police must understand what was being done and why it was being done at the time of the accident and encourages police to track down relevant internal correspondence, memos, emails, records of meetings, policies and procedures in order to understand what was known by the organization, the decisions that were made and by whom.  The guide also notes that some of this information may be kept and stored off-site.

6.  Nature of relevant evidence.  The guide notes some of the unique documents that police should request in the case of workplace injuries or deaths such as site plans, work plans, health and safety programs and minutes of joint health and safety committee meetings.  The guide also suggests that the police quickly identify and speak with the organization’s manager in charge of health and safety.

7.  Experts will assist after identifying relevant evidence.  The guide encourages police to contact and work with experts once they have gathered evidence, as those experts may be able to establish a link not identified by the police – i.e. an expert opinion as to why a machine malfunctioned.

8.   Fundamental questions.  The guide encourages police to ask themselves questions when investigating individuals acting on behalf of an organization such as, “what did they know?”, “when did they know it?, “what should they have known?”, “what was done about it?”

9.  No due diligence.  The guide states that police must assess the degree of corporate failure to address the hazard that resulted in the harm.

10.  Arrest/criminal charges.  The guide emphasizes that unlike traditional crimes, charges or arrests should be made only after a very thorough investigation has been completed and access to off-site evidence is in the hands of police.

One is left to wonder whether the police will be interested in taking advice from a union organization with respect to criminal investigations.  However, the recommendations contained within the CLC’s guide, at the least, provide employers with a sense of when unions will push for criminal safety charges against employers. 

To review the full guide, please click here:  http://www.canadianlabour.ca/sites/default/files/death-and-injury-at-work-en.pdf

To review the press statement, please click here:  :  http://www.canadianlabour.ca/national/news/clc-releases-guide-investigating-corporate-negligence-workplace-may-9-20th-anniversary

Union organization wants better enforcement of criminal safety offences under Bill C-45, releases guide for police

“Multi-Workplace Joint Health and Safety Committee Guidance” Released by Ontario MOL

Ontario employers who have multiple workplaces may wish to have one joint health and safety committee for several workplaces, instead of one for each workplace.  The Ontario Ministry of Labour has released guidance for employers on multi-workplace joint health and safety committees, including guidance on when the Ministry of Labour will approve such multi-site committees.

Section 9(3.1) of the Occupational Health and Safety Act states that the Ontario Minister of Labour “may, by order in writing, permit a constructor or an employer to establish and maintain one joint health and safety committee for more than one workplace or parts thereof, and may, in the order, provide for the composition, practice and procedure of any committee so established”.  The approval power has been delegated to Regional Directors with the Ministry of Labour.

That is, generally speaking, employers must obtain Ministry of Labour approval to have a multi-site joint health and safety committee.

When considering whether to approve an employer’s request for a multi-workplace joint health and safety committee, the Ministry of Labour will consider the following factors:

  • the nature of the work being done;
  • the request of a constructor, an employer, a group of the workers or the trade union or trade unions representing the workers in a workplace;
  • the frequency of illness or injury in the workplace or in the industry of which the constructor or employer is a part;
  • the existence of health and safety programs and procedures in the workplace and the effectiveness thereof; and
  • such other matters as the Ministry considers advisable.

The Guidance document states that the employer’s application for a multi-site joint health and safety committee must include a written agreement indicating that the “workplace parties” support both the request for a multi-workplace joint health and safety committee and the proposed terms of reference for that committee.  As such, if the employer’s workers do not support the concept of a multi-workplace committee, it appears that the Ministry will be hesitant to approve it.

The Guidance document states that the use of video conferencing for joint health and safety committee meetings, where committee members work at different sites, may be appropriate.

The Guidance indicates that Ministry of Labour inspectors will consult with workplace parties, where an employer has requested Ministry approval of a multi-workplace joint health and safety committee.  As such, the employer should be prepared for the Ministry inspector, when visiting the employer’s premises, to engage in broader scrutiny of the employer’s safety program and practices.

The Ministry of Labour’s “Multi-Workplace Joint Health and Safety Committee Guidance” may be accessed here.

 

“Multi-Workplace Joint Health and Safety Committee Guidance” Released by Ontario MOL

Ontario Ministry of Labour’s Summer Safety Blitz for Young Workers

According to the Ministry of Labour, new and young workers are four times more likely to be injured during their first month of employment than at any other time.

As the summer season is now upon us and many young workers are poised to begin summer jobs, the Ministry of Labour has announced an enforcement blitz that will target workplaces where new and young workers are employed.  The blitz will focus on:

  • New and young workers aged 14 to 24 years
  • New workers that are 25 years and older and who are on the job for less than six months or reassigned to a new job

The blitz will focus on ensuring that young workers:

  • Are protected by required safety measures, equipment and procedures to prevent injuries
  • Are properly instructed, trained and supervised on jobs
  • Meet minimum age requirements.

Ministry of Labour inspectors will be specifically targeting workplaces that tend to employ a high proportion of young workers such as retail stores, wholesalers, restaurants, tourism and recreational facilities, vehicle sales and service centres, hospitals, nursing homes, retirement homes, agencies that provide services for the developmentally challenged, low-rise construction projects, municipalities and workplaces involving farming operations, logging and transportation.  Inspectors will also check workplaces such as golf courses, camps, temporary agencies amusement parks, and workplaces where workers are engaged in activities such as landscaping.

For more information, see:   http://news.ontario.ca/mol/en/2012/04/safety-blitz-helps-protect-new-and-young-workers-1.html

Ontario Ministry of Labour’s Summer Safety Blitz for Young Workers

Unions Using OHSA to Attempt to Obtain Work for Members

In some recent cases at the Ontario Labour Relations Board, unions have attempted to use the provisions of the Occupational Health and Safety Act to argue that only the unions’ members can perform certain work.

The latest example is an application brought by the International Brotherhood of Electrical Workers (IBEW) arguing that only its members, licensed electricians, are entitled to insert a certain type of plug into a receptacle.

The IBEW relied on section 182 of the Construction Projects regulation under the OHSA,  which provides that:

“182 (1)  No worker shall connect, maintain or modify electrical equipment or installations unless,

(a) the worker is an electrician certified under the Trades Qualification and Apprenticeship Act; or

(b) the worker is otherwise permitted to connect, maintain or modify electrical equipment or installations under the Trades Qualification and Apprenticeship Act, the Apprenticeship and Certification Act, 1998 or the Technical Standards and Safety Act, 2000.

(2)  A worker who does not meet the requirements of clause (1) (a) or (b) may insert an attachment plug cap on the cord of electrical equipment or an electrical tool into, or remove it from, a convenience receptacle.”

The OLRB upheld an MOL inspector’s decision that the receptacle in question, which was used in solar installations, was a “convenience receptacle” and thus a non-electrician could insert the plug into the receptacle.  No special expertise was required in order to effect the connection; there was even an “audible clicking noise” to alert the worker when the connection had been effected.

One expects that the union in this case made a decision to take the case to the OLRB under the provisions of the OHSA’s Construction Regulations, rather than advance the case by a grievance under the collective agreement.  One also expects that the MOL would prefer that its inspectors not be turned into adjudicators of work-assignment disputes that are presented as safety issues.

Whether or not the practice of advancing work assignment disputes under safety legislation is part of a “trend” is not certain, but construction-industry employers in particular should watch this caselaw with interest.  Stay tuned to occupationalhealthandsafetylaw.com for updates.

IBEW Local 530 v. Gil & Sons Limited: http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii17123/2012canlii17123.html

 

Unions Using OHSA to Attempt to Obtain Work for Members

WSIB Staff Reductions Aimed at “Improving Service”, “Fiscally Responsible”: WSIB Faces $12 Billion Unfunded Liability

The Ontario Workplace Safety and Insurance Board has announced staff reductions.  The WSIB said on March 21st, 2012 that approximately 129 staff are affected and that more than 100 additional employees elected to voluntarily leave the WSIB.

On its website, the WSIB states that,

“This is part of a long-term business strategy to transform the WSIB into a more effective and efficient organization and to enhance service levels to Ontario’s workers and employers. The WSIB has launched a number of self-serve, eServices and automation improvements in the last two years and more are being implemented in the future. These tools make it easier to transact business with the WSIB and require fewer employees to perform manual tasks and administrative work.

“The WSIB’s current efforts are focused on improving service as well as being fiscally responsible. Along with automation and process improvements, outsourcing certain functions will help the WSIB stay current with modern business practices while allowing WSIB employees to focus on supporting its core business.”

 The WSIB states that it faces an unfunded liability of approximately $12 billion dollars, which is a huge number.  A recent report by the CD Howe institute says that, “Were the WSIB to discount benefit liabilities at a rate that better reflected the cost of guaranteeing benefits, it would report an unfunded liability about $7.4 billion higher, at $19.7 billion . . .” 

 

WSIB Staff Reductions Aimed at “Improving Service”, “Fiscally Responsible”: WSIB Faces $12 Billion Unfunded Liability

New Workplace Ergonomics and Electrical Safety Standards Released by CSA

The Canadian Standards Association has released two new standards dealing with occupational health and safety matters.

“CSA Z1004 – Workplace Ergonomics: A Management and Implementation Standard” is intended to help employers implement ergonomic processes and procedures. The standard is aimed at helping employers with work system design, “as well as contributing to enhanced productivity and worker well-being”.

 ”CSA Z462 – Workplace Electrical Safety – Helping Businesses Demonstrate Due Diligence in the Prevention of Electrical Injuries” provides guidance on integrating solid electrical safety programs into a company’s occupational health and safety management systems.  The CSA says that it is updated to reflect the changes contained in the 2012 Canadian Electrical Code, Part I.

Although CSA standards are not, generally speaking, “law”, they are sometimes used by Ontario Ministry of Labour inspectors in determining what are “reasonable precautions” required to comply with the general safety duty under the Ontario Occupational Health and Safety Act

New Workplace Ergonomics and Electrical Safety Standards Released by CSA