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.

“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)

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)

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.

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.

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

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

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

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.

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

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

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 . . .” 

The U.S. Occupational Safety & Health Administration has warned U.S. employers that some safety incentive programs might discourage workers from reporting injuries, and therefore might “discriminate” against workers who wish to exercise their legal right to report injuries to their employer.

OSHA notes:

“For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ‘near misses’.”

OSHA’s pronouncement on safety incentives does not legally apply to employers in Ontario.  However, Ontario employers should consider whether their safety incentive programs could discourage employees from reporting injuries to the employer and/or to the Workplace Safety and Insurance Board (resulting in potential issues for the employer with the WSIB) or could lead to a reprisal complaint under the Ontario Occupational Health and Safety Act (“I lost my safety bonus because I reported a safety incident to my employer”).

OSHA, “Employer Safety Incentive and Disincentive Policies and Practices”: http://www.osha.gov/as/opa/whistleblowermemo.html

An Ontario arbitrator has held that an ambulance attendant was entitled to be accommodated by the employer, by permitting him to “ride 3rd” in an ambulance despite a potential but not actual risk to his safety.

The ambulance attendant had been injured when he stumbled on a step at a patient’s location.  A physician medically cleared him to return to work, with the only restriction being that he could not lift more than 40 lbs.  The employee asked to be temporarily accommodated by having him be the third crew member in an ambulance in order to allow “gradual re-integration and maintenance of his ACP paramedic skills”; the employee and employer both agreed that a third crew member is not generally required in an ambulance.

The employer argued that it would be unsafe for the employee to work as a third crew member in an ambulance, due to the fact that the employee had remaining lifting restrictions.  The employer offered to accommodate the employee in “other modified duties” until he was “cleared 100% to return to regular duties”.  The employer referred to its obligation to protect the safety of workers under the Occupational Health and Safety Act.  The employer pointed to the risk of confrontations with “un-cooperative or mentally challenged, or disoriented” patients as one risk that an injured employee would face on ambulance duty.

The arbitrator held that the safety risks identified by the employer were inherent in the work of a paramedic, and that the specific safety risks to the employee were speculative and potential – not actual – safety risks.  The arbitrator held that the employer was required, under the Human Rights Code, to accommodate the grievor by allowing him to “ride 3rd” in the ambulance.

Interestingly, the arbitrator noted that an employee with a disability should be permitted to “assume risk” in order to be accommodated in the workplace.  According to the arbitrator, the employer is not permitted to refuse to accommodate solely because there is some risk to the employee from returning to work.

Brant (Country) v. OPSEU, Local 256, 2102 CarswellOnt 2856

The Ontario Ministry of Labour has released a Fact Sheet that provides guidance to workers and employers on the safety-reprisal provisions of the Ontario Occupational Health and Safety Act. Those provisions permit a worker to complain to the Ontario Labour Relations Board that he or she has been disciplined, fired or otherwise mistreated because he or she sought the protection of the OHSA.

The Fact Sheet touches on recent changes to the OHSA that impact on reprisal complaints:

-Ministry of Labour inspectors are now able to file reprisal complaints on behalf of a worker with the worker’s consent (presumably workers who are worried about their job security will be more likely to advance a reprisal complaint if the MOL filed and is monitoring it)

-small employers (those with fewer than 50 workers) can now obtain free representation from the Office of the Employer Adviser in mediations and hearings at the OLRB  dealing with reprisal complaints

-Non-union workers can now obtain free advice and representation from the Office of the Worker Adviser in reprisal proceedings at the OLRB

The Ministry of Labour Fact Sheet is online at http://www.labour.gov.on.ca/english/hs/topics/reprisal.php

An Ontario arbitrator has held that a worker was not justified in refusing to work because it was allegedly unsafe to work with his coworker, a lead hand.

The grievor, a saw operator, refused to work with the lead hand on a band saw, a two-person job.  The grievor alleged that the lead hand was unsafe because he had “aggressively grabbed” a casting and pulled it towards the saw on one occasion when the grievor had started to work on the band saw on his own.  The grievor took it upon himself to instead work alone on a saws-all.

The company suggested a number of options for the grievor, including working in another position on the band saw or working with another employee on the band saw, but the grievor refused, saying he did not consider the other employee safe as he lacked sufficient training.  The grievor instead continued to work alone on the saws-all.  The company eventually fired the grievor for insubordination due to his refusal to work on the band saw with the lead hand

The arbitrator decided that the grievor did not have a reasonable belief nor reasonable grounds to believe that working with the lead hand on the band saw was a danger to him.  Therefore, the grievor’s work refusal was not justified under the Ontario Occupational Health and Safety Act.  Although the lead hand’s attitude may have been somewhat aggressive, it was in part explained by the fact that the grievor had gone ahead to do, by himself, what was a two-person job on the band saw.

The arbitrator noted that where, for example, a “deranged person” in the workplace was threatening others or causing harm, a work refusal might be justified under the OHSA. That was not the case here, though.

Lastly, the arbitrator held that the grievor’s persistent refusal to work with the lead hand “for the flimsy reasons he gave” constituted a persistent act of insubordination, and justified discipline but not termination. The arbitrator reinstated the grievor without compensation for lost wages subject to him accepting a one-year “last chance agreement” which provided that if the grievor engaged in any type of horseplay, harassment, disruptive behavior or disrespectful behavior towards other workers, his employment would be terminated.

Haley Industries Ltd. v. U.S.W., Local 4820, 2012 CarswellOnt 3332.

The Ontario Court of Appeal has upheld a jury award of $470,000 in damages, plus a costs award of $150,000, against an employer and a supervisor for the supervisor’s sexual assault of an employee.

The employee, a commissioned salesperson with Deluxe Windows, was sexually assaulted four times by the supervisor, who was also a principal and part owner of the company.  The supervisor was convicted criminally of sexual assault and was jailed.  The employee had started employment with Deluxe Windows 18 months after moving to Canada.

At trial, the employee testified she felt shame and was afraid that she would be targeted again.  She said that she was afraid to leave home and afraid to go shopping without her cell phone; she slept with double locks on her bedroom door, and purchased an alarm system for her home.  She experienced nightmares where the supervisor was chasing her and attacking her children.  She suffered from insomnia and had difficulty getting out of bed in the morning.  She suffered a loss of sexual desire and experiences intermittent suicidal ideations.

The supervisor had argued that the employee’s past experiences, including experiences as a child, “materially contributed” to her current problems, so that the supervisor and employer should not be responsible for damages for all of her current troubles. The jury appears to have rejected that argument.

On appeal, the supervisor argued that the damages award was “grossly disproportionate” and far outside the range of awards in other cases.  The Court of Appeal noted that the jury’s damage award was high and “outside of the generally expected range”.  However, it was not plainly unreasonable or unjust. 

This decision demonstrates that employers can be liable for assaults committed on employees by supervisors, and shows the significant potential damages.  The damage award reinforces the need for employers to implement and enforce workplace violence prevention programs, particularly in light of Ontario’s Bill 168 amendments relating to workplace violence and harassment.

M.B. v. Deluxe Windows of Canada, http://www.canlii.org/en/on/onca/doc/2012/2012onca135/2012onca135.html.

Last week, WorkSafe BC and the BCAA Safety Foundation launched a website called RoadSafetyAtWork.ca as on on-line toolkit for employers of workers who are required to drive as part of their job duties.  The website contains “British Columbia’s Preferred Practices for Occupational Road Safety” which includes instructions to employers to help ensure the safety of their workers while on the road.  The Preferred Practices link sets out a 5-step plan for employers:

1. Get management to commit to safety;

2. Conduct a status review;

3. Identify risks and hazards;

4. Develop strategies; and

5. Plan for Action

Although these 5 steps sound fairly vague and general, the website provides concrete and specific ways of implementing the plan.  For example, “getting management to commit” includes guidelines around data management, communications, organizational structures, road safety policy and procedures, and even management style. Notably, the practices apply not only to employers that are in the business of driving (such as transportation) but any employer that requires any of its employees to use his or her own vehicle for business persons.

Although the website is designed as a resource for employer, it may be that WorkSafe will soon use the “preferred” practices as the measure to assess an employer’s compliance and due diligence under the Occupational Health and Safety Regulations.  Employers should therefore measure their current road safety practices against these new WorkSafe preferred practices.

WorkSafe BC (the Province’s occupational health and safety regulator) recently introduced policy guidelines which describe an employers’ responsibilities over  its internal joint health and safety committee. The guidelines also set out the factors that WorkSafe may take into account when deciding whether when an employer is exempt from the joint committee requirements set out under the Workers Compensation Act.

The Act requires that every employee establish and maintain a joint committee in each workplace with 20 or more employees. The Act allows the Board to vary  this requirement where an employer has more than one workplace. Unfortunately, the Act does not set out the factors that the Board must or could consider when deciding whether a variation should be made. The Act also does not spell out the employer’s duties or responsibilities with respect to the joint committee and the exercise of their duties in ensuring a safe workplace.

The new guidelines state that the employer must ensure that:

• the joint committee is meeting its obligations under the Act in actively identifying potential health and safety concerns;
• the joint committee has established rules and procedures for its performance of its duties and functions; and
• the joint committee is meeting at least once per month.

The message from WorkSafe is that employers must not only ensure that joint committees are created and maintained, they must vigilantly monitor their joint committees activities and ensure they are carrying out their statutorily required duties.

With respect to a variation of structure, an employer may wish to vary the requirement where, for example, it has a number of workplaces but prefers to have one joint committee only, or where the employer has different workforces with different health and safety issues across a number of workplaces. The guidelines set out the requirements for  a variation application, including injury statistics and hazard ratings and the employer’s rationale for its new proposed structure. The guidelines spell out the factors that the Board must consider in granting the variance, which include: the employer’s overall health and safety program and safety history; the nature or makeup of the workplace; the relationship between workers at various workplaces; and the practicality of communications between workers and members of the joint committee.

WorkSafe BC is recognizing that a “one size fits all” approach is not the best way to ensure compliance with the Act, particularly in today’s complex and multi-faceted workplaces. The guidelines give employers flexibility to tailor their  joint committee structures in ways that best meet their needs and the needs of their workers.

In 2011, the number of Alberta occupational health and safety prosecutions with penalties imposed nearly doubled from the previous year to 20 from 11. The total penalties of more than $3.4 million included fines, alternative penalties and victim surcharges.

The penalties for cases involving fatalities ranged between $30,000 and $431,250, with a median penalty of nearly $310,000. All sentences were the result of guilty pleas.

Most of the 20 cases involved creative sentences with alternative penalties. In 2002, Alberta’s Occupational Health and Safety legislation was amended to allow for creative sentences allowing for funds to be directed to training or education programs that promote workplace health and safety.

For more information see: http://employment.alberta.ca/whs-prosecutions

The Ontario Ministry of Labour has announced that it intends to pass a regulation that will introduce a mandatory safety awareness training program for Ontario workers.  The MOL also intends to require employers to post a Ministry-developed safety poster.

A draft of the safety poster may be viewed at http://www.labour.gov.on.ca/english/hs/pdf/poster_prevention.pdf.  The MOL indicates that it will eventually be mandatory to display the final version of the poster in workplaces.  Feedback may be given online at http://www.labour.gov.on.ca/english/hs/prevention/consultations/poster.php#feedback. 

The poster summarizes key rights and obligations of workers, as well as obligations of employers and supervisors. 

The MOL has also released at draft worker safety awareness workbook called “A Worker’s Guide in 4 Steps” (http://www.labour.gov.on.ca/english/hs/pdf/workbook.pdf).   It is a 22-page guide for workers that includes quiz questions. 

Finally, the MOL has released, in draft, “An Employer Guide to the Health and Safety Awareness Program for Workers” (http://www.labour.gov.on.ca/english/hs/pdf/employer_guide.pdf).  It is a 2-page guide to the employer’s role in providing safety awareness training to workers.

It appears from the MOL website that the employee workbook and employer guide will eventually be used as materials for a mandatory health and safety awareness training program for workers.  The MOL notes on its website that, “A regulation to make the programs mandatory will be required, and stakeholders will be consulted.”  As such, it appears that it will be a number of months, and possibly longer, before the mandatory training requirement becomes law.

Because it appears that the MOL will require the use of its materials, or possibly equivalent materials, in the mandatory worker training, the MOL’s draft materials will be of interest to employers.  Feedback on the employee workbook and employer guide may be provided online at http://www.labour.gov.on.ca/english/hs/prevention/consultations/workbook.php#feedback.

An Ontario labour arbitrator has decided that a hospital’s lawyer’s investigation report into a bullying/harassment complaint was not privileged, so that the union was entitled to a copy.

The North Bay General Hospital had retained a lawyer to investigate a complaint that an employee had bullied and harassed other staff.  The lawyer-investigator concluded that the employee had indeed engaged in bullying and harassment.  The hospital disciplined the employee, and the union grieved the discipline.  The union asked the labour arbitrator to order the hospital to turn over a copy of the lawyer-investigator’s report.  The employer argued that the report was lawyer-client (also called “solicitor and client”) privileged and thus the union was not entitled to it.

The arbitrator decided that the investigation report was not privileged.  She noted that the investigation report stated that the lawyer was retained “as an independent investigator” to “investigate the concerns” of bullying and harassment – not as a lawyer to give legal advice.  Thus the hospital was required to give a copy of the report to the union. The arbitrator stated:

“I see no reason to distinguish between [lawyer and non-lawyer investigators] if the purpose for which they were retained is the same, of investigating events to make findings of fact.  I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer.  There are no facts before me upon which I could conclude that Mr. Robinson was retained for any other purpose than investigating the allegations against the Grievor.  Accordingly, I find Mr. Robinson’s communications with the Hospital in respect of his role as investigator of these allegations is not protected by solicitor and client privilege.”

This decision is a reminder to employers that if they wish to claim lawyer-client privilege over a lawyer’s investigation report into a workplace issue (such as a violence or harassment issue under Bill 168, or another safety issue), then the purpose of the lawyer’s involvement should be to provide legal advice, not solely to investigate.  Lawyer-investigators should consider sending the employer a retainer letter stating that the purpose of the lawyer’s involvement is to provide legal advice, and the purpose of the investigation is to gather facts in order for the lawyer to provide that legal advice.  The lawyer should follow up the investigation with a written legal opinion flowing from the results of the investigation; that way, the investigation report is much more likely to be privileged.

North Bay General Hospital v Ontario Nurses’ Association, 2011 CanLII 68580 (ON LA): http://www.canlii.org/en/on/onla/doc/2011/2011canlii68580/2011canlii68580.html

The Ontario MOL has created a series of podcasts on health and safety.

On its website, the MOL says that “These podcasts are also aimed at those who are visually impaired and at listeners with low literacy skills.”

The MOL has made the podcasts, or “episodes”, downloadable through its website and through iTunes.  They can also be streamed.

Available podcasts deal with MOL blitzes, fall hazards, infection prevention in healthcare, musculoskeletal disorders and workers’ rights under the OHSA.

The MOL says that it intends to add new podcasts every two weeks.

See the MOL’s website for more information: http://www.labour.gov.on.ca/english/podcasts/archive.php

On December 16th, the Ontario Ministry of Labour announced the following:

• The MOL said that it intends to propose a new regulation under the Occupational Health and Safety Act that would enable the Office of the Worker Adviser and the Office of the Employer Adviser to provide “support” for workers and small businesses in relation to reprisal complaints under the Occupational Health and Safety Act.
• The Ontario Labour Relations Board and the MOL have “mapped out” a process for quickly resolving OHSA reprisal complaints brought by workers whose employment has been terminated, including the role of MOL inspectors.
• The MOL has created a poster that explains the basic rights and responsibilities of workplace parties under the OHSA.   The MOL said that the poster will soon be available in different languages for consultation with stakeholders.  After the poster has been finalized, employers may be legally required to display it in workplaces.
• The MOL has prepared a “health and safety awareness workbook” for workers and an employer guide to the health and safety program for workers.  The MOL is also consulting on the workbook and guide.
• The Minister intends to appoint two new minister’s advisory committees in 2012, one for small business and another for vulnerable workers.  The creation of these committees suggests that new resources may be coming in future for small businesses and possibly new resources or protections for “vulnerable workers”.
• The transfer of responsibility for funding and monitoring the Health and Safety Associations from the WSIB to the Ministry of Labour is being prepared.
• A permanent Prevention Council will soon be appointed, including representatives of business and labour and other health and safety experts.  An interim Prevention Council has been in place since February 2011.

While none of the above could be described as “major” changes, this announcement shows that the MOL and Ontario’s new Chief Prevention Officer will likely be active implementing changes to Ontario’s health and safety enforcement system in the near future.  Stay tuned for more updates.

In March 2011, the U.K. government retained Professor Ragnar E. Löfstedt of Kings College London to conduct a review of its health and safety laws. 

Professor Löfstedt conducted a detailed six month review and presented his recommendations to the U.K. Parliament in early November 2011.

Although his research concluded that there was no need to radically alter the U.K.’s current health and safety legislation, Professor Löfstedt did discover that the rising number of civil suits by employees with respect to health and safety issues was of significant concern to employers.  This was especially true with respect to cases involving strict liability offences – i.e. cases where employees were being awarded compensation even though the employer had done everything that was “reasonably practicable” and foreseeable in order to prevent the injury or accident.  As Professor Löfstedt stated in his report, “…awarding compensation on the basis of a technical breach where there is no opportunity for the [employer] to be aware of the danger, and no actions could have been taken to prevent the accident, clearly has the potential to stop employers taking a common sense approach to health and safety.” 

As a result of this finding, Professor Löfstedt recommended that a review be conducted of all strict liability provisions in the U.K.’s health and safety laws and that the provisions be modified either by adding a “reasonably practicable” defence for employers, or by removing the possibility of  civil liability attaching to the provisions.

Although due to provincial workers’ compensation legislation, most Canadian workers are prohibited from suing their employers for losses suffered due to workplace injuries, one wonders whether this review is recognition that in some countries, workplace safety laws have sometimes been applied in ways that are unfair to employers, imposing liability where the employer could not have done anything different.

 For further information, see Professor Löfstedt’s report: http://www.dwp.gov.uk/docs/lofstedt-report.pdf

There is no generally-accepted national standard for how employers – and employees  – should deal with mental health issues in the workplace.  The Canadian Standards Association is attempting to change that.

 According to the Mental Health Commission of Canada, mental illnesses and mental health issues are the leading cause of short- and long- term disability in the country.  The cost of dealing with these issues is in the range of $51 billion per year, with almost $20 billion of that amount coming from workplace losses.  However, assistance is on the way. 

 The Canadian Standards Association has announced a public consultation period with respect to its development of a new, voluntary National Standard for Psychological Health and Safety in the Workplace.  The goal of the standard is to provide employees and employers with guidance and tools to assist them in improving the psychological health and safety of employees in the workplace.  The CSA says that the implementation of the standard is aimed, in part, at assisting employers by helping them to lower rates of absenteeism, workplace injuries, disability costs and legal risk while also reducing turnover, enhancing recruitment and increasing employee engagement.   The consultation period runs until December 31, 2011.

For background information, see the Mental Health Commission of Canada’s backgrounder:  http://www.mentalhealthcommission.ca/SiteCollectionDocuments/Workforce_2011/Workforce-Standard-Backgrounder-FINAL.pdf

 For further information from the Canadian Standards Association, including information on how to participate in the public consultation, see:  http://www.csa.ca/cm/ca/en/news/article/public-consultation-workplace-mental-health-standard

https://review.csa.ca/opr/opr_list.asp

The Alberta government is now posting employers’ safety records online.  Alberta has launched an open-to-the-public website showing companies’ lost-time claims, estimated number of workers, lost-time claim rates, number of fatalities (from motor vehicle accidents, workplace incidents and occupational diseases), back to 2005.

The website also posts industry and province-wide lost time claim rates, which allow readers to compare companies’ safety performance.  Further, the website identifies whether a company has a Certificate of Recognition (which certifies that the company’s health and safety management system has been evaluated by a certified auditor and meets a provincially-recognized standard).

The information currently available online is basic in nature, and does not include details of any particular incident or actual investigation reports or safety Orders. However, it is likely that the level of detail will increase in future, allowing the public to ultimately see information describing the nature and extent of any specific safety concerns or issues.

For more information see:  http://alberta.ca/acn/201110/314444B4C2E33-AA65-16AC-E96BCBABAF831048.html

The Saskatchewan Court of Queen’s Bench has overturned a Saskatoon transit driver’s traffic court conviction for failing to wear his seatbelt while on the job.  The driver claimed that his refusal was justified due to the risk of assaults by passengers, which he claimed was a “growing nationwide epidemic” that he and a number of his colleagues had experienced firsthand.

 At issue was a contest between a Saskatoon employee policy and the province’s Traffic Safety Act.  The employee policy states that all public employees must be buckled in whenever they are behind the wheel of a city vehicle, while the Traffic Safety Act exempts a bus driver from the requirement to wear a seatbelt if he or she has reason to believe the seatbelt might put them at risk of injury.

 The Crown argued that under the Traffic Safety Act exemption, the driver should be permitted to unbuckle only when he or she faces a specific  risk of injury from a specific person or circumstance – for example, a passenger who suddenly becomes violent.  The driver argued the exemption is broader and should be extended to situations where drivers face less-specific threats, such as continuous exposure to safety threats such as assaults.   The driver argued that once drivers have identified a specific risk of injury, it is often too late for them to remove their seatbelts in order to defend themselves, so that drivers should be permitted to not buckle up at all.

 The Court agreed with the driver and found that the exemption in the Traffic Safety Act should be interpreted broadly.  In overturning the driver’s conviction, finding him not guilty of the seatbelt charge, the Court further concluded that the driver’s decision not to wear his seatbelt was a reasonable reaction to the experiences of himself and others.

 Read the decision at:  http://www.canlii.org/en/sk/skqb/doc/2011/2011skqb390/2011skqb390.pdf

The Ontario Ministry of Labour’s November 2011 workplace inspection blitz will target racking and storage facilities at industrial workplaces.  Ministry of Labour inspectors will be visiting industrial workplaces in Ontario to inspect racking and employer procedures for working around racking.  Among other things, inspectors will be examining whether racking and storage systems have been properly selected and installed and that any required pre-start health and safety reviews of the systems have been conducted.  Inspectors will also be focusing on whether the systems are being maintained in a good state of repair and that any damaged components have been promptly replaced or repaired.  Further, inspectors will be checking to ensure that aisles are clear of obstructions, pallets are being maintained in good condition, lift trucks are being operated safety and workers have been provided with required training.   For more information, see the Ministry of Labour’s Alert:  http://www.labour.gov.on.ca/english/hs/sawo/pubs/fs_rackingstorage.php

On Thursday last week, the B.C. government announced that it will amend the B.C. Workers Compensation Act to extend coverage for mental stress claims. Employees who suffer from a mental stress condition arising out of the workplace will now be eligible to receive workers’ compensation benefits. Currently only those who suffer from an “acute reaction to a sudden and traumatic event” are eligible. The change will now benefit those who suffer mental stress as a result of on-going or cumulative events in the workplace.

This change will bring B.C. in line with the law in other provinces, including Quebec, Saskatchewan and Alberta, and the three northern territories.

Several studies have found that stress is the primary reason for absenteeism from the workplace. Many employees claim that that stress is caused by their work environment: unmanageable workloads, overly-demanding superiors, or tense relations between co-workers. Undoubtedly this amendment will significantly increase the number of workers’ compensation claims that are made . In fact, the Labour Minister has estimated that WorkSafe BC’s yearly costs will increase between $10 million and $18 million.

The B.C. government has yet to announce when the proposed new legislation will be tabled, or what the amendment will look like. Stay tuned …