1. careers
2. resume writing and advice

from the editors of
Insider
www.OHSInsider.com
INJURED WORKERS: How to Comply
Volume 8 - Issue 9
SEPTEMBER 2012
with Return-to-Work Requirements
FEATURES
Injured Workers
1
How to comply with employers'
return-to-work requirements.
Know the Laws of Your Province (p. 5)
Emergency Planning
1
8 tips for better emergency preparedness
and response.
More Emergency Planning Resources (p. 16)
REGULARS
Around the Provinces
8
OHS Month in Review
9
Case of the Month
9
Definitions of 'Violence' in the OHS Laws
AB Court Says Employer Not Liable for
Worker’s Drunk Driving Death
continued inside ON PAGE 2
Safety Professionals
17
Environmental Compliance
19
Winners & Losers
20
Communicating the OHS Message in a
Changing Environment, Part 2
Handle Odour Complaints with
Management & Response Plan
When Is Environmental Training Adequate
to Meet Due Diligence Standards?
TALK TO US
The Insider's goal is to help safety
professionals do their jobs better and
more easily. So tell us what you need!
For example, are you unsure what the
OHS laws require you to do for a certain
hazard? Need help training supervisors
on handling unsafe work refusals?
Share your pressing safety compliance
problems with us by calling (203) 9876163 or emailing robinb@bongarde.com
Robin L. Barton
Editor
I
n an ideal world, your OHS program would prevent workers from ever getting
injured or ill on the
job. But despite your
EXECUTIVE SUMMARY
best efforts, workers
The
Law:
Employers
have a general duty to take all reasonable steps to ensure
are still occasionally
the health and safety of their workers.
going to get hurt or
The Problem: Despite employers’ best efforts, workers may still get injured or
ill. And they may need assistance in returning to work once they’ve recovered.
sick. And when they
7 Things to Do to Comply with Return-to-Work Requirements:
do, the best thing
1. Stay in contact with injured workers while they’re out;
you can do is help
2. Give the workers’ comp board the information it requests on a worker’s
return to work;
them heal and return
3. If the injured worker is able to return to his pre-injury position, offer him
to work as quickly as
that job back;
4.
If you can’t offer the worker his pre-injury position, offer him alternative
possible. Supporting
employment that’s comparable to his prior position;
your workers’ return5. If the worker can’t perform the essential duties of his old position, offer him
suitable work that he has the skills and is medically able to do and doesn’t
to-work efforts and
pose a health or safety hazard;
6. Accommodate the work or the workplace to suit the returning worker’s needs
easing their transition
to the extent such accommodations don’t pose an undue hardship; and
back into the workplace
7. Don’t fire a worker because he got injured or ill.
not only makes good
EMERGENCY PLANNING: 8 Emergency
Preparedness & Response Tips
E
mergencies may be rare but when they occur, they can be catastrophic.
Just look at the
recent
sawmill
EXECUTIVE SUMMARY
explosions and fires in
The Law: The OHS, environmental and transportation of dangerous goods
BC and the shopping
laws require employers to prepare for various kinds of emergencies in the
workplace and have plans for how to respond to emergencies when they
centre parking garage
occur.
collapse in Ontario
8 Emergency Preparedness & Response Tips:
for a few examples.
1. Plan for a wide variety of emergencies that your workplace could
reasonably face;
To minimize injuries,
2. Make sure that key players in your emergency plan know and are trained
on their roles;
fatalities and property
3. Include contractors in your emergency planning;
damage, it’s critical
4. Address the needs of any disabled workers in your emergency plan;
that your company
5. Make sure that emergency exits are accessible;
6. Coordinate emergency planning with local authorities;
effectively plans for
7. Conduct practice drills of emergency procedures and revise the emergency
emergencies and how
plan based on the results; and
8. Plan for the impact of an emergency on your company’s business
to respond to them
operations.
by developing and
continued inside ON PAGE 14
2
SAFETY COMPLIANCE
INSIDER
business sense, but also is required by law. We’ll explain the law on return to
work and what you need to do to comply with an employer’s return-to-work
duties.
Board of Advisors
Andrew Cooper, CHSC
University of Alberta
Edmonton, AB
THE LAW ON RETURN TO WORK
The chart on page 5 spells out the general employers’ return-to-work duties
under the OHS and workers’ comp laws in each jurisdiction. There are two
approaches:
Cheryl A. Edwards
Heenan Blaikie LLP
Toronto, ON
Norman A. Keith, CRSP
Gowling Lafleur Henderson LLP
Toronto, ON
7 Specific Duty Jurisdictions
Seven jurisdictions—Fed, MB, NL, NS, ON, PE and YT—specifically impose duties
Ken Krohman
MacKenzie Fujisawa
Vancouver, BC
on employers when it comes to an injured worker’s return to work. With one
exception, this duty is included in the jurisdiction’s workers’ compensation law and/
Fred C. Leafloor, CRSP, CHSC
Safety First Industrial Safety Services
Dartmouth, NS
or regulations. Because there’s no federal workers’ comp regime, the return-to-work
David G. Myrol
McLennan Ross LLP
Edmonton, AB
Canada Labour Code and Canada Labour Standards Regulations. These jurisdictions
duties for federally regulated employers are included in the OHS law, that is, the
generally impose two broad duties on employers (which we’ll discuss in detail
below):
Yvonne O’Reilly, CRSP
O’Reilly Health & Safety Consulting
Toronto, ON
•
Wayne Pardy, CRSP
Q5 Systems
St. John’s, NL
Duty to cooperate with the return-to-work process, such as by staying in touch
with the worker while he’s out and providing the workers’ comp board with
any requested information; and
Barbara Semeniuk, BSc, CRSP
Purcell Enterprizes
Edmonton, AB
•
Duty to re-employ the injured worker when he’s able to return to the
workplace.
7 Implied Duty Jurisdictions
In the remaining seven jurisdictions—AB, BC, NB, NT, NU, QC and SK—employers
Your Plain Language Guide to C-45, OHS & Due Diligence
www.OHSInsider.com
don’t have specific return-to-work duties under the OHS or workers’ comp laws.
EDITOR:
ROBIN L. BARTON
But across Canada, employers have a duty under the human rights laws not to
Managing editor:
GLENN S. DEMBY, ESQ.
discriminate based on disability. This discrimination ban means employers can’t
fire a worker because he got injured on the job and they must accommodate an
LAYOUT:
TRACY BRIGHTMAN
injured worker to allow him to return to work. Thus, employers in these jurisdictions
essentially have a duty to help an injured worker return to work.
PRESIDENT AND CEO:
ROB RANSOM
Safety Compliance Insider is published by Bongarde Holdings Inc. and is
intended for in-house use only – commercial reproduction is a violation of
our copyright agreement.
RETURN TO WORK REQUIREMENTS
This publication is designed to provide accurate and authoritative information
on the subject matter covered. It is sold with the understanding that
the publisher is not engaged in rendering legal, accounting or other
professional services. If legal or other expert assistance is required, the
services of a competent professional should be sought.
There’s much overlap between the specific employer return-to-work
requirements spelled out in some workers’ comp laws and the general duties
imposed by human rights law, especially when it comes to the duty to reemploy an injured worker. So complying with the specific requirements from
the seven jurisdictions noted above will generally help employers across the
country satisfy their obligations when it comes to helping an injured worker
return to work. Here’s a detailed look at those requirements.
Publications Mail #40065442.
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3
Duty to Cooperate
In NL, ON, PE and YT, the workers’ comp law requires an
employer to cooperate in the return to work process. Ontario’s
requirement is typical and says that the employer of an injured
worker must co-operate in the worker’s early and safe return
to work by:
•
Contacting the worker as soon as possible after the injury
occurs and maintaining communication throughout the
period of his recovery and impairment;
•
Attempting to provide suitable employment that’s
available and consistent with the worker’s functional
abilities and that, when possible, restores his pre-injury
earnings;
•
Giving the workers’ comp board such information as it
may request concerning the worker’s return to work;
and
•
Doing anything else as may be required by the
regulations.
It’s a good idea for all employers to follow the above general
guidelines when a worker gets injured or ill. For example,
studies have shown the importance of maintaining contact
with an injured worker while he’s out. An injured worker’s
recovery may be hampered if he feels cut off or abandoned
by his employer. So ensure that someone, such as the worker’s
supervisor, the safety coordinator or a representative from
the HR department, stays in regular contact with the injured
worker during his recovery.
Duty to Re-Employ Worker
All seven jurisdictions with specific return-to-work requirements
for employers impose a duty to re-employ the injured worker
when he’s able to return to the workplace. There are several
elements of this duty:
Who the duty applies to. The duty to re-employ applies
to workers who were absent due to an injury or illness and
who, when they got injured or sick, had been employed by
the employer continuously for at least a year. So if an injured
worker had been on staff for only a few months when he got
hurt, you’re not obligated to re-employ him once he’s better.
The workers’ comp laws typically include exclusions from
the duty to re-employ, such as certain:
•
Employers, such as those who regularly employ fewer
than 20 (NL, NS, ON, PE, YT) or 25 (MB) employees;
•
Industries, such as construction; and
•
Workers, such as volunteers or casual emergency
workers.
When the duty is triggered. The duty to re-employ
is generally triggered when the employer is notified by
the worker or the workers’ comp board that the worker is
medically fit to return to work in some capacity.
When the duty ends. The re-employment duty doesn’t
last forever. For example, for federally regulated employers,
it ends 18 months from the date the worker is fit to return to
work. The other jurisdictions end the duty on the earliest of
the following dates:
•
Two years after the date of the accident or injury (MB,
NL, NS, ON, PE, YT);
•
Six months after the worker’s able to perform the
essential duties of his pre-injury job or other suitable
work (MB);
•
One year after the worker’ medically able to perform
the essential duties of his pre-injury job (NL, ON, YT); or
•
The date on which the worker would have retired (MB),
reaches the age at which a worker becomes entitled to
benefits under the Old Age Security Act (YT) or reaches
age 65 (NL, NS, ON, PE).
In addition, in NS, PE and YT, if an employer offers to reemploy an injured worker once he’s recovered and the worker
rejects that offer, the employer is no longer bound by the
duty to re-employ as it relates to that worker.
Work to be provided. When an injured worker is able
to return to work, there are generally three possible types of
work you must offer him:
•
Pre-injury job. If the worker is able to perform the
“essential duties” of his pre-injury job, you must offer to
re-employ him in his prior position.
•
Alternative employment. If you can’t reinstate the
worker in his prior position, you must offer him
“alternative employment,” which is generally defined
as employment comparable to his pre-injury position in
terms of the nature of the work, earnings, qualifications,
opportunities and other respects.
September 2012 © Bongarde
4
Results of Poll on
Return-to-Work Programs
In a recent poll on OHSInsider.com, we asked you
to rate your company’s return-to-work program.
Here are the results:
XX Good—we do a good job getting workers back
on the job but could do better. (54%)
XX Excellent—we do a great job of helping workers
get back to work quickly and safely. (32%)
XX Fair—we do what we’re required to do by law
and not much more. (7%)
XX What return-to-work program? (7%)
•
Suitable work. If the worker is medically able to work
but not to perform the essential duties of his pre-injury
job, you must offer him the first opportunity to accept
“suitable work” that becomes available. “Suitable work”
is generally considered work that the worker has the skills
to perform, is medically fit to perform and which doesn’t
pose a health or safety hazard to him or his co-workers.
If the employer and injured worker disagree about his fitness
to return to work and the nature of the work he’s medically
able to perform, the workers’ comp board will intervene and
make those determinations.
Duty to accommodate. The workers’ comp laws codify the
duty to accommodate established by the human rights laws.
That is, they require an employer to accommodate the work or
the workplace to suit the needs of the returning worker to the
extent that such accommodations don’t cause the employer
undue hardship. The duty to accommodate applies to all
three types of work you may have to offer a worker returning
from an injury. So if a worker can return to his pre-injury job
provided you modify his work station, you’ll have to make the
necessary changes unless they’re so costly or would so radically
alter the workplace that they constitute an undue hardship.
Ban on Firing Because of Injury
In addition to imposing the above duties on employers,
the workers’ comp laws bar employers from firing workers
because they’ve become injured or ill. In fact, if an employer
re-hires an injured worker and then fires him within six
months of his return to the workplace, there’s a presumption
that the employer did so because of the injury and thus didn’t
fulfil its re-employment duties. The presumption’s purpose
is to prevent employers from pretending to satisfy the duty
to re-employ an injured worker by taking him back with the
intention of letting him go after a short time.
The workers’ comp law does allow employers to rebut this
presumption by proving that the termination wasn’t tied to
the injury or illness. For example, if you rehired an injured
worker and then fired him four months later because he
stole company property, threatened to kill his supervisor or
committed a serious safety infraction, you’d likely be able to
rebut the presumption.
Insider Says: For more information on properly disciplining
workers and avoiding reprisal claims, go the OHS Insider’s
Discipline & Reprisals Compliance Centre.
Penalties for Violations
Violating the above duties can be costly. For example, the
workers’ comp laws generally say that if the workers’ comp
board determines that an employer didn’t fulfill its returnto-work obligations to a worker, it may impose a penalty on
the employer up to the amount of the worker’s net average
earnings for the 12 months immediately before the worker
went out due to his injury or illness.
BOTTOM LINE
Insider Says: For a look at how courts determine what’s
undue hardship, see “Winners & Losers: When Is Changing
Workers’ Duties So They Can Return from Injury ‘Undue
Hardship’?” April 2009, p. 16. For information on the worker’s
role, see “Recent Case Reinforces Worker Duty to Cooperate
in Accommodation Process.”
Neither an employer nor its workers want workplace injuries
to occur, but they happen. And when they do, it’s incumbent
on employers to step up and assist the injured worker both
while he’s out recovering and when he’s ready to return to the
workplace in some capacity.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
5
OHS Code 2009
KNOW THE LAWS OF YOUR PROVINCE
Here are the general employers’ return-to-work duties under the OHS and workers’ comp laws in your jurisdiction:
FED
AB
BC
MB
NB
NL
NT/NU
NS
Canada Labour Code:
1. Subject to the regulations, an employer must, when reasonably practicable, return a
worker to work after his absence due to work-related illness or injury [Sec. 239.1(3)].
2. An employer may assign to a different position, with different terms and conditions of
employment, any worker who, after an absence due to work-related illness or injury,
is unable to perform the work he performed prior to the absence [Sec. 239.1(4)].
Canada Labour Standards Regulations:
1. The employer’s obligation to return a worker to work begins on the date that,
according to a certificate from the qualified medical practitioner authorized by the
plan the employer subscribes to, the worker is fit to return to work with or without
qualifications and ends 18 months after that date [Sec. 34(1)].
2. When an employer can’t return a worker to work within 21 days from the date of
receipt of the above certificate, the employer must, within those 21 days, notify in
writing the worker and, if the worker is subject to a collective agreement, the trade
union representing him, whether return to work is reasonably practicable and, if not,
the reasons why it isn’t [Sec.34(3)].
OHS and workers’ comp laws don’t include specific employer return-to-work duties.
OHS and workers’ comp laws don’t include specific employer return-to-work duties.
The Workers’ Compensation Act:
1. An employer must offer to re-employ a worker who:
a. has been unable to work as a result of an accident;
and
b. on the day of the accident, had been employed by
the employer for at least 12 continuous months on
a full-time or regular part-time basis [Sec. 49.3(1)].
2. The re-employment duty doesn’t apply to:
a. casual emergency workers, learners, volunteers,
declared workers or workers in a work experience
program;
b. an employer who employs fewer than 25 full-time
or regular part-time workers, as determined by the
board; or
c. an employer, worker or industry excluded by
regulation [Sec. 49.3(2)].
3. The employer is obligated under this section until the
earliest of the following dates:
a. the second anniversary of the day of the accident;
b. six months after the worker’s medically able to
perform the essential duties of his pre-accident
employment or other suitable work, as determined
by the board; or
c. the date on which the worker would have retired
from that employment, as determined by the
board [Sec. 49.3(3)].
4. The employer must accommodate the work or the
workplace to the needs of the worker to the extent
that the accommodation doesn’t cause the employer
undue hardship [Sec. 49.3(4)].
5. When the worker’s medically able to perform the
essential duties of his pre-accident employment, the
employer must:
a. offer to re-employ the worker in the position he
held on the day of the accident; or
b. offer to provide the worker with alternative
employment of a nature and at earnings
comparable to his employment on the day of the
accident [Sec. 49.3(5)].
6. When the worker’s medically able to perform suitable
work but is unable to perform the essential duties of
his pre-accident employment, the employer must offer
the worker the first opportunity to accept suitable
employment that becomes available with the employer
[Sec. 49.3(6)].
OHS and workers’ comp laws don’t include specific employer return-to-work duties.
Workplace Health, Safety and Compensation Act:
1. An employer must co-operate in the early and safe
return to work of a worker injured in its employment
by:
a. contacting the worker as soon as possible after
the injury occurs and maintaining communication
throughout the period of his recovery;
b. providing suitable employment that’s available and
consistent with the worker’s functional abilities
and that, where possible, restores his pre-injury
earnings;
c. giving the commission the information the
commission may request concerning the worker’s
return to work; and
d. doing other things that may be required in the
regulations [Sec. 89(1)].
2. An employer of a worker who has been unable to work
as a result of an injury and who, on the date of the
injury, had been employed continuously for at least
one year by the employer must offer to re-employ the
worker in accordance with this section [Sec. 89.1(1)].
3. This duty applies only to an employer and a worker
who had been in an employment relationship for a
continuous period of one year immediately prior to
the date of the worker’s injury [Sec. 89.1(2)]. It doesn’t
apply to an employer who regularly employs fewer
than 20 workers [Sec. 89.1(3)].
4. When a worker’s medically able to perform the
essential duties of his pre-injury employment, an
employer to whom this section applies must:
a. offer to re-employ the worker in the position that
he held on the date of injury; or
b. offer to provide the worker with alternative
employment of a nature and at earnings
comparable to his employment on the date of
injury [Sec. 89.1(5)].
5. When a worker’s medically able to perform suitable
work but is unable to perform the essential duties of
his pre-injury employment, the employer must offer
the worker the first opportunity to accept suitable
employment that may become available with the
employer [Sec. 89.1(6)].
6. An employer must accommodate the work or the
workplace for the worker to the extent that the
accommodation doesn’t cause the employer undue
hardship [Sec. 89.1(7)].
7. An employer’s obligated under this section until the
earliest of:
a. two years after the date of disability;
b. one year after the worker’s medically able to
perform the essential duties of his pre-injury
employment; and
c. the date on which the worker reaches age 65 [Sec.
89.1(8)].
OHS and workers’ comp laws don’t include specific employer return-to-work duties.
Workers’ Compensation Act:
1. An employer of a worker must offer to re-employ a
worker when he:
a. has been unable to work as a result of the injury;
and
b. had been employed by the employer, at the date of
the injury, for at least 12 continuous months [Sec.
90].
2. An employer, immediately upon receiving notice that
a worker is able to perform the essential duties of his
pre-injury employment, must offer to reinstate him
in the position he held on the date of the injury [Sec.
97(1)].
3. When the Board is satisfied that the employer is
unable to reinstate the worker to his prior position,
the employer must offer to provide the worker with
“alternative employment” (that is, employment that’s
comparable to the worker’s pre-injury work in nature,
earnings, qualifications, opportunities and other
aspects) with the employer [Sec. 97(2)].
4. When the Board is satisfied that the employer is
unable to reinstate the worker to his prior position
or to provide alternative employment, the employer
must offer to provide the worker with “suitable work”
(that is, work which the worker has the necessary skills
to perform, is medically able to perform and which
doesn’t pose a health or safety hazard to the worker or
any co-workers) [Sec. 97(3)].
5. An employer, immediately upon receiving notice that
a worker is able to perform suitable work, must offer
to the worker the first opportunity to accept suitable
work that may become available with the employer
[Sec. 98(1)].
6. When:
a. an employer has provided a worker with suitable
work;
b. the worker is or becomes able to perform work
that’s more comparable to his pre-injury work; and
c. work that’s more comparable to his pre-injury work
is available with the employer,
the employer must offer to the worker the work that’s
more comparable to his pre-injury work [Sec. 98(2)].
7. The employer must accommodate the work or the
workplace to the needs of a worker who requires
accommodation as a result of the injury to the extent
that the accommodation doesn’t cause the employer
undue hardship [Sec. 91(1)].
8. When an employer has offered re-employment to
a worker and the worker has refused that offer, the
employer’s no longer bound by the duty to re-employ
with relation to that worker [Sec. 93].
9. An employer is obligated as described above until the
earlier of the day that:
a. is two years after the date of the injury to the
worker; or
September 2012 © Bongarde
6
ON
PE
b. the worker attains the age of 65 years [Sec. 92(1)].
10.When an employer re-employs a worker less than
six months before the time described in 9(a) above,
it’s obligated for six months after the date of reemployment [Sec. 92(2)].
11.The above duties don’t apply to:
a. any employer that, in the opinion of the Board,
regularly employs fewer than 20 workers or such
other number of workers less than 20 as the Board
may prescribe by regulation;
b. any class or subclass of employers or workers
exempted by the Board by regulation by reason of
the nature of the industry; or
c. the construction industry, unless included by the
Board by regulation [Sec. 89(1)].
Workplace Safety and Insurance Act, 1997:
1. The employer of an injured worker must co-operate in
the early and safe return to work of the worker by:
a. contacting the worker as soon as possible after
the injury occurs and maintaining communication
throughout the period of his recovery and
impairment;
b. attempting to provide suitable employment
that’s available and consistent with the worker’s
functional abilities and that, when possible,
restores his pre-injury earnings;
c. giving the Board such information as the Board
may request concerning the worker’s return to
work; and
d. doing such other things as may be required [Sec.
40(1)].
2. The employer of a worker who has been unable to
work as a result of an injury and who, on the date of
the injury, had been employed continuously for at least
one year by the employer must offer to re-employ the
worker [Sec. 41(1)].
must offer the worker the first opportunity to accept
suitable employment that may become available with
the employer [Sec. 41(5)].
6. The employer must accommodate the work or the
workplace for the worker to the extent that the
accommodation doesn’t cause the employer undue
hardship [Sec. 41(6)].
7. The employer is obligated as described above until the
earliest of:
a. the second anniversary of the date of injury;
b. one year after the worker’s medically able to
perform the essential duties of his pre-injury
employment; and
c. the date on which the worker reaches age 65 [Sec.
41(7)].
Workers’ Compensation Act:
1. An employer must cooperate in the early and safe return
to work of a worker injured in his employment by:
a. contacting the worker as soon as possible after the
injury occurs and maintaining communication;
b. providing suitable employment that’s available and
consistent with the worker’s functional abilities
and that, where possible, restores his pre-injury
earnings;
c. providing the Board the information it may request
concerning the worker’s return to work; and
d. doing such other things as required by the
regulations during the period of the worker’s
recovery [Sec. 86(1)].
2. The duty to cooperate:
a. applies only to accidents that occurred on or after
the date this section comes into force; and
b. doesn’t apply to the construction industry unless it’s
included by the Board by regulation [Sec. 86(10)].
3. When a worker:
a. has been unable to work as a result of an accident;
and
3. The duty to re-employ doesn’t apply to employers
who regularly employ fewer than 20 workers or such
classes of employers as may be prescribed [Sec.
41(2)].
4. When the worker’s medically able to perform the
essential duties of his pre-injury employment, the
employer must offer to:
a. re-employ the worker in the position that he held
on the date of injury; or
b. provide the worker with alternative employment
of a nature and at earnings comparable to his
employment on the date of injury [Sec. 41(4)].
5. When the worker’s medically able to perform suitable
work (although he’s unable to perform the essential
duties of his pre-injury employment), the employer
b. has been employed by the employer, at the date of
the injury, for at least 12 continuous months
the employer must offer to re-employ the worker [Sec.
86.1].
4. When a worker’s medically able to perform the
essential duties of his pre-injury employment, the
employer must offer to reinstate him in the position
that he held on the date of the accident [Sec. 86.3(1)].
5. When the Board’s satisfied that the employer’s unable
to reinstate the worker to his prior position, the
employer must offer “alternative employment” (that
is, employment that’s comparable, as determined by
the Board, to the worker’s pre-injury work in nature,
earnings, qualifications, opportunities and other
respects) to the worker [Sec. 86.3(2)].
6. When a worker’s medically able to perform suitable
work but is unable to perform the essential duties
of his pre-injury employment, the employer must
offer to the worker the first available “suitable work”
(that is, work that a worker has the necessary skills
to perform and is medically able to perform, and that
doesn’t pose health or safety hazards to the worker
or co-workers, as determined by the Board) with the
QC
OHS and workers’ comp laws don’t include specific employer return-to-work duties.
SK
OHS and workers’ comp laws don’t include specific employer return-to-work duties.
YT
Workers’ Compensation Act:
1. An employer must co-operate in the early and safe
return to work of a worker injured in his employment
by:
a. contacting the worker as soon as possible after
the work-related injury occurs and maintaining
communication throughout the period of his
recovery;
b. providing suitable employment that’s available and
consistent with the worker’s functional abilities
and that, where possible, restores his pre-injury
earnings;
c. if the earnings for suitable employment offered by
the employer and accepted by the worker are less
than his pre-injury earnings, either the employer or
the board or a combination of the employer and
the board must pay the worker in accordance with
a board of directors’ policy;
d. giving the board the information it may request
concerning the worker’s return to work; and
e. doing other things that may be prescribed by the
board in order to facilitate the worker’s early and
safe return to work [Sec. 40(1)].
2. An employer of a worker who has been unable to
work as a result of an injury and who, on the date
3.
4.
5.
6.
of the work-related injury, had been employed in a
continuous employment relationship for at least one
year by the employer, must offer to re-employ the
worker [Sec. 41(1)].
The duty to re-employ doesn’t apply to an employer
who regularly employs fewer than 20 workers [Sec.
41(2)].
When a worker’s medically able to perform the
essential duties of his pre-injury employment, an
employer must:
a. offer to re-employ the worker in the position that
he held on the date of work-related injury; or
b. offer to provide the worker with alternative
employment of a nature and at earnings
comparable to his employment on the date of the
work-related injury [Sec. 41(3)].
When a worker’s medically able to perform suitable
work but is unable to perform the essential duties of
his pre-injury employment, an employer must offer
the worker the first opportunity to accept suitable
employment that may become available with the
employer [Sec. 41(4)].
An employer must accommodate the work or the
workplace for the worker to the extent determined by
the board [Sec. 41(6)].
For more safety compliance advice, visit us on the web at www.OHSInsider.com
Note: Special requirements apply to employers engaged
primarily in construction under this Act and a regulation.
employer [Sec. 86.4].
7. An employer must, to the satisfaction of the Board and
in order to fulfil its obligations as described above,
accommodate the work or the workplace to the needs
of a worker who requires accommodation as a result of
the injury to the extent that the accommodation doesn’t
cause the employer undue hardship [Sec. 86.5].
8. When an employer has offered re-employment to
a worker and the worker has refused this offer, the
employer is no longer bound by the duty to re-employ
[Sec. 86.6].
9. The above duties don’t apply to:
a. an employer that, in the opinion of the Board,
regularly employs fewer than 20 workers; and
b. the construction industry, unless it’s included by the
Board by regulation [Sec. 86.11(1)].
10.An employer is obligated under the above duties until
the earlier of:
a. two years after the date of the accident; and
b. the date on which the worker attains 65 years of
age [Sec. 86.11(2)].
7. An employer is liable for the payment of up to a
maximum of $1,000 in expenses related to the
accommodation of the work or the workplace for the
worker as the board considers appropriate to enable
the worker to return to work. The board shall pay
the expenses in excess of $1,000 that are related to
the accommodation of the work or workplace for the
worker, as the board considers appropriate, to enable
the worker to return to work [Sec. 41(7)].
8. Where an employer has offered re-employment to
a worker and the worker has refused this offer, the
employer’s no longer bound by the duty to re-employ
that worker [Sec. 41(9)].
9. An employer’s obligated under the above duties until
the earliest of:
a. two years after the date of work-related injury;
b. one year after the worker’s medically able to
perform the essential duties of his pre-injury
employment; or
c. the date on which the worker reaches the age that
a worker becomes entitled to apply for benefits
under Part 1 of the Old Age Security Act [Sec.
41(8)].
7
More Return-to-Work Information on the Way
In a recent survey, you told us you wanted more information on return to work. And we heard you. This
article is just our first attempt to fulfil your needs. In the coming months, both on OHSInsider.com and
in the Insider, we’ll be giving you more information and tools on this important topic, such as how to
develop an effective return-to-work program, how to make the business case for such a program, a model
fitness to work form, a model modified work policy and much more. In the meantime, here’s information
on return to work that’s currently available:
XX
Recorded webinar on the Ontario return-to-work rules
XX
“Brief Your CEO: How Far Return-to-Work Programs Must Go to ‘Accommodate’ Injured Workers,”
Sept. 2011, p. 8.
XX
“Using Supervisors to Improve the Return-to-Work Process, Part 1,” Feb. 2007, p. 14.
XX
“Supervisors and the Return-to-Work Process, Part 2,” March 2007, p. 14.
XX
“Making the Business Case for Safety: Adapting Return-to-Work Programs for Workers Working
Nonstandard Schedules,” April 2008, p. 13.
XX
“Test Your OHS I.Q.: Do You Need a Worker’s Consent to Do a Functional Return-to-Work
Assessment?” July 2007, p. 14.
YOU MAKE THE CALL
Was Firing of Worker Who Failed Post-Incident
Drug Test Discriminatory?
What Happened
A worker operating a loader struck and broke a mirror on a truck. His post-incident drug test came back positive
for cocaine. And he admitted using cocaine on his days off and previously using crystal meth and marijuana. But
he claimed he was an addict. The employer fired him for violating its drug use policy. The worker sued for disability
discrimination.
Question
Was the worker’s firing discriminatory?
Answer
No. To read the reasons for the Human Rights Commission’s decision, see the third case under ALBERTA on page 10.
September 2012 © Bongarde
8
AROUND THE PROVINCES
Definitions of ‘Violence’ in the OHS Laws
I
t's become clear that workplace violence is one of the hazards from which employers must protect workers. As a result, most
jurisdictions have specific workplace violence requirements in their OHS laws, including definitions of what constitutes violence.
And these definitions, while often similar, aren’t all the same. For example, some definitions specifically exclude worker-onworker incidents. Here’s a chart showing how the OHS laws of each jurisdiction define “violence.” (For more information on this
important topic, go to the OHSInsider’s Workplace Violence Compliance Centre.)
DEFINITIONS OF ‘VIOLENCE’ IN THE OHS LAWS
LAW
Canada OHS
Regs., Sec. 20.2
FED
“Workplace violence” is defined as any action, conduct, threat or gesture of a person towards an employee in his/her workplace that can
reasonably be expected to cause harm, injury or illness to that employee.
AB
“Violence,” whether at a work site or work related, means the threatened, attempted or actual conduct of a person that causes or is likely to
cause physical injury.
OHS Code, 2009,
Sec. 1
BC
“Violence” is defined as the attempted or actual exercise by a person—other than a worker—of any physical force so as to cause injury to a
worker and includes any threatening statement or behaviour that gives a worker reasonable cause to believe that he or she is at risk of injury.
OHS Reg.,
Sec. 4.27
“Violence” is defined as:
MB
1. the attempted or actual exercise of physical force against a person; and
2. any threatening statement or behaviour that gives a person reasonable cause to believe that physical force will be used against that
person.
NB
Doesn’t define or address workplace violence in its OHS laws.
NL
“Violence” is defined as the attempted or actual exercise by a person—other than a worker—of physical force to cause injury to a worker and
includes threatening statements or behaviour which gives a worker reason to believe that he or she is at a risk of injury.
NT/NU
OHS Regs. 2012,
Sec. 22(1)
Don’t define or address workplace violence in their OHS laws.
“Violence” is defined as any of the following:
NS
Workplace Safety
and Health Reg.,
Sec. 1.1
1. threats, including a threatening statement or threatening behaviour that gives an employee reasonable cause to believe that the employee
is at risk of physical injury; and
2. conduct or attempted conduct of a person that endangers the physical health or physical safety of an employee.
Violence in the
Workplace Regs.,
Sec. 2(f)
“Workplace violence” is defined as:
ON
1. the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker;
2. an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; and
3. a statement or behaviour that’s reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a
workplace, that could cause physical injury to the worker.
PE
“Violence” is defined as the threatened, attempted or actual exercise of any physical force by a person—other than a worker—that can cause, or
that causes, injury to a worker, and includes any threatening statement or behaviour that gives a worker reasonable cause to believe that he or
she is at risk of injury.
QC
Doesn’t define or address workplace violence in its OHS laws.
SK
“Violence” is defined as the attempted, threatened or actual conduct of a person that causes or is likely to cause injury and includes any
threatening statement or behaviour that gives a worker reasonable cause to believe that the worker is at risk of injury.
YT
Doesn’t define or address workplace violence in its OHS laws.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
OHS Act, Sec. 1(1)
OHS Regs.,
Sec. 52.1
OHS Regs.,
Sec. 37(1)
9
OHS Month in Review
A roundup of important new legislation, regulations, government
announcements, court cases and board rulings
CASE OF THE MONTH
AB Court Says Employer Not Liable for Worker’s Drunk Driving Death
At this time of year, many companies hold picnics, barbeques or
other outings at which alcohol may be served. But when workers
drink alcohol at work or work-related events, their employers could
face liability if an intoxicated worker gets into an accident and
injures or kills himself or someone else. There are steps, however,
that a company can take to avoid liability in such situations. A court
in Alberta recently handled a case involving a worker’s death in a
drunk driving accident. Here’s a look at what happened and how the
employer fared.
THE CASE
What Happened: After 5:00 pm, two friends of the principal of a
company arrived at his office with whiskey. The three men had a
drink. Around 7:00 pm, they invited a female office worker to join
them for a drink, which she did. Other people—both employees and
non-employees—came and went from the impromptu gathering,
some bringing beer. Around 9:00 pm, the company principal left.
Other people also left at the same time. At this point, the office worker
didn’t appear to be drunk. She and another individual stayed until
2:00 am. On her way home, the worker got into a head-on collision
with a truck and was killed. Her blood alcohol level was three times
the level at which driving a vehicle was illegal. Her family sued the
employer for negligently allowing the worker to consume alcohol on
the premises and drive home intoxicated.
What the Court Decided: The Alberta Court of Queen’s Bench
dismissed the lawsuit.
How the Court Justified the Decision: The court considered
whether the company owed a duty of care to the worker by asking
when the principal let the worker drink alcohol in the office, should
he have foreseen that she’d get drunk and then try to drive? In
distinguishing similar cases, the court noted that here, the company
didn’t provide the alcohol the worker drank. Also, the worker didn’t
appear inebriated to the principal or anyone else when he left. In
addition, when the principal left, he reasonably believed that the
others were leaving, too. In fact, most did leave around that time. The
principal couldn’t have known that the worker would stay for several
hours more and continue drinking. And in light of a company policy
permitting workers to take a taxi home at company expense at any
time, he had no reason to believe that if the worker did get drunk,
she’d drive home when she could take a free cab. Based on all of
these factors, the court concluded that the company didn’t owe the
worker a duty of care because it was unforeseeable that she would
become so intoxicated by alcohol that her ability to drive would
become impaired and that, in that state of impairment, she would
choose to drive her car and get involved in an accident [Jenkins v.
Muir, [2012] ABQB 352 (CanLII), May 28, 2012].
ANALYSIS
The company in the Jenkins case did many things right that other
companies should emulate. For example, it had a company policy
barring workers from using or possessing alcohol on the job. And
it paid for workers to take a taxi whenever they needed one—no
questions asked. Those actions helped it avoid liability for the
worker’s death. But the company also did something wrong—despite
the company policy on alcohol, a company principal permitted
workers to drink in the office on that fateful night. Having a company
alcohol policy is only effective if it’s enforced. And it certainly
shouldn’t be undermined by a member of senior management.
OHS Insider Resources
For other cases involving workers who had accidents after drinking at
work, see “Is Employer Liable for Traffic Accident Caused by Worker
Who Drinks at Work?” And for more information on employers’
liability risks if they serve alcohol at company events, see “What’s
Your Liability for Serving Alcohol to Workers at the Holiday Party?”
September 2012 © Bongarde
10
LAWS & ANNOUNCEMENTS
FEDERAL
June 11: TDGA Emergency Response Guidebook Released
Transport Canada, the US Department of Transportation, the Secretariat of Transport and Communications of Mexico, with the help of CIQUIME of
Argentina, released the 2012 Emergency Response Guidebook. It’s primarily a guide to aid first responders in quickly identifying the hazards of the
materials involved in a transportation incident involving dangerous goods and protecting themselves and the general public during the initial response
phase of the incident.
July 12: Safety in Fishing Industry Needs Improvement
According to the results of a three-year investigation by the Transportation Safety Board of Canada, the fishing industry needs to improve workplace health
and safety. It’s report identifies 10 key issues that the industry, regulators and fishing community must address to adequately protect workers, such as
understanding and applying the principles of stability, providing effective training that’s reinforced by practice and understanding and managing the risks
of fatigue.
June 29: Union Worried about Firing of Safety Personnel
Transport Canada is laying off 157 employees, including all regional health and safety advisors, who were recently hired to help the agency comply
with federal OHS law. The Union of Canadian Transportation Employees believes this decision will endanger workers and the public. Transport Canada
claims it’s streamlining the OHS program and has established a national policy health and safety committee, six regional committees and more than 106
workplaces with JHSCs or representatives.
LAWS & ANNOUNCEMENTS
ALBERTA
July 3: Drug & Alcohol Testing Project Announced
A group of employers, labour associations and unions are participating
in a two-year initiative on the effectiveness of comprehensive workplace
drug and alcohol programs. The Drug and Alcohol Risk Reduction Pilot
Project’s mandate is to establish best practices for random alcohol and
drug testing for safety-sensitive work sites and positions and develop
guidelines for processes such as case management, assessment and
follow-up. Implementation of pilot testing programs is expected to start
in late 2012 and early 2013.
June 20: Province Considering Administrative Penalties for Safety
Offences
The province is considering expanding the arsenal of compliance
enforcement tools for safety violations by creating an Administrative
Penalties System (APS). An APS uses monetary penalties levied by
administrative action rather than the courts. Feedback on a possible
APS was accepted through July 31, 2012.
CASES
Company Points Finger at Prime Contractor for OHS Violations
A company was salvaging metal from a former industrial plant. A
temporary worker supplied by another company fell approximately
three metres from an opening in a wall onto a pile of pipe. He suffered
a broken leg and three broken ribs. The company was charged with
several OHS violations. The court said there was no evidence that the
company took any steps at all concerning the safety of its workers.
The company argued that the prime contractor was responsible for
supervising all workers—including the company’s—and complying with
all safety requirements. So it had no duty to ensure the safety of its
workers at that site. But the court disagreed, convicting the company
on all counts [R. v. Canadian Consolidated Salvage Ltd. (Clearway
Recycling), [2012] ABPC 133 (CanLII), May 8, 2012].
Chinese Company Loses Last Shot at Appeal in OHS Case
The Supreme Court of Canada declined to hear an appeal of a lower court ruling
that says a Chinese state-owned corporation should face 53 OHS charges in the
deaths of two oilsands workers. The company, which brought the workers to
Alberta, had argued it had no official presence in Canada and so couldn’t be
charged. The Supreme Court gave no reasons for its decision [Sinopec Shanghai
Engineering Co. v. Alberta, [2012] S.C.C.A No. 31, July 12, 2012].
OK for Employer to Fire Cocaine-Using Worker for Violating Drug Policy
The bucket of a loader operated by a worker struck and broke a mirror on a
truck. The worker took a post-incident drug test, which came back positive for
cocaine. When questioned, he admitted using cocaine on his days off as well
as previously using crystal meth and marijuana. He claimed to be addicted. The
employer fired him for violating its drug use policy. The worker sued for disability
discrimination. The Tribunal ruled that his termination wasn’t discriminatory. The
evidence showed that the worker made rational choices about his drug use. He
chose not to stop using cocaine and not to disclose his drug use to the employer.
Thus, the employer’s decision was based on his violation of company policy, not
his status as an addict [Bish v. Elk Valley Coal Corp., [2012] AHRC 7 (CanLII), June
15, 2012].
Injury Suffered in Employer’s Gym Not Covered by Workers’ Comp
During his lunch break, a worker was injured while working out at a staff gym
provided by the employer and located on its premises. His workers’ comp claim
was originally approved and then denied. He appealed. The Appeals Commission
ruled that the injury wasn’t covered by workers’ comp. The employer didn’t
require workers in this worker’s position to maintain designated levels of physical
fitness. In addition, he wasn’t required to stay in shape as a specific condition of
his employment [Decision No: 2012-516, [2012] CanLII 31503 (AB WCAC), June
7, 2012].
Poultry Company Fined $180,000 for Ammonia Release
A worker’s error at a poultry processing plant resulted in the release of ammonia gas.
Nearby residents were forced to leave their homes or shelter inside. The company
pleaded guilty to violating the Environmental Protection and Enhancement Act
and was fined $180,000 [Lilydale Inc., Govt. News Release, July 6, 2012].
CASES
NB
Lock-out Violations Cost Employer $7,800
A worker’s hand was crushed when it got jammed between a strapper and a metal post. His employer pleaded guilty to failing to establish a written lock
out procedure for a machine and ensure that a worker who may have to lock out a machine has been adequately trained to do so. The court fined it $6,000
and ordered it to make a $1,800 charitable donation [Twin Rivers Paper Co., Govt. News Release, June 29, 2012].
Employer Convicted of Guarding Violation & Fined $2,000
When a worker tried to dislodge a piece of wood that was stuck in a planer, his finger was lacerated because he didn’t de-energize the machinery. In addition,
the blade wasn’t properly guarded. The employer was convicted of a guarding violation and fined $2,000 [Clair Industrial Development Corporation Ltd.,
Govt. News Release, June 29, 2012].
For more safety compliance advice, visit us on the web at www.OHSInsider.com
11
BRITISH COLUMBIA
LAWS & ANNOUNCEMENTS
CASES
July: Updates on Mental Stress, Bullying & Harassment
There have been several developments in these areas:
Firing of Union-Organizing Worker for Harassing Supervisor
Overturned
A supervisor found a worker’s cell phone on a work bench and was going to
turn it in because company policy barred workers from carrying cell phones
in the shop. But he left it on the bench and went to a pub. The worker returned
for the phone and saw that a text message from his wife had been opened
and read. Suspecting the supervisor, he went to the pub and confronted
the supervisor, who denied reading his messages. The worker left and then
returned to the pub parking lot several times. He noted the supervisor’s
licence plate number and circled his truck; made upsetting statements to the
supervisor’s wife; and threatened to report the supervisor for drinking and
driving. The next day, he followed the supervisor to a café. The company
fired the worker for harassing the supervisor in violation of its violence and
harassment policy. But an arbitrator concluded that the employer didn’t have
just cause to fire the worker. It overreacted to the situation and swiftly fired
him without investigating his claims about the cell phone. In addition, it knew
that the worker was a union organizer. The arbitrator ruled that a lengthy
suspension without pay was more appropriate [Re: Progressive Rubber
Industries Inc., [2012] B.C.L.R.B.D. No. 121, June 7, 2012].
• June 18: Progress is being made on an OHS prevention tool kit for
employers and workers on bullying and harassment. The tool kit,
which will be similar to the domestic violence tool kit released in
March, should be available this fall.
• July 1: Bill 14 amendments to the Workers Compensation Act took
effect; Item C3-13.00, Mental Stress was replaced by Item C3-13.00,
Section 5.1 - Mental Disorders.
• Sept. 28: Deadline for comments on a discussion paper and proposed
new OHS policies regarding workplace bullying and harassment.
July 4: Roadwork Safety Campaign Launched
The Work Zone Safety Alliance launched its 2012 Cone Zone campaign
to encourage drivers to take care when driving near roadside workers
by reducing their speed, avoiding driver distraction and respecting
the roadside as a workplace. ConeZoneBC.com has tips and helpful
information about safely navigating through roadside work zones.
MANITOBA
LAWS & ANNOUNCEMENTS
CASES
June 22: Province Reviewing OHS Law, Enforcement & Prevention
The province is conducting an independent review of workplace safety and health enforcement
and prevention to develop a five-year strategy for approaching workplace injury and illness.
The review will be a collaborative effort by industry, labour and technical stakeholders; the
WCB; Advisory Council on Workplace Safety and Health; Workplace Safety and Health; and the
new chief prevention officer. As part of the review, the Advisory Council is seeking stakeholder
input for the review of the Workplace Safety and Health Act, which is required to be reviewed
by the Council at least once every 5 years. Submissions are due by Sept. 14, 2012.
Serious Injuries to 15-Year-Old Worker Result in
$48,050 Fine
A 15-year-old worker attempted to straddle a moving
conveyor belt when she lost her balance and fell onto it.
The conveyor belt pulled her under a metal brace for the
conveyor’s motor, pinning her between it and the moving
conveyor. She sustained serious injuries, including a
fractured pelvis and sacrum, several crushed muscles and
damage to nerves in her right leg and nerves affecting
bladder and bowel control. The employer pleaded guilty
to failing to ensure a worker used procedures for working
near or crossing a conveyor that minimized risk to safety
and was fined $48,050 [ShellMark Farms Ltd., Govt. News
Release, July 9, 2012].
May 15: New Director to Address C-45 Enforcement
The government took steps to start enforcing C-45 for workplace incidents by hiring a new
director of investigations. Among his missions: sit down with police, prosecutors and workplace
investigators to clarify roles in the event of a workplace incident. He’ll also review all policies
to ensure criminal negligence factors are addressed during investigations.
NOVA SCOTIA
LAWS & ANNOUNCEMENTS
CASES
July 12: Too Many Fishermen Dying, Injured on the Job
Nova Scotia fishermen are 19 times more likely to be killed at work than working
Nova Scotians in general, according to WCB statistics. Together with a recent
Transportation Safety Board report, there’s clearly a need for cultural change in the
fishing sector. The fishing industry has one of the highest injury rates overall in Nova
Scotia. In 2011, about 330 people were hurt on the job in this sector. Of those, 135
were serious injuries that resulted in time lost from work.
Worker’s Exposure to Toxic Fumes Permanently Worsened Existing
Condition
A worker claimed that exposure to fumes from glue when it was applied
to foam irritated her lungs and forced her to leave work. She filed a
worker’s comp claim. A workers’ comp case manager concluded that
because the fumes only temporarily exacerbated the worker’s preexisting chronic obstructive pulmonary disease (COPD), the claim should
be denied. But the Appeals Tribunal found that there was sufficient
evidence that exposure to fumes from the glue caused the worker to
develop more severe COPD symptoms, including occupational asthma.
Because these symptoms constitute a permanent aggravation of her
pre-existing condition, her injury was covered by workers’ comp [Re:
2010-329-AD, [2012] CanLII 35360 (NS WCAT), June 26, 2012].
June 27: Farm Safety Project Launched
The Canadian Agricultural Safety Association (CASA) launched a Nova Scotia
FarmSafe Pilot Project to help producers implement health and safety plans on their
farms. A FarmSafe advisor trained by CASA staff will walk farm managers through
the process of establishing such a plan and will follow up with four on-site farm
visits. The health and safety plans will be based on the Canada FarmSafe Plan.
LAWS & ANNOUNCEMENTS
NU
June 22: Public Health Office to Open in Territory
After noticing a “huge gap” during the 2009 H1N1 flu scare, the Public Health Agency of Canada will open an office in Iqaluit, likely by the end of the
year. Nunavut is the only jurisdiction in Canada without a Public Health Agency office. The agency’s job is to handle big health emergencies, provide
surveillance against the spread of infectious disease and chronic injuries, do health promotion and help territorial and provincial public health offices
collaborate.
September 2012 © Bongarde
12
LAWS & ANNOUNCEMENTS
ONTARIO
June 29: Sector Plans for 2012-13 Released
The MOL released enforcement plans for 2012-13 that focus on hazards specific to
workplaces in different sectors, including:
• Construction Sector
• Industrial Sector
• Mining Sector
• Health Care Sector
• Specialized and Professionals Services Sector.
July 1: Two New Inspection Blitzes Begin
The MOL launched two new inspection blitzes targeting:
• Tower and mobile cranes
• Pits and quarries.
July 3: One Call System for Utility Locates Now Mandatory
The new Ontario Underground Infrastructure Notification System Act, 2012 makes
mandatory the Ontario One Call system, which provides locates and information on
utilities buried in a specified area. The following must provide information to the
system as to locates:
• Municipalities
• Gas distributors and transmitters
• Operators of a distribution system
• Anyone or entity regulated under the Oil, Gas and Salt Resources Act
• Anyone or entity that owns or operates underground infrastructure that crosses
or is in the vicinity of a public right of way
• Hydro One Inc and Ontario Power Generation Inc.
CASES
Employer, President Plead Guilty & Are Sentenced in Christmas Eve Tragedy
On Dec. 24 2009, workers were working on a swing-stage scaffold when it collapsed.
Four workers died and another was seriously injured. Their employer, its president
and a supervisor were charged with violations of the OHS laws and criminal law. The
company that provided the scaffold and its president were also charged with OHS
violations. The employer pleaded guilty to criminal negligence causing death under
the Criminal Code as amended by Bill C-45. Its president pleaded guilty to four OHS
violations for failing, as a company director, to ensure the company complied with
the OHS laws. Charges against the supervisor are still pending [Metron Construction
and Joel Swartz, June 15, 2012]. (For details, read a blog post by Cheryl Edwards.) On
July 13, 2012, the court fined the employer $200,000 and the president $90,000. All
criminal charges against the president were dropped.
Company Violated Collective Agreement by Considering Prior Discipline
A worker was fired after an altercation with a company vice-president. The union
filed a grievance, arguing that the company had considered the worker’s prior
disciplinary record in violation of a “sunset” clause in the collective agreement. The
arbitrator ruled that the company had inappropriately considered the worker’s
prior discipline. In fact, it should’ve removed the prior discipline from his file, which
it didn’t do. Thus, the arbitrator ordered the company to reinstate the worker
[Labourers’ International Union of North America, Local 506 v. Tri-Krete Ltd., [2012]
CanLII 34143 (ON LA), June 11, 2012].
Worker’s Knee Injury Wasn’t a Factor in His Termination
A warehouse worker fell through a wooden board about four feet to the ground
and injured his knee. About a month later, he was fired. He claimed disability
discrimination. When the worker was fired, he was fit to work. And the employer
wasn’t aware of any restrictions on his abilities. But it was losing trust in him due to
his speaking about a “confidential” settlement in a prior human rights lawsuit; lying to
his doctor about the nature of the fall; lying to the company president that the WSIB
didn’t want to see the security tape of the fall; and providing inconsistent information
about his health. In addition, the worker had lost his temper several times and was
only fired after a threatening outburst. Thus, the Human Rights Tribunal ruled that
disability played no role in the decision to fire him [Edmondson v. Alumpro Building
Products Inc., [2012] O.H.R.T.D. No. 1045, May 23, 2012].
For more safety compliance advice, visit us on the web at www.OHSInsider.com
Employer Properly Fired Worker for Intimidating Statements to
Manager
A worker with prior discipline was suspended for five days for
carelessly packing defective product. She got very upset and told the
plant manager, “The first element to attack is water—the next is fire,”
referring to a burst pipe that had previously flooded the plant. The
worker, who was religious, also said the manager was wicked and
wicked things happened to wicked people. The manager, who knew
the worker smoked, took these statements as threats and called the
police. The worker refused to apologize and was fired. In the grievance
proceeding, the worker denied intending to start a fire but refused to
apologize. The arbitrator concluded that her statements were intended
to intimidate the manager into rescinding the suspension. And given
her lack of remorse, firing her was appropriate [Plastipak Industries
Inc. United Steelworkers Union (Jemison Grievance), [2012] O.L.A.A.
No. 282, June 7, 2012].
Union’s Claim that Asbestos Order Didn’t Go far Enough Denied
An inspector issued an order requiring a school board to re-inspect a
particular school to verify the accuracy of its existing asbestos survey.
The teachers’ union challenged the order as not going far enough,
claiming the school board had failed to properly address asbestos
throughout the entire school system. The Labour Relations Board
ruled that the union’s request was too far-reaching and exceeded the
Board’s jurisdiction [Elementary Teachers’ Federation of Ontario v.
Kawartha Pine Ridge District School Board, [2012] CanLII 31549 (ON
LRB), June 8, 2012].
President/Supervisor Fined $30,000 for Worker’s Death
During a bridge construction project, a concrete panel collapsed on top
of a worker, killing him. An MOL investigation found that although the
company president, who was supervising the work, had been given
a copy of an engineered procedure for safely cutting and removing
concrete from the bridge deck to prevent collapse, this procedure
wasn’t followed. In addition, workers exposed to a fall hazard while
dismantling the bridge hadn’t been wearing fall protection. The
president pleaded guilty to failing, as a supervisor, to take reasonable
steps to ensure workers followed the engineered procedure and wore
fall protection. The court fined him $30,000 [Barry Wood, Govt. News
Release, July 12, 2012].
Supervisor Fined $10,000 for Worker’s Lack of Fall Protection
A construction supervisor was supervising workers shingling the roof
of a home when one of the workers fell off the roof, sustaining serious
injuries. The MOL investigation found that the worker hadn’t been
wearing fall protection. The supervisor was convicted of failing, as
a supervisor, to ensure his workers wore fall protection. The court
fined him $10,000. The constructor and the employer had previously
pleaded guilty to safety charges for this incident [Chad Shostal, Govt.
News Release, June 21, 2012].
Turkey Farm Hit with $65,000 Fine after Worker Fell Through Floor
Opening
A worker was cleaning out a poultry barn, in which the protective
coverings on several floor chutes on the second story had been
removed. He fell though one of these unguarded chutes and was
seriously injured. The farm pleaded guilty to failing to ensure workers
were protected by guardrails or grates to prevent them from falling
through floor openings and was fined $65,000 [Cuddy Farms Ltd.
2008, Govt. News Release, July 10, 2012].
Guarding Violation Leads to Hand Injury & $60,000 Fine
A worker was having trouble feeding a sheet metal coil into a paint
machine because the steel was oily. A second worker offered to
help and “jogged” the machine while the first worker placed a strip
of paper on top of the sheet of steel at the pinchpoint area of the
rollers. His hand was drawn into the rollers and injured. An MOL
investigation found that the paint machine’s rollers weren’t protected
by a guard. The company pleaded guilty to a guarding violation and
was fined $60,000 [Continuous Color Coat Ltd., Govt. News Release,
July 4, 2012].
13
CASES
NL
NL Court Looks at What Qualifies as Due Diligence for Training & Supervision
While working along a public highway, a flagger got too close to an excavator operated by a co-worker. He was run over by it and crushed to death. His employer
was charged with several OHS violations, including failing to provide proper information, instruction, training and supervision to workers at the site. The court
convicted the company. It concluded that although there was evidence that the company provided some instruction and supervision to workers, it was minimal
and not to the extent required to prove due diligence [R. v. Concord Paving Ltd., [2012] CanLII 31899 (NL PC), June 8, 2012].
Chicken Processing Facility Fined $20,000 for Partial Amputation of Hand
A worker at a chicken processing facility was cleaning a machine when his hand was partially amputated. The facility pleaded guilty to failing to ensure its
workers and supervisors were familiar with health or safety hazards and that equipment was used according to safe work practices. The court fined the facility
$10,000 for each charge and ordered it to pay $2,000 to be used for public OHS education [Country Ribbon Inc., Govt. News Release, June 22, 2012].
LAWS & ANNOUNCEMENTS
July 4: Wellness Project Launched
The government launched the Pathways to Wellness project, which is designed
to promote wellness and the prevention of illness by educating the public on
the factors that influence health and what works when it comes to improving
the health and well-being of individuals, families and communities. The project
includes a website that contains a background paper, video and up-to-date
practical information on how to improve health and well-being.
July 9: Workers’ Comp Rates to Rise in 2013
The WSCC’s average provisional assessment rates will rise
from $1.77 for each $100 of assessable payroll to $2.05
per $100 for 2013. The WSCC will no longer subsidize the
rates because of higher healthcare costs and the economy.
The final rates for sub-classes will be released in Oct. after
a Sept. meeting of the WSCC Governance Council.
NT
YT
LAWS & ANNOUNCEMENTS
LAWS & ANNOUNCEMENTS
QUÉBEC
June 14: Young Worker Safety Campaign Launched
The CSST launched a young worker safety awareness campaign that encourages young workers to demand safety training from their employers. As part of
the campaign, young workers can test their knowledge of workplace health and safety to win movie tickets.
July 9: Study Reveals Hiring Discrimination
According to a study recently published in a CDPDJ report in which 581 fictitious résumés were distributed in the Montreal area, equally competent and
educated candidates were 60% more likely to get a job interview when their family name was of Québec origin rather than a name of African, Arab or
Latin-American origin.
LAWS & ANNOUNCEMENTS
PE
July 3: Fall Protection Campaign Began
The WCB began a Zero Tolerance Campaign against fall protection violations. OHS officers will be inspecting Island workplaces for fall protection violations
and strictly enforcing the OHS Act and Regulation.
June 11: 2011 Annual Report Released
The WCB released the 2011 Annual Report, which describes the accomplishments of the past year. A summary of the Report was presented at the WCB
Annual Public Meeting on June 27, 2012. The number of adjudicated claims, injury frequency rate and number of health and safety inspections all
decreased, while the number of health and safety workshops and presentations given increased.
SASKATCHEWAN
LAWS & ANNOUNCEMENTS
CASES
June 12: Information Sessions on Upcoming OHS Amendments to Be Held
Amendments to the OHS Act take effect Sept. 3, 2012. In preparation, the Ministry of Labour Relations and
Workplace Safety is holding information sessions around the province. Attendees will receive a Guide that
provides interpretations for each of the amended sections in the Act.
Trenching Violation Costs Company
$4,200
Two workers were observed in a trench
that wasn’t properly sloped and had
been undercut to locate a gas line. They
weren’t protected from cave-ins or
sliding material by means of cut back
or shoring. Their employer pleaded
guilty to a trenching violation and was
fined $4,200. Three charges against a
supervisor for the same incident were
dismissed [Dmyterko Enterprises Ltd.,
Govt. News Release, June 13, 2012].
July 11: Road Work Safety Campaign Begins
An ad campaign aimed at reminding motorists to slow to 60 km/hr when passing workers and equipment in
Orange Zones was launched by the Ministry of Highways and Infrastructure. It urges drivers to avoid accidents
by:
• Looking for the signs marking the beginning of an Orange Zone and letting you know you’ll soon have to
slow down.
• Reducing your speed to 60 km in these zones.
• Using extra care and caution, be alert and watch for people and equipment.
September 2012 © Bongarde
14
EMERGENCY PLANNING continued FROM PAGE 1
implementing an emergency plan. Here’s an overview on
the laws that impact emergency planning and response and
eight tips for ensuring that your company and its workers
are adequately prepared for any emergency.
THE LAW ON
EMERGENCY PREPAREDNESS & RESPONSE
There are several laws that impose emergency preparedness
and response duties on companies:
Transportation of Dangerous Goods Laws
The federal Consolidated Transportation of Dangerous Goods
Regulations (TDG Regulations) require companies that transport
or import certain dangerous goods to have emergency response
assistance plans (ERAPs) to control and address any accidental
releases that may occur. The federal requirements have been
adopted in all Canadian provinces and territories. The intent of an
ERAP is to help local authorities respond to an incident involving
dangerous goods, such as by providing emergency response
advice, specialized equipment or response teams. The TDG
Regulations cover topics such as when an ERAP is required and
how to apply for approval for your ERAP.
Insider Says: For more information on the ERAP requirements, see
“Hazardous Substances: How to Comply with TDGA Emergency
Response Plan Requirements,” June 2009, p. 1..
OHS Laws
The OHS laws in every jurisdiction require employers to plan for
workplace emergencies. Most jurisdictions require emergency
plans for general emergencies, such as fires, explosions, building
and equipment collapses, serious safety incidents, etc. They may
also require emergency plans for certain hazards, such as confined
spaces, or activities, such as diving operations.
Insider Says: For more information on general emergency
requirements, see “Responding to Emergencies: What Do the OHS
Laws Require?” April 2008, p. 1. For information on preparing
for fires, see “Fire Preparedness & Response: What the OHS
Laws Require,” Oct. 2010, p. 1. And for information on confined
space emergency plans, see “Confined Spaces: How to Create an
Emergency Plan,” July 2010, p. 1.
Environmental Laws
Companies must also be prepared to respond to emergencies that
could impact both workers and the environment, such as spills
of hazardous substances. The federal Environmental Emergency
Regulations—commonly known as the E2 Regulations—require
companies to have environmental emergency or “E2 plans”
under certain circumstances, such as when they possess
designated hazardous substances in excess of certain amounts.
The E2 Regulations spell out:
• Which facilities must have an E2 plan;
• The factors to be considered in developing the plan;
• What the plan must cover; and
• The information on the plan the facility must report to the
government.
Insider Says: OHSInsider.com has more information on complying
with the E2 Regulations and recent changes to them.
8 EMERGENCY PLANNING & RESPONSE TIPS
Tip #1: Plan for Wide Variety of Emergencies
Your emergency plan can’t just address fires and that’s it. It must
be comprehensive and account for all types of emergencies to
which your workplace could reasonably be exposed—including
both man-made emergencies, such as power outages, acts
of terrorism and explosions, and “natural” events, such as
hurricanes, floods, blizzards and earthquakes. When developing
your emergency plan, create a list of probable emergencies that
could occur in or near your workplace, taking into account:
Location. Consider your company’s location, including its
geographic location and proximity to other workplaces or sites
that could pose a hazard. For example, an insurance company
will generally face only typical emergencies, such as fires and
power outages. But if the company’s located near a chemical
manufacturing plant, it’s at risk of exposure to additional types
of emergencies, such as releases of toxic substances. And if
the company’s located near government offices, it could be
endangered by acts of terrorism aimed at those offices.
Also consider the weather conditions or natural phenomena to
which your company could be exposed by virtue of its location.
For example, companies located on the coast are at risk of
hurricanes, while companies located in the interior of the country
may face a risk of tornadoes or flooding. And a company in an
area near a fault line should be prepared for earthquakes.
Nature of the company’s work. Obviously, a industrial
workplace will be at risk of different or additional emergencies
than an office setting. So consider the nature of your workplace’s
For more safety compliance advice, visit us on the web at www.OHSInsider.com
15
operations in your emergency planning, including the machinery,
chemicals and other potentially dangerous substances that are
manufactured, used or stored in the workplace. For example, the
presence of combustible dust in the workplace increases the risk
of explosions and fires.
Tip #2: Make Sure Key Players in Plan Know Their Roles
Tip #4: Address Needs of Disabled Workers
Workers with disabilities may not even realize there’s an emergency
when one occurs or may have trouble safely evacuating. For
example, a hearing disabled worker may not hear alarms or
evacuation instructions over a PA system. And a worker with a
mobility impairment may not be able to escape down a staircase.
All employees should be given copies of the company’s written
emergency plan, trained on it and participate in regular drills
of the emergency procedures. But it’s particularly important
that anyone with a key role in the plan is aware of that role
and adequately trained to fulfil it. For example, if a worker is
assigned to help a disabled co-worker evacuate, that worker
needs to know he has this responsibility and be trained on the
kind of assistance he may have to provide for his co-worker.
And if a supervisor has the role of ensuring that his section of
the facility is fully evacuated before leaving himself, make sure
he understands this duty.
So your emergency plan must be designed to protect all workers,
including those with disabilities. An emergency plan that doesn’t
address the needs of such workers violates an employer’s general
duty because it doesn’t adequately protect them. In addition, the
human rights laws both bar employers from discriminating against
workers based on a disability and require them to accommodate
disabled workers by modifying workplace policies, procedures
and physical conditions to the point of undue hardship. And
modifying a workplace’s emergency plan to accommodate the
needs of disabled workers is likely to be considered a reasonable
accommodation.
Example: On Aug. 13, 2011, nearly 12,000 people were
waiting for the start of a concert by the band Sugarland at
the Indiana State Fairgrounds when a temporary structure
supporting spotlights and other equipment mounted on top
of the stage collapsed due to the wind. Seven people died and
more than 40 required medical treatment. A year later, the
Indian State Fair Commission (ISFC) released a new emergency
plan based on an investigation of the incident that focused on
the effectiveness of the emergency preparedness and response
measures in the aftermath of the collapse. According to an
executive summary of the investigation (the full report is also
available), one of the criticisms of the emergency planning for
the event was the fact that a senior ISFC official had a role in
the emergency plan but wasn’t aware of his role and hadn’t
been trained to fulfil it.
To adequately address the needs of disabled workers in
emergency planning, do the following:
Tip #3: Include Contractors in Emergency Planning
•
Determine what their needs are as to evacuation and
emergency response;
•
Designate co-workers to help disabled workers in
emergencies;
•
Assess the workplace to identify potential hazards or barriers
to a disabled worker in an emergency;
•
Create areas of refuges where disabled workers can shelter
in place or await evacuation;
•
Ensure you can communicate emergency information to all
workers; and
•
Cover the needs of disabled workers in emergency training
and drills.
Insider Says: For more information on emergency planning for
disabled workers, see “Emergency Preparedness: Addressing
the Needs of Disabled Workers,” Sept. 2011, p. 1.
Your company’s own staff aren’t the only ones who need to be
trained on the emergency plan. If you regularly use contractors
who may be present in the workplace when an emergency
happens, you should include them in your emergency planning.
The degree of their involvement will depend on the nature of their
work, extent of their presence in the workplace and other factors.
But at a minimum, give all contractors a copy of the emergency
plan and basic training on it, such as what to do and where to go
if the fire alarm goes off.
Tip #5: Make Sure Emergency Exits Are Accessible
Example: The investigation into the Indiana stage collapse
revealed that the ISFC relied heavily on contractors for the
major productions at the stage. But with few exceptions, these
contractors weren’t aware of the emergency response plan and
procedures or involved in their development, didn’t participate in
drills of the plan and weren’t trained on it.
Example: A worker at an Ontario car wrecking yard was removing
a gas tank from a car. But the tank wasn’t empty. Gas spilled
out of it and was ignited by a nearby inspection lamp, causing
a fire. Because the emergency exit was blocked, three workers
were forced to run to the other end of the building to escape.
As a result, all three suffered burns and smoke inhalation. Their
Emergency planning is useless if workers can’t get to emergency
exits or find that they’re obstructed. A blocked emergency exit
can have tragic consequences for workers and lead to fines for
employers.
September 2012 © Bongarde
16
employer was fined $5,000 for failing to ensure that emergency
exits were free from obstructions and another $55,000 for failing
to provide information, instruction and supervision to a worker for
the safe removal of a gas tank [Woodstock Auto Recyclers Ltd.,
Govt. News Release, April 26, 2012].
Tip #6: Coordinate Emergency Planning with Local Authorities
When there’s an emergency in your workplace, you’ll likely
need the assistance of local authorities, such as the police, fire
department or emergency response team. So it’s important to
include these groups in your emergency planning. At a minimum,
you should give them copies of your emergency plan and any
other information that could be useful in an emergency, such
as a diagram of the layout of the workplace and shift records
indicating who’s working and where at any given time. Having this
information will make their response more effective.
Example: In the second of two incidents at BC sawmills this year,
an explosion and fire killed two workers and sent 24 people to
the hospital. When emergency response teams got to the scene,
they had to scramble to make sure they’d located and evacuated
everyone from the building—a process made more complicated
because they didn’t have access to shift records. So emergency
responders didn’t know exactly who was working and where at
the time of the explosion.
Tip #8: Plan for Impact of Emergencies on Business Operations
Workplace emergencies impact not only the company’s staff but
also its operations. For example, the company may need to close
down all or part of the workplace to clean up the damage, repair
or replace equipment and materials, and allow for internal and
government investigations. And if the company isn’t prepared,
these disruptions could cause operations to slow down or even
stop—often resulting in serious financial problems.
Your emergency plan shouldn’t address these operational issues.
Instead, your company also needs a so-called business continuity
plan. Although emergency plans and business continuity plans are
related, their goals are different. An emergency plan is designed
to save lives, prevent injuries and minimize property damage; a
business continuity plan is designed to enable the company to
continue to meet its business and legal obligations and provide
critical services or products after emergencies with the least
possible disruption until normal operations can resume. To prevent
harm to the company’s brand, reputation and customer relations,
business continuity plans do two key things:
•
Spell out the steps, measures and arrangements needed
to ensure the continuous delivery of critical services and
products; and
•
Identify the resources needed to support operations
continually, including personnel, information, equipment,
finances and infrastructure.
Tip #7: Do Practice Drills—and Revise Plan Based on Results
An emergency plan may look good on paper but, in reality, not
be practical or effective. The only way to know for sure whether
your emergency plan is adequate—before an actual emergency
happens—is by conducting practice drills. Such drills enable you to
identify issues or weak spots in your emergency planning and help
clarify roles and responsibilities.
But the drills are only truly helpful if you use the information you
get from them to improve your emergency plan. For example, if a
drill reveals that a certain evacuation route isn’t practical for some
workers, devise another route for those workers and include it in
the plan. Failing to update the emergency plan based on feedback
from drills is a missed opportunity to improve your plan.
Example: The report on the Indiana stage collapse noted that
although a Tabletop Exercise involving a severe weather incident
was conducted, the participants didn’t hold a post-exercise
discussion to evaluate the exercise. In addition, no one prepared
an After-Action Report summarizing the lessons learned and
recommendations from the exercise, although an Executive
Summary of the exercise was subsequently provided. But the
recommendations from this exercise weren’t implemented before
the 2011 State Fair.
Insider Says: For more information on business continuity
plans, see “Business Continuity Plans: Why They Need to
Include Responses to Safety Incidents,” Sept. 2008, p. 14.
BOTTOM LINE
Preparation and planning are the keys to effective emergency
response. Use these tips to ensure that your company’s emergency
planning and response efforts are adequate if they’re put to the
test in the event of an actual emergency.
More Emergency Planning Resources
For more information and tools on dealing with emergencies in
the workplace, go to the OHS Insider’s Emergency Preparedness &
Response Compliance Centre, which includes:
• Fire safety checklists for industrial workplaces and offices
• A workplace flood preparedness and response checklist
• An earthquake preparedness activities checklist
• Posters on emergency preparedness that you can display in your
workplace.
And for training materials on emergency preparedness, such as
videos, e-learning courses and safety talks, go to Safety Smart. (You’ll
need to be a Safety Smart member or sign up for a trial membership
to access these training tools.)
For more safety compliance advice, visit us on the web at www.OHSInsider.com
17
‘Evolve To Succeed’:
Communicating the Safety and Health Message in a Changing Work Environment, Part 2
By Fred Leafloor, CRSP, CHSC, CRM
T
his article is the second in a series providing the author’s
insight into the changing communications role of the
safety professional. As introduced in the first article, much
of a safety professional’s effectiveness is characterized by an
ability to clearly articulate important safety and health issues in
a manner that a management group can easily place within a
business context, facilitating the adoption of solutions. As the
organization’s OHS program or safety culture matures, safety
professionals must change their approaches and communications
styles to maintain the effectiveness of their messaging.
Having previously introduced the OHS Maturity Phases
dashboard and discussed the shift in communication styles
when working within a negligence culture, we now turn
our attention to the safety professional’s more challenging
communications adjustment when leading the organization’s
transition from a compliance culture to a organizational mindset
of due diligence.
HSE Maturity Phases
DU E E
ENC
TO
MA TAL
NA Q
GE UAL
M E IT
NT Y
(INT
EG R
ATIO
LIGE
CE
R
TH E
FU R E M E NT
OV
N)
N EG
P
N
CO N
T
IMPR INUOUS
OVE
MEN
T
IMPR
N CE
CO
M
A
LI
DILIG
Communicating in the Compliance Phase
In the compliance phase, the generally ineffective—but
frequently used—fear-mongering approach from the negligence
phase is no longer available. The safety professional can’t call
upon potential regulatory punishments for violating OHS laws
as motivation if the organization is at least compliant with these
requirements. A large number of safety professionals don’t have
this realization and so continue to use the ”same old” approaches
to communicate to management and the workforce in the new
operating environment. This lack of understanding marginalizes
the safety professional and his or her communications quickly
become irrelevant and ignored.
A More Effective Approach
Building upon the guidance provided in the previous article,
effective health and safety communication must incorporate
a recognition of basic business principles to get the message
heard. Within the compliance phase, the communication focus
must shift to active positive reinforcement of planning for
opportunities to not only meet but also exceed the requirements
in the OHS laws.
For many organizations, this step requires a change in
thinking. Budgets, schedules, operational priorities and other
commercial forces all occupy the forefront of a manager’s mind.
Each critical issue receives only as much attention as necessary
to move it off of the top of the pile to make room for the next
crisis. The safety professional must consider and present safety
issues in terms of that pile and communicate decision options
that can support self-sustaining solutions. That is, the focus
should be keeping compliance issues off of the pile entirely
when possible and avoiding have them percolate to the top on
any sort of regular basis. Has anyone noticed the corollary that
being able to do so in a practical manner also makes the safety
professional’s life a lot easier?
How Is Effective Communication Accomplished?
Communication within this stage of organizational OHS
development/maturity relies primarily upon maximizing the
good news stories that highlight the benefits of compliance
with OHS program standards and regulatory requirements. The
safety professional must move from ”negative reinforcement”
to a ”positive reinforcement” approach.
For example, many successful safety professionals link the
”saved” costs of incidents resulting from effective compliance
behaviours to organizational leading and lagging (or trailing)
indicators, particularly in terms of workers’ comp costs. In fact,
some jurisdictions have workers’ comp rebate programs for
improved injury performance. If your organization operates
within that type of regime, speak to the appropriate department
to quantify the organization’s reductions in workers’ comp
costs and tie those reductions directly to improvements in
compliance. For instance, show that the introduction of an
ergonomics program reduced the incidence of musculoskeletal
injuries in workers.
September 2012 © Bongarde
18
Scrutiny of OHS newsletters and safety professional
publications reveals many stories of regulatory non-compliance
and their outcomes. Compare the background of some of those
incidents to tasks (or experiences) within your organization and
develop safety emails, alerts, bulletins, posters or info-notes to
show how your organization’s current behaviours keep them
out of the traps into which others have fallen.
Example: Say a company in your jurisdiction was recently
hit with a hefty fine after a worker was injured because he
failed to lock out equipment before repairing it. In fining the
company, the court noted that it didn’t have written lockout
procedures. Your company has such procedures. So you can use
this incident to illustrate how your company’s procedures help
protect workers from similar injuries and the company from
similar fines.
In addition, show how compliance provides a business
advantage over competitors. Include parts of the organization’s
internal compliance record as an additional section within bid
documents, strengthening the typical trailing indicator statistics
that are required in the majority of Request for Quote bid
responses. The more you can demonstrate the comparative
savings or other commercial advantages of compliance, the
more likely management will be to take those extra steps in
support of compliance activities and activities that go beyond
compliance.
And don’t waste opportunities to keep the benefits of
compliance activities in front of management. Announce good
inspection reports, meeting target goals for leading indicators,
closing out of report follow-up action items, etc. as successes.
BOTTOM LINE
Safety professionals frequently feel that ”tooting your
organizational horn” doesn’t reflect the quiet professionalism
that many believe is the watchword of our profession. But
consider this: During the compliance phase, the organization’s
future development is balanced on the edge of a blade. It can
lean forward to embrace greater opportunities to improve
its OHS performance and commercial success. Or it can fall
backwards into the quagmire of non-compliant behaviours
with program standards and regulatory requirements and face
incident costs and potential fines or penalties. Your effective and
ongoing communication activities can tip the balance in favour
of future improvements. To paraphrase a famous 18th Century
quote by Edmund Burke, “All that’s necessary for the triumph
of non-compliance is that safety professionals do nothing.”
Fred Leafloor, CRSP, CHSC, CRM is the President and
Principal Consultant for Safety First Industrial Safety
Services, based in Nova Scotia, Canada, which has
been successfully providing OHS consulting services
on an international basis for 24 years. In addition to
Fred’s operational safety and health expertise across
a broad range of industrial sectors, he’s a Professional
Member of the Canadian Society of Safety Engineering
and the American Society of Safety Engineers. He also
presents two programs for the CSSE’s Certified Health
and Safety Consultant professional designation and
has recently co-developed a third program for the
CHSC designation, “Essentials of Risk Management for
OHSE Practitioners.”
Canada’s Premier Conference
for OHS Professionals
1-800-667-9300
Venue
Sheraton Centre Toronto
123 Queen Street
Toronto, Ontario M5H 2M9
Integrating Change & Managing Risk to Improve Your OHS Program
www.ohssummit.ca
October 29-30, 2012 www.ohssummit.ca
Forohs_summit2012_ad_7.5x3.indd
more safety compliance 1advice, visit us on the web at www.OHSInsider.com
Summit Chair
Dylan Short, CHSC, CRM
Managing Partner
The Redlands Group
3/7/2012 10:59:26 AM
19
ENVIRONMENTAL COMPLIANCE
Handle Odour Complaints with Management & Response Plan
S
ome operations, including environmentally friendly
actions such as recycling and use of biogas, can lead to
odour complaints. If you don’t properly address these
complaints, neighbours may challenge the facility’s ability to
operate—or even sue it for nuisance. And such a lawsuit can
be costly. For example, an Ontario court closed an organic
waste processing facility for nine months in response to more
than 1,000 odour complaints from neighbours, who described
the smell as “offensive, putrid and noxious” [The Town of
Newmarket v. Halton Recycling Ltd.].
You can effectively manage such complaints with an odour
complaint management and response plan. Here’s a look at
a case in which such a plan was required. You can base your
company’s plan on the key elements of this one.
AB Environmental Board Requires Odour
Complaint Plan
The case began when a company got approval to operate a
facility that processes waste to produce fuel called biogas.
Neighbours challenged the approval on several grounds,
including odour concerns.
The Alberta Environmental Appeals Board upheld the facility’s
approval, which required the facility to have a detailed odour
complaint management and response plan that included the
investigation and remediation of odour and similar complaints.
The facility also had to record the date, time, wind direction and
speed at the time of any odour complaint to help determine
whether it caused the odour. In addition, the odour complaint
management and response plan had to be updated annually
“to ensure continuous improvement and effectiveness.” The
Board added another condition to the approval, requiring the
company to address offensive odours within two weeks unless
the Director granted an extension [Viponds v. Director, Southern
Region, Environmental Management, Alberta Environment].
Key Elements of Odour Complaint Plan
The odour complaint management and response plan upheld
by the Alberta Board had several elements that are key for the
success of such plans, including procedures for:
• Reviewing odour complaints immediately;
• Recording wind characteristics and prevailing weather
conditions at the time of the complaint;
• Handling complaints made after hours, such as via the
establishment of an odour complaint hotline;
• Determining the source of the odour and how the source
led to the complaint;
• Deciding the appropriate actions to resolve the complaint;
• Providing proposed timelines for promptly responding to
the complaint;
• Identifying follow-up actions to determine the effectiveness
of the corrective action;
• Documenting the steps taken to prevent the odour from
becoming a problem in the future; and
• Annually reviewing the plan to ensure its effectiveness.
SHOW YOUR LAWYER
The Town of Newmarket v. Halton Recycling Ltd., [2006] CanLII
33316 (ON S.C), Sept. 29, 2006
Viponds v. Director, Southern Region, Environmental Management,
Alberta Environment, Appeal Nos. 09-006-009, 016 & 019-R,
Alberta Environmental Appeals Board, March 11, 2011
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September 2012 © Bongarde
20
WINNERS & LOSERS
When Is Environmental Training Adequate to Meet Due Diligence Standards?
To prove due diligence, a company must show that it took all reasonable steps to ensure compliance with the environmental laws. Although the required “reasonable
steps” vary depending on the situation, in nearly all cases, courts will look at the environmental training the company provided its workers. And if that training is
inadequate, it may undercut the company’s due diligence defence. (The same is true for safety training.) Here are two cases in which the adequacy of a company’s
environmental training was a factor in its due diligence defence.
TRAINING WASN’T SUFFICIENT
TRAINING WAS SUFFICIENT
FACTS
FACTS
There was a risk of fuel and oil spilling or dripping from vehicles at an oil company’s
unmanned refuelling facility and leeching into the ground. So the company installed
an underground system called an oil water separator to capture the spills and filter
the hazardous substances from the water before discharging it into the environment.
The company’s C of A required the effluent discharged from the equipment to be
below 15 ppm but tests showed it was 28 ppm. The MOE charged the company with
failing to comply with its C of A.
On Jan. 1, 1999, it became illegal to import products containing
chlorofluorocarbons (CFCs) such as the refrigerant Freon (also known as R12).
In 2000, Environment Canada discovered that an Ontario company’s stores
possessed more than 4,000 bar refrigerators containing Freon that had been
imported after the ban took effect. It charged the company with three violations
of the Ozone Depleting Substance Regulations 1998 under the federal CEPA.
The company raised a due diligence defence.
DECISION
The Ontario Court of Justice dismissed the charges, ruling that the company had
exercised due diligence.
EXPLANATION
In finding that the company had shown due diligence, the court noted that it had
a reasonable system in place to ensure compliance with its C of A. Among other
things, it trained workers on how to:
•
•
•
•
•
•
Keep the facility clean;
Visually inspect the site;
Take care of minor spills;
Check oil levels;
Take oil samples from the separator; and
Record the sample results in a log book.
In addition, a supervisor regularly visited the site to check the log book, inspect the
site and ensure workers were properly following these procedures.
DECISION
The Ontario Superior Court of Justice convicted the company, ruling that it
hadn’t exercised due diligence.
EXPLANATION
The court found that the company took “no meaningful steps” to avoid violating
the Ozone Depleting Substance Regulations 1998. For example, although the
company provided environmental training, workers weren’t adequately trained
to ensure that only CFC-free products complying with federal environmental
law were imported and distributed for sale. Instead, one worker testified that
he was told about the new no-CFC rule but not given any training on it. He also
testified that if he saw R12 labelling on a box, “it wouldn’t mean a lot to him.”
The company should’ve educated workers about the new CFC provisions in the
regulations and trained its outlet retail workers to look for bar fridge products
with certain labels indicating the presence of CFCs, explained the court.
R. v. Canadian Tire Corp., [2004] CanLII 4462 (ON SC), July 21, 2004
R. v. Petro-Canada, [2009] O.J. No. 1704, April 28, 2009
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