from the editors of Insider www.OHSInsider.com C-45: Answers to Your Frequently Asked Questions Volume 7 - Issue 10 OCTOBER 2011 FEATURES C-45 1 Answers to some of the most frequently asked questions about criminal negligence and workplace safety. T he last two years have seen a sudden spate of criminal negligence prosecutions brought against companies and individuals under the law still unofficially referred to by its original bill number, C-45. So C-45 is now back in the front of the minds of many safety coordinators, who are once again Key Dates in the History of C-45 (p. 4) filled with questions about C-45. So here’s an overview of the changes made by C-45 At a Glance (p. 5) C-45, answers to 10 of the most frequently asked questions (FAQs) about them C-45 Sentencing Factors (p. 6) Incident Response 1 Make sure you have enough people qualified to provide first aid in your workplace. and a timeline of significant C-45 enforcement developments that have occurred since the law took effect in March 2004. Know the Laws (p. 16 & 17) Interview with Yvonne O'Reilly 7 Meet the Conference Chair of the OHS Summit. “who undertakes, or has the authority, to direct how another person does work WHMIS 8 OHS Month in Review 9 Case of the Month 9 Take an Inventory of the Hazardous Substances in Your Workplace ON Company Can Fire Worker for Video of Dangerous Workplace Prank Why Your OHS & Wellness Programs Should Work Together Dos & Don'ts 18 20 Expressly Ban Weapons from Your Workplace Don't Ignore Workers' Concerns about Co-Worker's Behaviour 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 [email protected] Robin L. Barton Editor C-45 is the name of the bill that made changes to the Criminal Code (Code). One of the key changes was the addition of Sec. 217.1, which says that every person REGULARS Business Case C-45 OVERVIEW or performs a task” must “take reasonable steps” to protect that other person from bodily harm arising out of the work. continued inside ON PAGE 2 INCIDENT RESPONSE: How to Comply with First Aid Provider Requirements W orkers are bound to get injured in the workplace no matter how good your OHS program is. But with any luck, they’ll suffer only minor cuts, scrapes, bumps and bruises. The OHS laws require companies to have workers trained in first aid onsite to EXECUTIVE SUMMARY treat such minor The Law Says: Employers must ensure that there are sufficient workers in the workplace who are qualified to provide first aid. injuries—and to Take These 5 Steps to Comply with First Aid Provider Requirements: handle more serious 1. Determine number and type of first aid providers needed; injuries and illnesses 2. Ensure designated workers are qualified to be first aid providers; until workers can 3. Let co-workers know who first aid providers are; get proper medical 4. Provide first aid kits or first aid rooms; and treatment. We’ll tell 5. Make sure first aid providers keep records of the treatment they provide. you what steps to Tool: Model First Aid Record. take to ensure that continued inside ON PAGE 14 2 SAFETY COMPLIANCE INSIDER Board of Advisors Andrew Cooper, CHSC University of Alberta Edmonton, AB Cheryl A. Edwards Heenan Blaikie LLP Toronto, ON “Criminal negligence”—that is, the act of doing something forbidden by the law or omitting to do something one has a legal duty to do when the act or omission shows “wanton or reckless disregard for the lives or safety” of others—was already a crime under the Code when C-45 was enacted. By adding the new Section 217.1 duty, C-45 made it possible to hold a company or individual guilty of criminal negligence for failing to meet the duty to protect a person doing work if the failure to protect was the result of wanton or reckless disregard for life or safety and caused death or bodily harm to the worker or a person affected by the work. C-45 isn’t just about liability. It also deals with the consequences of violations. It added Sec. 718.21 to the Code, which sets out 10 factors that a court must consider when sentencing an “organization,” such as a company, that was convicted of criminal negligence. (See page 6 for a complete list of these factors.) Norman A. Keith, CRSP Gowling Lafleur Henderson LLP Toronto, ON Ken Krohman MacKenzie Fujisawa Vancouver, BC C-45 FAQs Fred C. Leafloor, CRSP, CHSC Safety First Intl. Services Dartmouth, NS Here are answers to 10 FAQs about C-45. David G. Myrol McLennan Ross LLP Edmonton, AB Q:Can You Be Prosecuted for Both Criminal Negligence & an OHS Offence Yvonne O’Reilly, CRSP O’Reilly Health & Safety Consulting Toronto, ON A:Yes. The concept of “double jeopardy” protects people from being prosecuted for the Same Incident? twice for the same crime based on the same facts. But it doesn’t prevent the government from going after companies or individuals for violations of different laws for the same event. A wanton or reckless disregard for safety that results in death or bodily injury may be both an act of criminal negligence under C-45 and a violation of OHS law. So a defendant could be prosecuted and penalized under either or both laws. Wayne Pardy, CRSP Q5 Systems St. John’s, NL Barbara Semeniuk, BSc, CRSP Purcell Enterprizes Edmonton, AB For example, several defendants were charged with criminal negligence in Ontario for the collapse of a scaffolding platform in which four workers died and one was seriously injured. They were also charged with OHS violations based on this incident. Your Plain Language Guide to C-45, OHS & Due Diligence www.OHSInsider.com EDITOR: ROBIN L. BARTON Managing editor: GLENN S. DEMBY, ESQ. Q: Is There a Time Limit for Bringing Criminal Negligence Charges? LAYOUT: TRACY BRIGHTMAN A:There’s no “statute of limitations,” or time limit, on criminal negligence charges. 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. 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. Publications Mail #40065442. Printed in Canada. WSLETTER NE & 1-800-667-9300. Fax 1-250-493-1970 or visit our website at http://www. SafetyComplianceInsider.com NIC PUB TRO LI EC SH EDITORIAL EXCELLENCE AWARD WINNER NDATIO FO U N please call our customer service centre at EL S ER To order a subscription to Safety Compliance Insider for $397/12 months - So if a serious safety incident happened on April 1, 2004—the day after C-45 took effect—the Crown could still bring criminal negligence charges based on it now. But C-45 isn’t retroactive. That is, C-45 took effect March 31, 2004. So the Crown may file criminal negligence charges only for serious safety incidents that occurred after that date. Q: Which Workplaces Does C-45 Cover? A: C-45 works differently than OHS law. Most workplaces are subject to the OHS laws in their particular province or territory. (Federal OHS law applies to For more safety compliance advice, visit us on the web at www.OHSInsider.com 3 workplaces in designated industries with national scope, such as railways, regardless of where they’re located.) In contrast, the Criminal Code is a national law that applies across Canada. Thus, C-45 charges can be brought against any kind of workplace located anywhere in the country. Q: Does Criminal Negligence Apply Just to Fatalities? A: No. There are two kinds of criminal negligence charges that can now be brought in a serious safety incident: • Sec. 220 applies to anyone who by criminal negligence causes a death; and • Sec. 221 applies to anyone who by criminal negligence causes bodily harm to another person. For example, in the Ontario scaffolding case mentioned above, the defendants were charged with four counts of criminal negligence causing death for the fatalities and one count of criminal negligence causing bodily harm for the injured worker who survived. Q: Does C-45 Apply Only to Death or Injuries Suffered by Workers? A: No. Criminal negligence charges simply require the defendant to cause death or bodily harm to another person. So such charges could be brought if, say, a crane collapses at a construction site and kills a passer-by. In fact, in a pending BC case, the navigating officer of a ferry faces criminal negligence charges for the deaths of two passengers. Q: Is Due Diligence a Defence to Criminal Negligence? A:Technically, due diligence isn’t a defence to criminal negligence charges in the same way that it’s a defence to OHS violations. But as a practical matter, proving that you exercised due diligence makes it impossible to be convicted of criminal negligence. Explanation: To prove criminal negligence, the Crown must show that the company or an individual: 1) violated the duty to take “reasonable steps” to prevent bodily harm; and 2) showed wanton or reckless disregard for the safety of others. If a defendant can prove that it exercised due diligence—that is, took all reasonable steps to prevent the incident and the injury or fatality—then it can create reasonable doubt as to either or both of these elements of the crime. For example, if a company implemented measures to keep the incident from happening, it’ll be hard for the Crown to prove that it acted wantonly or recklessly. Thus, due diligence is, in effect, a defence to C-45 charges. Q:Are Criminal Negligence Charges the Same for Companies & Individuals? A: No. The elements the Crown must prove for a criminal negligence charge differ depending on whether the defendant is an individual or an “organization,” such as a company. For an individual, the government must show that the individual, in directing how another person does work: • Violated his duty to take “reasonable steps” to prevent bodily harm; and • Showed wanton or reckless disregard for the lives or safety of others. For organizations, the Crown must prove that: • One or more “representatives,” while acting within the scope of their authority, committed criminal negligence as described above for individuals; and • A “senior officer” departed markedly from the standard or care that could reasonably be expected to prevent a representative from committing that offence. Listen to a Webinar to Learn How to Manage C-45 Liability Risk At OHSInsider.com, you can listen to a webinar by Norm Keith, one of Canada’s leading OHS lawyers, on what every employer and safety coordinator needs to know to minimize the growing risk of C-45 prosecution for serious safety incidents. You’ll get the practical “howto” advice you need to greatly minimize the risk of C-45 liability for yourself, your employer and other directors, managers and supervisors. October 2011 © Bongarde 4 Q: Who’s a “Representative” under C-45? Key Dates in the History of C-45 A:The Code defines a “representative” of an organization as a director, partner, employee, member, agent or contractor of the organization. Thus, nearly anyone associated with a company could arguably be considered its representative— from the lowest worker all the way to the CEO. It’s important to stress that the word “contractor” is specifically included in the definition of “representative.” As a result, you can’t assign or contract out of liability for criminal negligence to a prime contractor or constructor like you can for some OHS liability in certain jurisdictions. In other words, if your contractor engages in conduct that constitutes criminal negligence, your company could also be on the hook. Insider Says: For more information on contractors and OHS liability, see “12 Dos & Don’ts for Dealing with Contractors, Insider, Sept. 2009, p. 1.”. Q: Who’s a “Senior Officer” for C-45 Purposes? A:As noted previously, for a company to be held liable for criminal negligence, a “senior officer” must depart markedly from the standard or care that could reasonably be expected to prevent a representative from committing the offence. “Senior officers” are a subset of “representatives.” The Code defines “senior officer” as a representative who: • Plays an important role in the establishment of an organization’s policies; or • Is responsible for managing an important aspect of the organization’s activities. In the case of a corporation, this definition would include a director, its CEO and its CFO. Thus, members of upper management are considered senior officers for C-45 purposes. But because the definition is so broad, in some cases, a person lower down in the corporate hierarchy, such as a plant manager or project manager could also be considered a senior officer. Q: Does Insurance Cover Liability under C-45? A: Many companies have directors and officers (D & O) insurance to protect their senior management from liability when they act on the company’s behalf. But if a company • March 31, 2004: Bill C-45 takes effect. • March 3, 2005: Criminal negligence charges against an Ontario supervisor in connection with a worker’s death were dismissed when he pleaded guilty to three OHS violations. • May 17, 2007: A Québec garage service manager was charged with criminal negligence after two mechanics were seriously burned. The case is still pending. • March 17, 2008: Transpavé, a Québec manufacturer, pleaded guilty to criminal negligence in connection with a worker’s death and was fined $100,000, the first conviction under the amended Criminal Code. • Feb. 2010: The police charged Millennium Crane Rentals, David Brian Selvers and Anthony Vanderloo with criminal negligence after a worker was crushed to death by a crane. • March 16, 2010: Authorities in BC charged Karl Lilgert, the navigating officer of the Queen of the North ferry, with criminal negligence for the deaths of two passengers in the ferry’s sinking. This case is still pending. • March 25, 2010: The United Steelworkers union launched a private criminal negligence prosecution against Weyerhaeuser for a worker’s death in Nov. 2004. • Sept. 2010: In the first C-45 case to go to trial, a Québec employer was convicted of criminal negligence for the death of a worker, who was pinned by a backhoe driven by the employer. • Oct. 12, 2010: The Ontario police charged Metron Construction Corp., Joel Swartz, Benny Saigh and Vadim Kazenelson with criminal negligence for the deaths of four workers in a scaffolding collapse. This case is still pending. • Nov. 2010: In the second C-45 trial, an equipment operator and foreman were acquitted in Québec on criminal negligence charges for an incident in which a train hit a maintenance vehicle, killing a worker and injuring three others. • March 2011: The Crown dropped the charges against Millennium Crane Rentals and the other defendants, claiming that there was no “reasonable prospect of conviction based on the evidence we have.” For more safety compliance advice, visit us on the web at www.OHSInsider.com 5 officer or director is convicted of criminal negligence for acts or omissions performed while carrying out his duties for the company, D & O insurance (or any other insurance for that matter) probably won’t cover the fine, although it might cover the legal costs. BOTTOM LINE The passage of C-45 opened up a new world of potential liability for companies and individuals for serious lapses in safety. Although prosecutors have been slow to use this new tool, the spate of recent criminal negligence cases indicates that they’re getting more comfortable going after the people responsible for workplace safety failures in criminal court as opposed to a regulatory OHS proceeding. So it’s important that safety coordinators understand how C-45 works so they can help their companies avoid liability for criminal negligence. C-45 AT A GLANCE 1. You can be prosecuted for both criminal negligence and OHS violations for the same incident. OHSInsider.com A BONGARDE SITE Did you know that OHSInsider.com has: • A library of safety compliance webinars and videos • 100s of downloadable policies, checklists and training materials • Access to the entire archive of Safety Compliance Insider newsletters • And many more things designed to make your job easier Visit www.OHSInsider.com for more information. FEATURED TOOLS Every week, at least one new tool is featured on www.OHSInsider.com. Here are a few of the recently featured tools you can download and adapt for your workplace: 1. Model Social Media Policy 2. There’s no time limit on when the government can bring criminal negligence charges. 2. Safety Talk on Domestic Violence 3. Model Cell Phone Use Policy 3. C-45 applies to all workplaces across Canada. 4. Contractor Pre-Hiring Safety Assessment Checklist. 4. Criminal negligence charges may apply not only when there’s a fatality but also when someone has been injured. It also applies to the deaths of or injuries to anyone—not just workers. safetyposter.com 5. Due diligence is essentially a defence to criminal negligence, although not in the same way as to OHS violations. 15% OFF 6. What the Crown has to prove for a criminal negligence charge depends on whether the defendant is an individual or an “organization,” such as a company. Use Discount 7. The definitions of “representative” and “senior officer” for C-45 purposes are very broad. 8. You can’t assign or contract out of C-45 liability. 9. Insurance won’t cover your fine for a criminal negligence conviction. All Labour Law Compliance Posters Code 4884 Labour Law Compliance October 2011 © Bongarde 6 C-45 SENTENCING FACTORS C-45 amended the Criminal Code to add Sec. 718.21, which says that a court that sentences an organization must take into consideration the following factors: a. Any advantage realized by the organization as a result of the offence; b. The degree of planning involved in carrying out the offence and the duration and complexity of the offence; c. Whether the organization has attempted to conceal its assets, or convert them, in order to show that it’s not able to pay a fine or make restitution; d. The impact that the sentence would have on the economic viability of the organization and the continued employment of its workers; e. The cost to public authorities of the investigation and prosecution of the offence; g. Whether the organization was—or any of its representatives who were involved in the commission of the offence were—convicted of a similar offence or sanctioned by a regulatory body for similar conduct; h. Any penalty imposed by the organization on a representative for his role in the commission of the offence; i. Any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and j. Any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence. f. Any regulatory penalty imposed on the organization or one of its representatives for the conduct that formed the basis of the offence; YOU MAKE THE CALL Does Workers’ Comp Cover Accident on Trip with Work- and Non-Work-Related Purposes? What Happened A worker drove from a work camp to a nearby town to pick up company supplies and mail bags. While he was there, he also engaged in some personal business, such as getting his car washed and eating. He got into an accident on the way back due to icy road conditions and was injured. Question Should workers’ comp cover the worker’s injuries? Answer Yes. To read the reasons for the Workers’ Compensation Appeals Commission’s ruling, see the fifth case under ALBERTA on page 10. For more safety compliance advice, visit us on the web at www.OHSInsider.com 7 Yvonne O’Reilly: An Interview with the Chair of this Year’s OHS Summit T he Westray mining tragedy, in which 26 workers died in an explosion at a Nova Scotia coal mine, had a big impact on the world of workplace safety. The resulting inquiry lead to changes in Nova Scotia’s and other jurisdictions’ OHS laws and Bill C-45, which amended the Canadian Criminal Code to make it easier to hold corporate executives who fail to take steps to protect the lives of their workers criminally liable. It was also one of the things that drove Yvonne O’Reilly, an OHS consultant and Conference Chair of the OHS Summit 2011, into the field of workplace safety. Even once you think you have a handle on the regulators’ expectations, the next hurdle is getting senior management’s support to implement those reasonable steps, says Yvonne. To do so, you often have to overcome what she calls the “silo mentality.” Many managers see safety as “someone else’s job” and put it in a discrete box, separate from the rest of the company’s operations, she explains. It’s up to the safety coordinator to teach them that safety is everyone’s responsibility with wide-ranging impacts. But educating management on safety’s “interconnectivity” can be a hard sell, she notes. Yvonne says that she was riveted by the inquiry and its “dissection of what went wrong.” It made her realize the importance of a comprehensive management system that outlines all stakeholders’ accountability. As a result, she went back to school and achieved a Canadian Registered Safety Professional designation. For over 10 years, Yvonne has worked in occupational health and safety, the last seven as the owner and principal consultant of O’Reilly Health & Safety Consulting, a national consulting practice based in Ontario. In her role as an OHS consultant, Yvonne aims to help her clients do three things: We recently spoke with Yvonne about the challenges facing safety coordinators and how the OHS Summit can help them meet those challenges. Challenges for Safety Coordinators To exercise due diligence, your company has to take all reasonable steps to comply with the OHS laws. But Yvonne says that one of the biggest challenges facing safety coordinators is understanding OHS regulators’ expectations as to due diligence—that is, what do they consider reasonable steps for compliance with the OHS requirements? After all, your definition of reasonable and the regulator’s may be very different— and ultimately it’s the regulator’s definition that matters. 1. Achieve their goals for preventing incidents and injuries in the workplace; 2. Take the reasonable steps required for compliance with the OHS laws; and 3. Document their actions so that they can prove they exercised due diligence if needed. Her approach is the essence of the theme of this year’s OHS Summit: “Due Diligence: Defining, Establishing and Demonstrating Your Record of Compliance.” For the rest of our interview with Yvonne and her thoughts on the OHS Summit 2011, go to OHSInsider.com. INSIDER SOURCE Yvonne O’Reilly, CRSP: O’Reilly Health and Safety Consulting; (416) 294-4141; www.ohsconsulting.ca; [email protected]. Current Newsletter Subscribers and OHS Insider Members Book early and you can Save up to $500 off the list price... OHS Summit 2011 Due Diligence: Defining, Establishing & Demonstrating Your Record of Compliance Oct 24th and 25th Hyatt Regency, Toronto, ON Conference Chair Yvonne O'Reilly, CRSP O'Reilly Health & Safety Consulting You are invited to participate in Canada’s leading networking and educational conference for OHS professionals and in-house lawyers. Visit www.ohssummit.ca for more information. Call 1.800.667.9300 to talk to a Bongarde representative and find out more about the OHS Summit 2011. October 2011 © Bongarde 8 WHMIS Take an Inventory of the Hazardous Substances in Your Workplace T he OHS and environmental laws regulate the handling, storage, use and disposal of hazardous substances. Best example: the WHMIS requirements. To ensure that your company complies with these requirements, you must first know exactly what hazardous substances are present in your workplace. The best way to get this information is to compile a hazardous substance inventory. Benefits of a Hazardous Substance Inventory Taking an inventory of the hazardous substances in your workplace has several benefits: Shows the “big picture.” An inventory gives you a complete picture of all of the hazardous substances currently present in the workplace at a given point in time. You can then group these substances into the major hazard classes, such as flammable, corrosive, toxic and reactive, to begin to see the biggest hazards in your facility. Identifies training needs. You can use the completed inventory to develop a compliant WHMIS or hazardous substance training program or ensure that your current program covers everything that it should. Reveals any supply issues. Inventories can help you identify potential supply problems or inefficiencies and opportunities to correct these defects. For example, the inventory might reveal an opportunity to store smaller quantities of a hazardous substance by consolidating storage locations or to streamline your ordering process so that a worker can’t inadvertently order a particular product for which ample supplies already exist in different storage sites. Provides an opportunity to consider alternatives. Conducting a hazardous substance inventory gives you the chance to consider replacing current products with less hazardous substitutes to reduce risks to workers and the environment. How to Conduct the Inventory You can keep your hazardous substance inventory in almost any format. (On OHSInsider.com, there’s a Model Hazardous Substance Inventory Form that you can adapt and use.) To conduct the inventory, take the following six steps: Step #1: Put Together Inventory Team Assemble a team to conduct the inventory, including any dedicated safety or EHS workers, a production/process supervisor, a member of the maintenance department and one or two line workers. If you have a JHSC, you should involve its members. You could also include members of management, HR staff and representatives of other major departments in your company. Step #2: Divide the Workplace Hazardous substances are likely to be scattered throughout your workplace. So divide the facility into several sections or areas and assign an individual or group to each section, depending on its size. Provide an inventory form for their use so that you get the same information from each individual or group. (On OHSInsider.com, there’s a Model Hazardous Substance Inventory Form that you can download and adapt.) Step #3: Instruct Team Instruct team members on how to conduct the inventory. For example, explain what kinds of substances they should be looking for, where to find MSDSs for these substances and what information to include in the inventory form. Also, explain what they should do if they encounter a problem, such as an unlabeled container or a hazardous substance that’s missing an MSDS. Step #4: Compile Individual Forms Compile completed inventories into one master hazardous substance inventory. Step #5: Evaluate Information in Inventory Evaluate the information in the master inventory. For example, make sure that your WHMIS training program covers all of the hazards posed by the hazardous substances in the inventory and that you have current MSDSs for each substance. Also, consider ways to improve the efficiency of the company’s ordering process and storage of hazardous substances. And consider less dangerous or toxic alternatives to some of the substances you’re presently using. Step #6: Establish Method for Updating Inventory Conducting an inventory just gives you a snapshot of the hazardous substances in your workplace at a given time. Changes in operations may lead to the elimination of some hazardous substances—and the introduction of new ones. So establish a method for ensuring that the inventory is reviewed and updated at least once a year. In addition, develop a method for adding new substances the first time they’re used in the workplace. For more safety compliance advice, visit us on the web at www.OHSInsider.com 9 OHS Month in Review A roundup of important new legislation, regulations, government announcements, court cases and board rulings CASE OF THE MONTH ON Company Can Fire Worker for Video of Dangerous Workplace Prank When it comes to disciplining workers, the accepted approach is the use of progressive discipline in which the level of punishment increases each time the worker commits another infraction, culminating in termination if the problem continues. As a result, courts and boards generally don’t uphold the firing of a worker with no disciplinary record at all. But if the worker’s conduct was particularly egregious, they may rule that immediate termination was justified. A recent case from Ontario is a good illustration of the kind of conduct that can result in immediate termination, even for a first offence. THE CASE What Happened: Inspired by the TV series Jackass, workers at a construction site engaged in an escalating series of dares and stunts in the site’s lunchroom. The culmination: A worker bared his genitals and allowed his scrotum to be stapled to a wooden plank—all of which was caught on videotape. The “stapling video” was posted online and soon became infamous in the area’s construction industry. When the company learned about the video, it fired the worker for violating its harassment policy, which barred pranks of a sexual nature. What the Board Decided: The Ontario Labour Relations Board upheld the worker’s termination even though the incident was his first offence. How the Board Justified the Decision: The video was shot in the workplace (although not during work hours) and in the presence of co-workers. Although the worker wasn’t responsible for posting the video online, he should’ve known that’s what would happen. And his dangerous conduct violated not only company policy but also OHS law, which bars workers from engaging in pranks in the workplace. The Board rejected the worker’s argument that shows like Jackass had changed “the norms of behaviour,” saying that this explanation doesn’t justify the conduct or make it acceptable in the workplace. The Board concluded that permitting his scrotum to be stapled to a wooden board was inappropriate and “demonstrated a great deal of stupidity.” To make things worse, the worker’s employer was readily identifiable in the video. So when it became well known to people in this safety sensitive industry, it undermined the company’s reputation as a safety conscious contractor with a highly skilled workforce. In fact, the “stapling video” was the topic of discussion at a construction industry conference. The Board found that the pattern of pranks this worker and others had engaged in could easily lead to more dangerous stunts in a workplace where safety should be paramount. The company had a duty to ensure a safe workplace. By firing the worker for this first offence, it clearly and appropriately demonstrated that it won’t tolerate this kind of behaviour at any of its worksites [International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd., [2011] CanLII 46582 (ON LRB), July 28, 2011]. ANALYSIS The worker in the ThyssenKrupp case tried to argue that the workplace’s culture justified and excused his conduct. He said it was an all male environment in which workers regularly teased each other and engaged in jokes, pranks and dares. He pointed out that no one had objected when he’d performed his stunt and, in fact, they cheered him on in encouragement. Rightfully so, the Board wasn’t impressed with these arguments. The Board made it clear that this kind of behaviour shouldn’t be tolerated in any workplace, no matter how much members of the workforce may enjoy it. SK LAWS & ANNOUNCEMENTS CASES Aug. 11: Pregnancy Discrimination Is a Problem The Saskatchewan Human Rights Commission’s annual report says pregnancy discrimination continues to be a major concern in workplaces. One in 10 complaints of discrimination at job sites involves pregnancy. The report outlines one case in which a pregnant worker was told she wouldn’t get any job training because her employer felt it would be a waste of time. The company never admitted any wrongdoing, but the fired worker received a $5,000 settlement after the commission investigated. Trenching Violation Costs Construction Company $3,200 After a routine inspection, a construction company pleaded guilty to violating Sec. 263(1) of the OHS regulations by failing to ensure a worker in a trench was protected from cave-ins or sliding material by means of cut back or shoring. The court fined it $3,200 [Allan Construction Co. Ltd., Govt. News Release, Aug. 16, 2011]. Aug. 16: New Safety Ads Aimed at Young Workers WorkSafe Saskatchewan launched a new ad campaign aimed at young people. The Work2Live ads are in malls across the province and feature as the main character a worker ant. One ad relays the message, “If it feels wrong, it probably is wrong.” The other ad says, “There's no such thing as a stupid question.” CASES NS Company Liable for Pedestrian’s Fall on Construction Debris Left on Sidewalk A man ruptured his Achilles tendon while walking on a sidewalk in front of an apartment building under construction. He sued the building owner. The court ruled that the man fell on accumulated construction debris that was on a sidewalk open to the public. Although the owner’s contractor claimed to work from a “safety/cleanliness perspective,” he had no records of any specific programs in place to ensure safety. Thus, the building owner was negligent for breaching the appropriate standard of care by letting debris accumulate in foreseeably dangerous circumstances, concluded the court. It ordered the owner to pay the man over $51,000 in damages [Mielke v. Harbour Ridge Apartment Suites Ltd., [2011] N.S.J. No. 441, Aug. 15, 2011]. October 2011 © Bongarde 10 FED LAWS & ANNOUNCEMENTS CASES Aug. 12: IWH Releases Several New Studies The Institute for Work & Health released new studies on: • Creative innovations for workers with arthritis • How workplace policies affect return to work • Patient expectations and return to work • Immigrant experiences after a workplace injury or illness. Board Rules Against Two Whistleblowers But in Favour of a Third Three scientists fired by Health Canada sued, claiming they were terminated in retaliation for raising concerns over food safety, specifically the use of a bovine growth hormone to enhance milk production in cows. The Public Service Labour Relations Board dismissed the grievances of two scientists but ordered Health Canada to reinstate the third. The Board’s written decision isn’t public yet but is expected to be appealed [Aug. 9, 2011]. ALBERTA LAWS & ANNOUNCEMENTS CASES cont'd July 29: OHS Charges Laid in Stage Collapse A stage collapsed at the Big Valley Jamboree during a severe storm, killing a woman. Nearly two years later, the government laid 33 OHS charges against three companies for their roles in the incident. The charges allege, among other things, that the production company failed to ensure that the stage and equipment were strong enough to withstand the stresses imposed by the sudden storm. Security Company Penalized $92,000 for Guard’s Rape A security company was fined $5,000 for failing to ensure the safety of a female guard who was raped by an intruder at a construction site nearly five years ago. In addition, the court ordered the company to pay $87,000 to a new program at SAIT Polytechnic for safety training of workers working alone. The guard’s attacker was convicted and sentenced to eight years’ jail [Garda Canada Securities Corp., Govt. News Release, July 11, 2011]. Aug. 10: Province Steps up Employment Standards Enforcement Alberta is stepping up efforts to enforce employment standards, such as requirements on maternity leave, overtime pay and termination notice. It’s hiring six new Employment Standards officers and increasing use of third-party auditors. It has also created a new Employment Standards Tool Kit for employers to improve awareness of standards and give employers a clear picture of their rights and responsibilities. CASES Company Not Liable for Unforeseeable Worker Misconduct An experienced tire technician inflated a tire on a split rim wheel assembly known as a “widow maker” without using the restraints required by company safety policy. The tire exploded, causing serious head injuries. The company was charged with multiple OHS violations. The court dismissed all charges, ruling that the company had exercised due diligence. It provided appropriate training, restraints, hands-on supervision and communication of safety rules. A worker had reminded the technician minutes before the incident to use restraints and the technician said he’d do the work safely. So it was unforeseeable that he’d act so “irrationally” by doing the work without restraints, concluded the court [R. v. Fountain Tire (Olds) Ltd., [2011] ABPC 236 (CanLII), July 18, 2011]. Methanol Release Leads to $160,000 Fine & Four Months’ House Arrest A company manager told workers to release flammable wastewater onto the ground at the back of the company’s property. The next day, a welder inadvertently ignited the wastewater with a welding torch, causing a fire. No one was injured. When investigators arrived at the site in response to an anonymous complaint, the manager denied that the release had occurred. The company was fined $160,000 under the Environmental Protection and Enhancement Act for releasing wastewater containing methanol into the environment and providing false or misleading information to investigators. The manager also pleaded guilty to these charges and was sentenced to four months’ house arrest [Western Biodiesel Inc. and Jason Freeman, Govt. News Release, Aug. 16, 2011]. Apprentice’s Amputated Leg Costs Company $90,000 An apprentice crane operator’s lower left leg was crushed when he stepped into the moving draw works of a crane he was operating. He’d left his safety boots in his vehicle and was wearing casual Crocs when the incident occurred. His leg had to be amputated close to his hip. The company pleaded guilty to failing to assess a work site and identify existing or potential hazards. The court fined it $5,000 and ordered it to pay $85,000 to the Alberta Construction Safety Association to create and implement a hazard assessment course [Agra Foundations Ltd., Govt. News Release, July 19, 2011]. Injury Suffered in Traffic Accident Was Work-Related A worker drove from a work camp to a nearby town to pick up company supplies and mail bags. He got into an accident on the way back due to icy road conditions and was injured. His workers’ comp claim was denied. On appeal, the Workers’ Compensation Appeals Commission upheld the claim, ruling that the accident happened in the course of the worker’s employment. Although he engaged in some personal business while in town, such as getting his car washed and eating, his primary reason for making the trip was work-related [Decision No. 2011-618, [2011] CanLII 48066 (AB WCAC), July 18, 2011]. Defunct Company Fined Another $10,000 for Failing to Pay OHS Penalty The court fined a company an additional $10,000 for failing to pay a previous $90,000 creative sentence for OHS violations after a worker was run over and seriously injured by a bobcat as he was exiting it. The judge said the company hadn’t show due diligence in attempting to comply with the court order on its sentence. The company, which has since ceased operation, closed its bank account last year. But it made it a priority to pay other creditors, noted the court [Steve’s Oilfield Services (Edson) Ltd., Aug. 8, 2011]. Judge Dismisses Charges in Falling Plywood Case A judge dismissed charges under the Alberta Safety Code Act against a construction company after a sheet of plywood fell 44 floors to the ground from a construction site. The ruling was based on a technicality—that is, a discrepancy over the version of the building code with which the construction company was to comply. The company had claimed that it exercised due diligence and that the plywood didn’t come loose because it wasn’t secured properly but because of “a very wicked snowstorm” [EllisDon Construction Services, Calgary Herald, Aug. 9, 2011]. LAWS & ANNOUNCEMENTS Mining Company Pleads Guilty after Worker Is Run Over by Own Vehicle A 20-year-old mine worker drove a Toyota Landcruiser into the mine to deliver a piece of equipment to a co-worker. Part way down the steep ramp, he came upon another vehicle blocking his way. He stopped his truck, put it into neutral, applied the emergency brake and walked down the ramp toward the other vehicle. But the emergency brake failed and his vehicle rolled down the slope, striking him from behind. He died from internal injuries. The mining company pleaded guilty to two safety violations relating to the unsafe operation of a vehicle. It has yet to be sentenced [Procon Mining and Tunnelling, Aug. 3, 2011]. YT MB LAWS & ANNOUNCEMENTS July 22: Push for Protections for Workers Working Alone Jimmy Wiebe was working the graveyard shift alone at a gas station when he was killed by a lone assailant. Now one of his friends is pushing for a change to the laws that let a person work alone overnight. This issue has been raised in jurisdictions across Canada, including AB, BC and SK. For more safety compliance advice, visit us on the web at www.OHSInsider.com 11 BRITISH COLUMBIA LAWS & ANNOUNCEMENTS CASES Aug. 11: WorkSafeBC Planning Domestic Violence Guidelines According to the Vancouver Sun, BC is set to become the second province (after Ontario) to address domestic violence in the workplace. WorkSafeBC has been developing a handbook and online training resource that will help employers recognize the signs and symptoms of domestic abuse and better understand how to talk about it with a worker in a safe and supportive manner. The guidelines are the result of a special review panel on domestic violence convened by the chief coroner last spring. Must Health Service Accommodate Paramedic by Letting Him Only Drive? A part-time paramedic with multiple sclerosis had decreased sensation in his fingertips, making him unable to “palpate a pulse.” The health service wouldn’t let him work as a paramedic, saying being able to feel a pulse was a bona fide occupational requirement (BFOR). The Human Rights Tribunal dismissed his discrimination complaint, ruling that although being able to manually take a pulse was a BFOR, the employer should’ve accommodated him by letting him work as a driver while being paid as a paramedic. But a court said the Tribunal failed to consider whether that accommodation was an undue hardship for the employer. So it sent the case back to the Tribunal to decide that issue [Emergency Health Services Commission v. Cassidy, [2011] BCSC 1003 (CanLII), July 26, 2011]. Aug. 8: Forestry Ombudsman Releases Report on Tree Planters The BC Forest Safety Ombudsman’s report on a group of tree planters found in unsafe and substandard working conditions at a camp last July says that issues related to campsite notification, enforcement, contract qualification, training and the competitive tendering process all contributed to the situation. The report’s13 recommendations include: • Review of the current notification requirements for camp operators • Establishment of a contract qualification process for silviculture contractors • Creation of a professional standards code for members of the Western Silvicultural Contractors’ Association • Development of a shared delegated authority model for in-field inspections. July 27: Female Worker Injury Rates Increase A WorkSafeBC report shows total injury claims involving female workers have been steadily climbing over the past 30 years, while men’s injury claims have fallen. In 2010, 36% of all workplace injuries involved women, with health care workers and those employed in social assistance leading the number of female worker fatalities. But young men (age 15 to 24 years) maintain the highest injury rate of all age and gender groups—and nearly 97% of all workplace fatalities involve male workers. Sept. 15: New OELs Take Effect Effective Sept. 15, the Board of Directors of WorkSafeBC approved the adoption of new and revised American Conference of Governmental Industrial Hygienists Threshold Limit Values for eight substances, including: • Acetic anhydride • Carbon black • Ethyl benzene • Methyl isopropyl ketone • Soapstone. Worker Who Threw Wood that Hit Co-Worker Gets ‘Significant Suspension’ Two workers with a history of friction got into an argument. Later, while the co-worker was using the jointer, the worker threw a heavy piece of wood in his direction, hitting him in the legs. The company fired the worker. But an arbitrator ordered his reinstatement. The worker hadn’t intended to hit the co-worker. However, by throwing wood around, he committed a serious safety infraction and was careless about the potential consequences of his actions, especially when the co-worker was using dangerous machinery at the time. On the other hand, the worker didn’t have a history of violence and acknowledged the seriousness of his misconduct. So the arbitrator concluded that a “significant suspension” was appropriate [BC Door Co. v. United Steel, Paper and Forestry, Rubber, Manufacturing Energy Allied Industrial and Services Workers International Union, Local 1-1937 (Boston Grievance), [2011] B.C.C.A.A.A. No. 99, July 28, 2011]. Bartender Who Quit Not Entitled to Length of Service Compensation A bartender claimed that after her shift, she was followed in her car and almost run off the road by a customer whose advances she had spurned earlier in the evening. She didn’t file criminal charges or ask her employer to bar him from the pub. When the pub considered hiring the customer, she told her supervisor she’d try to work with him. But after he started working there, she abruptly quit. Five months later, she filed a claim for length of service compensation, arguing that she’d been bullied and forced to quit. The Tribunal upheld the denial of her claim on appeal. The employer had done nothing to make the bartender quit. And the customer hadn’t done anything “untoward” to her while they’d both worked there [Re: Stromquist, [2011] B.C.E.S.T.D. No. 72, July 5, 2011]. LAWS & ANNOUCEMENTS Oct. 1-7: Wellness Week The government reminded New Brunswickers that Wellness Week will take place from Oct. 1 to 7 this year. Wellness Week is a chance for workplaces, schools and communities to promote and celebrate wellness by hosting activities and events that address mental fitness and resilience, healthy eating, physical activity and/or tobacco-free living. July 25: HSS Launches YouTube Channel The Department of Health and Social Services (HSS) launched a new YouTube Channel, which has informational videos on public health, environmental health, social services, addictions and seniors programs. Aug. 4: Protect Workers from Giant Hogweed WorkSafeNB issued a hazard alert on giant hogweed, a noxious weed whose sap can cause skin irritation, blisters and blindness. When working near or with this hazardous plant, workers should: • Wear protective clothing, including waterproof gloves, long sleeve shirts, pants, and eye protection. Ideally, they should wear a disposable “spray suit” coverall on top of their normal clothing. • Avoid touching their eyes or wiping the sap on other parts of their body or clothes. • If skin comes into contact with the sap, wash immediately with soap and water, avoid sunlight exposure and seek medical treatment. • If contact is made with the eyes, flush immediately with water and seek medical treatment. NORTHWEST TERRITORIES NEW BRUNSWICK LAWS & ANNOUNCEMENTS Aug. 24: Legislature Approves Ban on Cell Phone Use While Driving The NWT legislature passed a bill amending the Motor Vehicles Act to make it illegal to text or talk on hand-held devices while driving. The law, which lets people drive with hands-free devices used in a handsfree manner, is set to take effect Jan. 1, 2012. October 2011 © Bongarde 12 ONTARIO LAWS & ANNOUNCEMENTS CASES cont'd Aug. 1: Construction Focus of Latest Safety Blitz The MOL’s August safety blitz focused on hazards involving equipment used to allow workers access to various locations at construction projects. Inspectors checked on: • Worker training on access equipment • Safe use, inspection and testing of access equipment • Maintenance records and other documentation • Rescue and emergency procedures. OK to Lay off Worker Returning from Medical Leave A worker was about to return from a lengthy medical leave when his employer laid him off because of financial problems. He filed a disability discrimination complaint, which the Human Rights Tribunal dismissed. The worker wasn’t laid off because he was disabled. The company had lost two key clients and was suffering from the poor economy. It was in the process of downsizing when the worker was about to return. In fact, it also laid off three other people and cut the salaries of members of senior management [Munroe v. Padulo Integrated Inc., [2011] HRTO 1410 (CanLII), July 27, 2011]. July 27: MOL Releases Updated Guidelines The MOL released several updated guidelines: • Guide to the OHS Act • Guide for JHSCs and Representatives • Confined Spaces Guideline. Aug. 10: MOL Launches New Farm Safety Page The MOL has a new page dedicated to workplace health and safety resources for farming operations, which contains publications, guidelines, a sector plan, laws and regulations, and links to other information relating to farm health and safety. July 25: Hospital Workers Get Bacterial Infection Two health care workers contracted Clostridium difficile (C. difficile), a bacterial infection. An outbreak recently occurred in three hospitals in the Niagara, ON region. MOL inspectors visited the hospitals and met with the JHSCs to discuss issues relating to the outbreak. They also issued a number of orders related to updating measures and procedures for infection prevention and control. July 28: Mayor Not Penalized for Talking on Cell While Driving The police won’t charge the mayor of Toronto after he acknowledged talking on his cell phone while driving. No charges have been pursued against other motorists who admitted after the fact to driving while talking on the phone and equal treatment will be given to the mayor, said a police spokesperson. CASES Not a Reprisal When Discipline Occurs Before Exercise of Protected Right A worker filed a reprisal complaint under the OHS Act, claiming that he’d been disciplined for raising safety concerns about the company’s general operations and his relationship with some supervisors. The Labour Relations Board dismissed his complaint, ruling that because the only employment consequences about which he specifically complained occurred before he invoked any right under the Act, they can’t have occurred because he exercised such rights [Dubuc v. Ontario (Community Safety and Correctional Services), [2011] CanLII 46615 (ON LRB), July 29, 2011]. Board Refuses to Suspend Order Requiring Foot Protection An MOL inspector ordered a store to ensure that all workers exposed to the risk of a foot injury wore appropriate foot protection. The store asked the Labour Relations Board to suspend the order because it already required workers who operate pump jacks to wear safety toe caps. The Board refused. As the inspector noted, other workers in the receiving area and who handled stock were also exposed to foot injuries and so should have to wear appropriate foot protection, too [Dollarama LP v. Marcelo, [2011] CanLII 46599 (ON LRB), July 22, 2011]. Transfer of Worker Being Stalked Wasn’t a Disability Accommodation A worker at a liquor store who’d been harassed and stalked by a customer was transferred to a store outside the city at her request. When her co-workers learned the reason for her transfer, they raised concerns that working with her endangered their own health and safety. She filed a complaint, claiming that the employer and her co-workers had discriminated against her based on a disability (general anxiety disorder). But the Human Rights Tribunal dismissed her complaint. There wasn’t sufficient evidence that she was disabled under the law or that she’d requested the transfer as an accommodation for her alleged disability—she asked for the transfer so it would be harder for the stalker to find her [Crowley v. Liquor Control Board of Ontario, [2011] HRTO 1429 (CanLII), July 29, 2011]. Harassment Complaint Based on Blog Could Proceed A group of managers at a detention centre filed a complaint against their employer for failing to provide a workplace free from harassment by not addressing a blog by correctional officers that contained offensive and slanderous material directed at them. The employer asked the Grievance Board to dismiss the complaint but it refused. The managers raise a viable argument that the blog’s content created a poisoned workplace that the employer failed to address as was its duty, explained the Board [Lee v. Ontario (Ministry of Community Safety and Correctional Services), [2011] O.P.S.G.B.A. No. 11, July 21, 2011]. Company Could Fire Electrician for Intentionally Smashing Motor A company fired an electrician for taking a motor and smashing it to the ground three times. He challenged his termination. But the arbitrator ruled that it was justified. Although the electrician didn’t have a disciplinary record, the evidence indicated that he was difficult to work with and manage. He complained a lot and questioned everything, including changes to his shift. He would go missing for an hour or more. And co-workers didn’t want to work with him. So while the arbitrator felt some sympathy for the worker, it concluded he was largely “the author of his own misfortune” [Ya Ya Foods Corp. v. National Automobile, Aerospace, Transportation and General Workers’ Union of Canada, Local 462 (Kagan Grievance), [2011] O.L.A.A. No. 331, July 18, 2011]. Company’s Treatment of Pregnant Security Guard Was Discriminatory Within minutes of a security guard‘s telling the company’s sole officer that she was pregnant, he removed her from the schedule for “health and safety reasons” and told her to go on short term disability. Because these benefits didn’t cover her expenses, she got other employment, including office work for another security company. When the company found out she was working for a competitor, it fired her. The Human Rights Tribunal ruled that the company and officer had discriminated against the guard because of her gender by treating her based on stereotypes and unsupported assumptions about what pregnant women could and couldn’t do. The Tribunal ordered the defendants to pay her $20,000 in damages in addition to lost wages. It also ordered all management personnel to get human rights training and to create a written policy on pregnant workers [Graham v. 3022366 Canada Inc. (c.o.b. Response Safety Security & Investigation), [2011] O.H.R.T.D. No. 1472, Aug. 5, 2011]. Yarn Maker Fined $75,000 for Partial Arm Amputation A worker for a yarn manufacturer opened the cover of a machine used to create yarn and found excessive fibres. When he tried to remove them, his finger got caught. His arm was drawn into the machine and partially amputated. The manufacturer pleaded guilty to a guarding violation and was fined $75,000 [Waterloo Textiles Ltd., Govt. News Release, Aug. 17, 2011]. $55,000 Fine Imposed in Elevator Incident Two crews were working in adjacent elevator shafts with the upper crew taking apart a temporary platform in one shaft while the lower crew cleaned the bottom of the other shaft. A member of the upper crew dropped part of a support post and it struck a worker from the lower crew, injuring his arm. The employer pleaded guilty to failing to ensure that materials were moved in a manner that didn’t endanger a worker. The court fined it $55,000 [Kone Inc., Govt. News Release, July 27, 2011]. Pipe Contractor Fined $50,000 after Gas Leak Causes Fire Workers for a pipeline contractor were installing a new natural gas line into a distribution facility. Other workers in the facility heard a gas leak and evacuated the project. The gas ignited, resulting in a fire. An MOL investigation found that the exposed pipe was pressurized with natural gas while workers were present but not all workers were given this information. The contractor pleaded guilty and was fined $50,000 [Robert B. Somerville Co. Ltd., Govt. News Release, July 25, 2011]. Workers Injured in Collapse of Steel Beams While erecting a steel structure, two workers were standing on beams when the beams collapsed. They fell about five meters to the ground and sustained minor injuries. The company pleaded guilty to failing to ensure that the beams were adequately braced to prevent any movement that would affect their stability or cause collapse. The court fined it $55,000 [Spencer Steel Ltd., Govt. News Release, July 22, 2011]. For more safety compliance advice, visit us on the web at www.OHSInsider.com 13 NEWFOUNDLAND LAWS & ANNOUNCEMENTS CASES cont'd Aug. 22: WHSCC Releases Statement on Handling Personal Information To meet the requirements of the new Personal Health Information Act, the WHSCC released a privacy statement to describe the way it handles personal health information and a privacy notice to explain why personal information, including health information, is collected, used or disclosed. Supervisor & Auto Repair Shop Face OHS Charges for Worker’s Injuries The government charged an auto repair shop and supervisor with three OHS violations after a worker was pinned under a vehicle that was being repaired. He suffered serious injuries to his back and ribs. The company is accused of failing to maintain an OHS program; provide proper instruction, training and supervision; and ensure that safe work procedures were followed. The supervisor was charged with failing to provide proper instructions about the precautions necessary to protect workers [E-R-L Enterprises Ltd., Govt. News Release, Aug. 2, 2011]. CASES Mine Penalized $80,000 for Worker’s Broken Foot & Ankle An attachment tore away from a dryer, causing the equipment and hoist to fall. As a result, a worker suffered broken bones in his ankle and foot. The employer pleaded guilty to failing to ensure that the hoist was operated appropriately and to provide the information, instruction, training and supervision necessary to ensure workers’ health and safety. The court fined it $60,000, ordered it to pay $20,000 to Threads of Life and required a company official to present the details of a safety case currently being developed by the company to an OHS conference [Wabush Mines, Govt. News Release, July 26, 2011]. Asbestos Violations Cost Construction Company $13,000 After an investigation into the demolition of a former hospital, a construction company pleaded guilty to failing to take all necessary measures to minimize workers’ exposure to airborne asbestos and ensure that appropriate measures were taken to prevent pollution of the general environment by asbestos dust. The court fined the company $10,000 and ordered it to pay $3,000 to the Department of Government Services for public OHS education [Kelloway Construction Ltd., Govt. News Release, July 28, 2011]. Association Between Worker’s Disease and Chemicals Made It Work-Related A fuel truck driver claimed that he’d developed non-Hodgkin’s lymphoma from exposure to chemicals at work, including gasoline, solvents, fuel oil and benzene. His workers’ comp claim was denied due to lack of scientific evidence linking his condition to chemical exposure. But the review commissioner reversed this decision, ruling that there were studies indicating “statistically significant associations” between nonHodgkin’s lymphoma and solvent exposure. The court upheld the commissioner’s decision as reasonable. It’s “inappropriate to reject a claim solely because the science has not progressed to the point where one can say, to a scientific certainty,” that the injury was caused by employment-related exposure, explained the court [Iron Ore Company of Canada v. Newfoundland & Labrador (Workplace Health, Safety and Compensation Review Division), [2011] NLTD 103 (CanLII), July 21, 2011]. LAWS & ANNOUNCEMENTS Aug. 9: Bus Driver Not Fired for Writing While Driving Transit officials said the bus driver who was caught filling out paperwork while driving a bus was disciplined but won’t be fired. A passenger caught the distracted bus driver on video as he drove and filled out forms. At one point, he used his knees to help steer the bus. The video, which was posted on YouTube, received nearly 130,000 views. July 18: City Charged with Safety Violations for Chlorine Release A maintenance worker at a recreational facility was filling containers of chlorine and hydrochloric acid in the pool’s filter room. He got confused about the contents of each container and inadvertently poured the acid into the chlorine tank, discharging chlorine gas and triggering the facility’s evacuation. Prosecutors charged the City of Summerside with four OHS violations, including failing to issue adequate instruction, training and supervision to workers to ensure their safety and ensure a worker was wearing protective respiratory equipment. QUÉBEC PRINCE EDWARD ISLAND LAWS & ANNOUNCEMENTS Aug. 11: Guides on Workplace Violence & Working Alone Revised The WCB has revised its Guide to Working Alone Regulations and Guide to the Prevention of Workplace Violence. These guides provide up-to-date information on what the law requires, including risk assessments, resources for developing policies and procedures, and practical tips on staying safe on the job. July 19: Stage Company Involved in Two Collapses The Montréal-based company that owned the stage that collapsed at the Ottawa Bluesfest was the focus of a 2009 safety probe after another one of its stages came crashing down in bad weather. No one was injured. After a two-month investigation, the company was cleared of any wrongdoing by the province’s workplace safety commission, which said the collapse was the result of faulty manufacturing and the company had “taken all necessary precautions.” July 20: No Charges for Worker’s Burns at French Fry Plant The WCB won’t lay charges against Cavendish Farms after a worker suffered serious burns. He was standing by a valve on a fryer when hot oil shot out, burning his neck, back, shoulders and forearms. The Board concluded that the company had taken every reasonable precaution before the incident. In addition, it had gone above and beyond what was recommended to ensure that similar incidents didn’t happen again, including relocating the valve to a remote location and installing shields. LAWS & ANNOUNCEMENTS NU Aug. 12: WCB Policies Revised The following WCB policies have been amended (Details about the revisions are included in the History section at the end of each policy.): • Benefit of Doubt (POL-62) • Emergency Callout of Workers (POL-127) • Employer Registration (POL-19 ) • Interjurisdictional Trucking - Alternative Assessment (POL-142). July 30: Public Says Bus Drivers Are Using Cell Phones According to the Montréal Gazette, the Société de Transport de Montréal received 189 complaints about cell phone use by bus drivers from members of the public during an eight-month period. But the STM has refused to say how many routes or drivers were involved in the incidents complained about, never mind which routes or drivers. Nor would it say how many drivers have been disciplined over the past year for driving while using a hand-held device. Aug. 21: 12 Die in Plane Crash A charter jetliner carrying 15 people crashed into a hill while approaching the runway in Resolute Bay. Twelve people were confirmed dead; two adults and a young child survived and are receiving medical treatment. By coincidence, the crash occurred as an annual massive military exercise was being conducted with the focus on responding to a mock air disaster as well as a marine accident. The participating helicopters and medical technicians were quickly deployed to respond to the real thing. October 2011 © Bongarde 14 First aid provider requirements continued FROM PAGE 1 your company complies with the requirements for so-called “first aid providers.” MODEL FIRST AID RECORD: Go to the Insider's online partner website, www.OHSInsider.com, to download a model first aid record that you can adapt and give to first aid providers to record the treatment they give workers. Defining Our Terms The OHS regulations use the terms first aider, first aid provider and first aid attendant to describe someone qualified and trained to provide first aid in the workplace. To keep things simple, we’ll use the term “first aid provider” to refer to such workers. In addition, this article covers general first aid requirements under OHS laws, not those pertaining to specific industries, such as forestry and construction, or hazards, such as confined spaces or working alone. WHAT THE LAW SAYS All jurisdictions address first aid in their general OHS regulations, a separate first aid regulation or, in ON and QC, a regulation under the workers’ comp law. In addition to covering first aid kits and rooms, these regulations typically cover: • When a workplace needs one or more first aid providers; • How many first aid providers are required and with what level of training; • Their duties; and • The records they must make of the first aid they provide. We’ll discuss each of these areas below. HOW TO COMPLY In general, all workplaces must have first aid providers whose duties typically include providing first aid to injured and ill workers, accompanying these workers when they’re transported from the workplace for medical attention and supervising the first aid room, if the workplace has one. Although first aid provider requirements vary slightly by jurisdiction, taking the following steps will ensure compliance regardless of where in Canada your company is located: Step #1: Determine Number & Type of First Aid Providers Required Pretty much every workplace must have at least one first aid provider who has had basic first aid training. The exact number and type of first aid providers needed is largely based on: • The number of workers in the workplace; • The nature and extent of the hazards in the workplace; and • How long it transportation. may take to obtain emergency For example, workplaces with large workforces that perform high risk activities likely need multiple first aid providers who have high levels of first aid training. And even a small workplace with medium to low risk activities may need a highly trained first aid provider if it’s in a “remote location,” that is, one that would take emergency medical responders more than a few hours to reach. Many OHS laws include detailed charts on the number of first aid providers, first aid kits and first aid rooms various kinds of workplaces need and the level of training the first aid providers require. To determine in which category your workplace falls, conduct an assessment of the workplace that considers the above factors as well as the types of injuries likely to occur and then consult your jurisdiction’s OHS law. Step #2: Ensure First Aid Providers Are Qualified Once you’ve determined how many first aid providers your workplace needs, ensure that you have enough workers who are qualified as first aid providers. There are three types of qualifications workers must meet to be first aid providers: Personal. Some jurisdictions limit which types of people can be first aid providers. For example, in BC, a “first aid attendant” must be at least 16 years old and physically and mentally capable of safely and effectively giving first aid, for example, strong enough to provide CPR effectively and doesn’t faint at the sight of blood. For more safety compliance advice, visit us on the web at www.OHSInsider.com 15 Job position. It’s important that first aid providers be available as soon as possible to provide first aid when needed. So their “regular” job can’t interfere with being a first aid provider and they must be easy to contact. For example, in New Brunswick, employers must ensure that a worker who’s designated a first aid provider doesn’t perform work that’s likely to affect his ability to administer first aid; in BC, employers can’t assign a first aid attendant jobs that will interfere with his ability to get and respond to requests for first aid. So a worker who’s frequently off-site wouldn’t make a good first aid provider. Training. Qualified first aid providers need two kinds of training: • First aid training. Workers must get first aid training from accredited and approved first aid training providers. In some cases, the laws even spell out exactly what topics that training must cover. There are several kinds of first aid training, from basic or standard training to emergency training. The type of training your workers need will depend on the assessment you did of the workplace and its hazards and the requirements of your jurisdiction’s OHS law. When workers pass their training, they’ll be issued first aid certificates that indicate the type of training they’ve successfully completed, such as “Level 2” or “Emergency First Aider.” • Training on workplace first aid policy. You’ll also need to train designated first aid providers on the company’s first aid policy and procedures and its emergency response plan and their role(s) in such plans. Step #3 Identify First Aid Providers for Co-Workers Workers need to know who to go to if they or a co-worker get injured or sick. So the OHS laws generally require employers to post in the workplace the names of first aid providers, their locations and their qualifications. Step #4: Provide Necessary First Aid Equipment Employers must furnish the supplies first aid providers need to treat workers in the form of first aid kits and, in some cases, first aid rooms. The regulations often specify the contents of these kits and require them to be easily accessible in the workplace. Insider Says: For more information on first aid rooms, see “First Aid: What Are an Employer’s Legal Obligations?, Jan. 2008, p. 1, which includes a checklist of the items a first aid room should contain. Have you seen the new Video Learning Center on OHSInsider.com? Step #5: Make Sure First Aid Providers Keep First Aid Records Employers are required to keep records of first aid treatment (sometimes called first aid registers). In most cases, the first aid provider will be the one completing these records, which generally include: • The treated worker’s name; • The name of the first aid provider who treated him; • The injury or illness the worker suffered; • When and how the injury or illness occurred; • When the worker reported the injury or illness; • The type of first aid treatment provided; and • Whether the treatment. worker needed additional medical The first aid provider should complete the record as soon as possible after finishing treatment of the injured or ill worker and he should sign it. Employers may be required to retain these records for two years (Fed), three years (AB, BC) or five years (MB, NB, NL, NS, SK). (The chart on pages 16 and 17 spells out the first aid record requirements in each jurisdiction.) MODEL FIRST AID RECORD: Go to the Insider's online partner website, www.OHSInsider.com, to download a model first aid record that you can adapt and give to first aid providers to record the treatment they give workers. BOTTOM LINE Having an adequate number of qualified first aid providers can literally mean the difference between life and death for injured workers. So it’s critical that you ensure that your company complies with the requirements for first aid providers to safeguard workers’ health and safety and avoid liability for OHS violations. October 2011 © Bongarde 16 KNOW THE LAWS OF YOUR PROVINCE FIRST AID RECORD REQUIREMENTS Here are the requirements for first aid records in the OHS laws in each jurisdiction: RELEVANT LAWS FED 1. A first aid attendant who renders first aid must complete and sign a first aid record providing: a. the date and time of the reporting of the injury or illness; b. the full name of the injured or ill worker; c. date, time and location of the occurrence of the injury or illness; d. a brief description of the injury or illness; e. a brief description of first aid rendered; 1. Employers must record every acute illness or injury that occurs at the work site in a record kept for that purpose as soon as practicable after the injury or illness is reported. AB BC 2. The above record must include the following: a. the worker’s name; b. name and qualifications of the person giving first aid; c. a description of the illness or injury; d. the first aid given to the worker; e. date and time of the illness or injury; f. date and time the illness or injury was reported; g. where at the work site the worker got ill or injured; and 1. Employers must maintain at the workplace, in a form acceptable to the Board, a record of all injuries and exposures to contaminants covered by the OHS regulations that are reported or treated. f. a brief description of the arrangements made for the treatment or transportation of the injured or ill worker; and g. the names of any witnesses. 2. The employer must keep the first aid record for two years from the date of the entry. OHS Regs., Part XVI 3. Anyone with access to first aid records must keep the information in them confidential subject to injury reporting obligations [Sec. 16.13]. h. the work-related cause of the illness or injury, if any. 3. Anyone with access to first aid records must keep the information in them confidential subject to injury reporting obligations [Sec. 16.13]. 4. The person with custody of these records must ensure that no one but the worker has access to the worker’s record unless: a. the record doesn’t identify the worker; b. the worker has given written permission for disclosure to the person; or c. access, use and disclosure is required by law [Sec. 184]. 3. First aid records must be kept confidential and not disclosed except as permitted by the OHS regulation or another law [Sec. 3.19]. OHS Code 2009, Part 11 OHS Reg. 2. Employers must keep these records for at least three years. MB NB NL Employers must ensure that any illness or injury suffered by a worker in the course of his duties is promptly recorded and retain the record for five years from the date it’s made [Sec. 5.7]. 1. A first aid provider must prepare a written record that sets out: a. the name of the injured or ill worker; b. a description of the injury or illness; c. the treatment and care provided; d. a description of the incident and date of occurrence; e. the name of the person providing emergency care; and f. the date the record was made. 1. Employers must ensure that every first aid kit or first aid room has an approved register in which is recorded the particulars of first aid treatment given to or sought by a worker while at work and of any case referred for medical attention, including: a. the full name, age and occupation of the worker; b. nature of the injury or illness; c. a short description of the cause of the injury or illness; d. nature of the work the worker was engaged in when he was injured or became ill, including date and time; e. treatment given, including date and time; 2. The above record must be made as soon as practicable after the injured or ill worker has received care. 3. Employers must retain these records for five years after the date on which they’re made [Sec. 10]. f. disposition of the case, i.e., whether the worker returned to work, was sent home or to a doctor or hospital and the means of transportation, if applicable; g. signature of the person making the entry; and h. at a later time, if necessary, total time lost, time on restricted work activity and whether a workers’ comp claim was filed. 2. Employers must retain first aid registers for at least five years from the date of the last entry [Sec. 10]. For more safety compliance advice, visit us on the web at www.OHSInsider.com Workplace Safety and Health Reg., Part 5 First Aid Reg. OHS First Aid Regs. 17 Continued from previous page... RELEVANT LAWS NT/NU 1. When a worker is injured, employers must complete an accident report stating: a. the worker’s name; b. date and time of the injury; c. date and time the worker reported for treatment; d. names of any witnesses; e. a brief description of the treatment rendered; and f. the signature of the employer and the first aider or first aid attendant who treated the worker. 2. Employers must maintain a permanent record of injuries sustained by workers that contains the above information [Sec. 65]. NS When a first aid attendant administers first aid to an injured person at a worksite, the employer of the injured person must maintain a record for five years after the date of the injury that includes: 1. the injured person’s name; 2. date and time of the injury; 3. location and nature of the injuries; 4. time when first aid was administered; 5. the first aid treatment provided; 6. name of the first aid attendant; and 7. name of the person to whom the injury was reported [Sec. 8]. ON Employers must keep a record of all accidents as described by an injured worker, including: 1. the date and time of occurrence; 2. the names of any witnesses; 3. nature and exact location of the worker’s injuries; and 4. date, time and nature of the first aid treatment given [Sec. 5]. PE Employers must ensure that all injuries are recorded in the first aid record book [Sec. 9.10]. QC SK YT 1. A first aider giving first aid to a worker must complete a report containing: a. the first aider’s name; b. the worker’s name; c. time and description of the injury or sickness; and d. type of first aid given. 2. The first aider must give the report to the employer of the establishment or to the principal contractor on a construction site, who must keep it in a register reserved for that purpose [Sec. 15]. 1. Employers or contractors must ensure that each first aid station has a first aid register in which is recorded: a. each first aid treatment administered to a worker while at work; and b. each case referred for medical attention. 2. Employers or contractors must retain first aid registers no longer in use for at least five years from the date on which they ceased to be used [Sec. 57]. Employers must maintain at the work site a written record of all injuries, including: 1. the injured worker’s name; 2. date and time of the injury; 3. date and time of reporting; 4. a brief description of how the injury occurred; 5. names of any witnesses; 6. a brief description of the nature of the injury and the location on the worker’s body; 7. a description of the treatment rendered; 8. injured worker’s signature, when possible; and 9. first aid attendant’s signature [Sec. 8]. FREE WEBINARS One of the many benefits of membership to www.OHSInsider.com is free access to webinars. And if you can’t catch the webinar live, you can still watch the presentation online. Some of our recent webinars address: • Minimizing OHS Risk When Using Contractors • Managing the Overweight Workforce • How to Prevent Social Media Harassment in the Workplace • Workplace Drug & Alcohol Testing • Psychological Safety & the Law in the Canadian Workplace. General Safety Regs., Part III OHS First Aid Regs. First Aid Requirements Reg. (under the Workplace Safety & Insurance Act) OHS Regs., Part 9 First Aid Minimum Standards Reg. (under the Workers’ Compensation Act) OHS Regs., Part 9 Minimum First Aid Regs. SafetyTalks.com A BONGARDE SITE Need a quick talk? Visit www.SafetyTalks.com. BRAN NEW D ! Use discount code SCI2010 to save 10%. October 2011 © Bongarde 18 MAKING THE BUSINESS CASE FOR EHS I Why Your OHS and Wellness Programs Should Work Together n most workplaces, the OHS program operates independently of the wellness program—if the company even has a wellness program. Typically, a safety coordinator runs the OHS program while the HR director oversees the wellness program and there’s little, if any, coordination between the two. But the authors of an article recently published in the Journal of Occupational and Environmental Medicine (JOEM) make the case that there’s a symbiotic relationship between these programs and that running them together is more effective and leads to greater improvement in workers’ overall health and safety. Here’s a look at their argument. The Problem The authors of the JOEM article note that OHS and wellness programs cover a wide range of functions and goals, including: • Assessing worker health status; • Addressing personal health risks; • Recognizing and treating injury or illness early; • Implementing job safety initiatives; • Developing a health and safety culture; • Preventing disabilities; • Assisting workers in returning to work after illnesses and injuries; and • Implementing behavioural health and environmental safety initiatives. As diverse as these activities are, they share common goals: promoting workers’ overall health and preventing workplace injuries and illnesses. But the organizational attitudes toward each type of program differ. OHS programs are viewed as a “necessary evil” required for compliance with OHS laws; wellness programs are seen as an unnecessary “bonus” for workers. Similarly, workplace injuries are taken more seriously than workers’ overall health issues. For example, the authors note that when a worker gets hurt on the job, work often shuts down so a root-cause analysis can be done to identify and address the cause of the injury. In contrast, if a worker has a heart attack on the job, work generally continues uninterrupted and it’s unlikely anyone would investigate the cause of the incident. Thus, wellness programs don’t get the respect and commitment from management or workers that they need to be effective. The authors also point out that disturbing health-related trends, such as an increase in chronic conditions (diabetes, heart disease), and an aging workforce are increasing health costs for employers. Meanwhile, the cost of workplace injuries and illnesses on companies also continues to increase. Thus, there’s clearly a need to improve the effectiveness of both OHS and wellness programs. A Proposed Solution The authors propose a new approach to address this disconnect between workplace safety and wellness: “workplace health protection and promotion.” They argue that this approach will enhance the overall well-being of the workforce by more closely integrating health promotion (that is, wellness) and health protection (that is, workplace safety) activities along a continuum. In this model, health promotion initiatives contribute dynamically to improved personal safety in addition to enhancing personal health; occupational safety initiatives contribute dynamically to improved personal health in addition to enhancing personal safety. There’s evidence of ties between wellness and workplace safety that suggests an integrated approach is more effective at reducing injuries and illnesses and improving workers’ overall health. For example, studies have shown that factors such as good physical condition, absence of chronic illness and good mental health are associated with low occupational injury rates. Conversely, it has been shown that workers with certain adverse health risk factors such as obesity, sleep deprivation, poorly controlled diabetes, smoking and drug or alcohol abuse are more likely to sustain workplace injuries than those without such risks. Researchers have also found a statistically increased risk for accidental death in obese workers and determined that hearing loss and poor eyesight are associated with injuries on the job. The authors acknowledge that their workplace health protection and promotion approach isn’t novel. In fact, the integration of workplace safety and wellness programs is being touted by various workplace safety organizations such as the US National Safety Council, NIOSH, the American College of Occupational and Environmental Medicine, the International Labour Organization, the UK’s National Health Service and the EU’s Safety and Health at Work Strategy. For more safety compliance advice, visit us on the web at www.OHSInsider.com 19 The new integrated models these groups are promoting include the following common elements: • Building a “whole life” approach to health and safety, which combines both on-the-job and off-the-job aspects in a unified vision that leads to a true “culture of health”; • Stressing the importance and connection of overall health and wellness to safety outcomes; and • Recognizing the evolution in the nature of workplace hazards and including this awareness in the development of health strategies. BOTTOM LINE The basic theory underlying the JOEM article is that a healthier workforce can be a safer workforce and vice versa. Thus, the idea is to morph your workplace’s safety culture into a more inclusive and broader “culture of health.” You can achieve better integration of workplace safety and wellness in your workplace and thus better protect workers by: • Implementing programs that recognize the interactions of safety, environment and health; • Creating a climate in which workers believe that the company cares about their health and safety; • Building a culture in which a health and safety mindset becomes a “24/7” way of thinking; and • Promoting an off-the-job health and safety focus that becomes as important as—and overlaps with—the onthe-job health and safety focus. Insider Says: For more information and tips on how to integrate workplace safety and wellness programs, see a guide for employers released by California, The Whole Worker: Guidelines for Integrating Occupational Health and Safety with Workplace Wellness Programs. And on OHSInsider.com, you can download an OHS and Wellness Program Integration Checklist to help guide the integration process in your company. INSIDER SOURCE Workplace Health Protection and Promotion: A New Pathway for a Healthier—and Safer—Workplace, Pamela A. Hymel et al, Journal of Occupational and Environmental Medicine, June 2011 Why Focus on General Health Issues in the Workplace? There are many reasons why companies should focus on general health issues in the workplace, including: • Workplace programs can reach segments of the population who may not have access to health information in other settings; • Workplaces concentrate groups of people together who share a common purpose and culture; • The work environment can be used to advocate for and provide access to healthy lifestyles; • Communicating with workers is straightforward due to pre-established and well-organized communication channels; • Workplaces provide social and organizational supports; • Organizational hierarchies enable the introduction of procedures, practices and norms as to health; • The workplace’s physical environment can be used to affect health behaviours, such as healthy food options in the cafeteria, ergonomic office design, encouraging the use of stairways, etc.; and • Financial and other incentives can be used in the workplace to gain participation in programs. October 2011 © Bongarde 20 DOS & DON'TS Expressly Ban Weapons from the Workplace Include language in your company’s workplace violence and harassment policy that expressly bars workers—and visitors—from bringing weapons to work and from possessing and using weapons in your workplace. The policy should also include a broad definition of “weapon” that covers items such as knives, hand guns, stun guns, rifles, box cutters and police-type batons. And make sure to post signs at entrances to the workplace as well as inside stating that weapons are banned. Banning weapons won’t eliminate the risk of workplace violence, of course. Workers who intend to commit premeditated acts of violence are unlikely to be deterred by a rule saying they can’t bring weapons to the workplace. But a weapons ban can help minimize the harm posed by spontaneous attacks and prevent angry confrontations from escalating into deadly encounters. Workers who lose their temper at work don’t need a weapon to commit an act of violence. For example, an irate worker could still punch his supervisor or even use an everyday object, such as a wrench, stapler or even a chair, as a make-shift weapon. However, such incidents would be much worse if the attacker had brought a "real" weapon to work. Workers’ Concerns about Don’t Ignore Co-Worker’s Behaviour If a worker comes to you or a supervisor with concerns about a co-worker’s behaviour, don’t just ignore or downplay these concerns. Try to determine if they’re valid and if there’s an issue with the co-worker that needs to be addressed. Ignoring concerns once they’ve been brought to your attention lets the problem get worse and increases the likelihood that an incident will occur—and that you may be held responsible for it. That’s what happened at an Ontario paper mill. A worker inadvertently hit a coworker in the head as he was flipping a heavy sheet of paper being spun from a reel. The two men got into a screaming match, during which the co-worker chestbumped the worker and challenged him to settle things in the parking lot. The company fired the co-worker. But an arbitrator ruled that an 11 months’ unpaid suspension was enough punishment. The co-worker had been trained on the company’s violence policy, which his conduct violated. But the other worker’s conduct incited the co-worker and exacerbated the incident. The arbitrator was also critical of the paper mill, particularly the co-worker’s supervisor. The co-worker had raised concerns about the worker’s behaviour and “odd demeanour” to his immediate supervisor, describing the worker as passiveaggressive, really distant and tense. But the supervisor did nothing to address these concerns. As a result, frustration built up between the two workers, resulting in the physical altercation. Bottom line: The incident could have been avoided if the supervisor had responded appropriately when alerted to the worker’s unusual behaviour, concluded the arbitrator. And because the company shared some of the blame for the incident and considering all the circumstances, it could only suspend the co-worker for conduct that might have otherwise warranted termination [Georgia Pacific Canada Inc. v. Communications, Energy and Paperworkers Union of Canada, Local 192, [2011] CanLII 18182 (ON L.A.), March 28, 2011]. Lock-in the best value in compliance advice: renew or subscribe today. 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