1. pets
2. dogs

from the editors of
Insider
www.OHSInsider.com
MACHINERY & EQUIPMENT: How to
Volume 8 - Issue 8
AUGUST 2012
Choose an Appropriate Guard
FEATURES
Machinery & Equipment
1
Make sure you choose an appropriate &
effective machine guard.
Know the Laws of Your Province (p. 5)
Inspections
1
5 tips for more effective inspections by the
employer and/or JHSC.
Results of Safety Inspection Poll (p. 15)
Dylan Short
An interview with the Chair of the
OHS Summit 2012.
16
REGULARS
Test Your OHS I.Q.
7
Brief Senior Management
8
OHS Month in Review
9
Case of the Month
9
Does Workers’ Comp Cover an Injury Suffered
by a Telecommuter at Home?
Companies Can Be Liable for Accidents
Caused by Workers’ Distracted Driving
Guilty Pleas in ON Christmas Eve Tragedy
Managing Your OHS Program 18
6 Strategies to Improve EHS Compliance
Traps to Avoid
Disciplining Workers for Exercising
Safety Rights
20
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
I
f machinery and equipment in your workplace has pinchpoints, energized parts
and other hazards that could endanger workers using or working near that
machinery, the OHS laws
require you to install guards
EXECUTIVE SUMMARY
to prevent workers from these
The Law: The OHS laws require employers to install guards on
machinery and equipment to protect workers from hazards, such
hazards. But keep in mind
as pinchpoints and cutting devices.
that the OHS laws don’t just
The Problem: To comply with the law, guards must be adequate
and effectively protect workers.
require guards—they require
To Be Appropriate, a Guard Must:
“adequate” or “effective”
1. Actually protect workers from the hazard;
guards. So it’s crucial that you
2. Comply with any applicable standards, such as those from
the CSA;
select the appropriate guard
3. Not create new hazards;
for each piece of equipment.
4. Not interfere with workers’ use of the machinery or
equipment;
Choosing the wrong guard
5. Be difficult, if not impossible, to remove; and
can not only fail to protect
6. Allow for routine maintenance on the machinery without
workers from the machine’s
removal of the guard.
Tool:
Machine Guarding Checklist
hazards but also create
continued inside ON PAGE 2
INSPECTIONS: 5 Tips for More Effective
Safety Inspections
R
egular workplace safety inspections should be a key component of
every company’s OHS program. But inspections can be challenging. For
example, in a recent OHS Insider poll, readers identified various inspection
problems, ranging from getting cooperation from workers and supervisors to
following up on the results
(see the box on page 15 for
EXECUTIVE SUMMARY
a breakdown of the results).
The Law: To comply with the OHS laws and prove due diligence,
employers should conduct regular safety inspections.
And if your inspection
The Problem: Many employers either don’t conduct inspections at
program consists only of
all, leaving them to the JHSC, or don’t do them effectively.
JHSC inspections, you’re
5 Tips for More Effective Inspections:
1. Have supervisors conduct regular inspections of their areas of
missing an opportunity. We
responsibility;
recently spoke to Yvonne
2. Use customized inspection forms for JHSC and employer
inspections;
O’Reilly, CRSP, an OHS
3. Give advanced notice of JHSC inspections to increase supervisor
consultant and member of
cooperation;
4. Have “fresh eyes” conduct periodic inspections; and
the Insider Board of Advisors,
5. Instill in workers the idea that we’re all inspectors.
about workplace safety
continued inside ON PAGE 14
2
SAFETY COMPLIANCE
INSIDER
additional hazards. We’ll tell you how to ensure that you choose an appropriate
guard that complies with the OHS laws. There’s also a chart that tells you the
design requirements for machine guards in each part of Canada.
Board of Advisors
Andrew Cooper, CHSC
University of Alberta
Edmonton, AB
Go to the Insider’s online partner site, www.OHSInsider.com, to download a Machine
Guarding Checklist you can adapt and use to ensure that your machine guards meet
all of the requirements in the OHS laws, including the design requirements.
Cheryl A. Edwards
Heenan Blaikie LLP
Toronto, ON
Norman A. Keith, CRSP
Gowling Lafleur Henderson LLP
Toronto, ON
Defining Our Terms
The OHS laws use the terms “guard,” “safeguard” and “protector” to describe
a device that physically protects a worker from machine hazards. We’ll use
the term “guard” throughout this article to refer to such devices. In addition,
this article addresses general machine guarding requirements only. It doesn’t
cover specialized guarding requirements for certain types of equipment, such as
abrasive wheels, grinders and saws.
Ken Krohman
MacKenzie Fujisawa
Vancouver, BC
Fred C. Leafloor, CRSP, CHSC
Safety First Industrial Safety Services
Dartmouth, NS
David G. Myrol
McLennan Ross LLP
Edmonton, AB
CHOOSING AN APPROPRIATE GUARD
Yvonne O’Reilly, CRSP
O’Reilly Health & Safety Consulting
Toronto, ON
Every jurisdiction’s OHS regulations contain machine guarding requirements. In
general, they all require the use of engineering controls—including guards—
that form a physical barrier to keep workers who work with or near the machine
from coming into contact with points of danger. And the OHS regulations
typically include design requirements for those guards. (See the chart on page
5 for the design requirements for machine guards in each jurisdiction.)
Wayne Pardy, CRSP
Q5 Systems
St. John’s, NL
Barbara Semeniuk, BSc, CRSP
Purcell Enterprizes
Edmonton, AB
If you’re at the point of choosing an appropriate guard for a piece of
machinery, then you should’ve already done a risk assessment of the machinery
in question and determined that a guard was required. For more information
on that process, see “Machine Guarding: What the OHS Laws Require You to
Do,” April 2010, p. 1.
Your Plain Language Guide to C-45, OHS & Due Diligence
www.OHSInsider.com
EDITOR:
ROBIN L. BARTON
Managing editor:
GLENN S. DEMBY, ESQ.
To ensure that your company complies with the design requirements when
choosing a machine guard, you should consider the following questions:
LAYOUT:
TRACY BRIGHTMAN
Does the Guard Protect Workers from the Machine Hazard?
PRESIDENT AND CEO:
ROB RANSOM
Safety Compliance Insider is published by Bongarde Holdings Inc. and is
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MODEL TOOL:
The OHS laws require machine guards to be adequate, effective and capable of
performing their intended function. In other words, a guard must actually protect
workers from the hazard from which it’s intended to shield them. Otherwise,
workers could get hurt—and your company could get hit with an OHS violation.
Example: After a printing press jammed, workers shut it down and engaged a safe
button to prevent it from restarting as they looked for the jam. A summer student
found a jam in the rear of the press and started to remove it, out of sight of the
other workers who’d found another jam in the front of the press. When the workers
restarted the press, the young worker’s hand was drawn between two rollers and
injured. The Ontario MOL found that the area of the press where the incident
For more safety compliance advice, visit us on the web at www.OHSInsider.com
3
occurred was protected by a guard but it was inadequate to
prevent the worker’s hand from being drawn into the rollers.
The company pleaded guilty to a guarding violation and was
fined $60,000 [American Color Graphics Inc., Govt. News
Release, June 11, 2012].
So make sure the guard you select protects workers from
coming into contact with the following types of machine
hazards:
•
Moving parts, such as belts, rollers and chains;
•
Electrically charged parts;
•
Pinchpoints;
•
Points of machinery at which material is cut, shaped,
bored or formed;
•
Surfaces with temperatures that may cause skin to
freeze, burn or blister;
•
Open flames;
•
Energized electrical cables or components;
•
Power transmission parts;
•
Debris, material or objects ejected from the machinery;
•
Items falling into the machinery;
•
Material being fed into or removed from process
machinery; or
•
Any other hazard posed by the machinery.
Does the Guard Comply with Applicable Standards?
Some OHS laws require machine guards to comply with
voluntary safety standards, such as those issued by the
Canadian Standards Association (CSA). For example, in
BC, MB, NL and YT, the application, design, construction,
installation, maintenance and/or use of guards must comply
with CSA Standard Z432, Safeguarding of Machinery. NT and
NU require guards to comply with the current CSA standard,
current ANSI standard or another standard accepted by the
territory’s Chief Safety Officer. (You can access CSA standards
that have been incorporated into the OHS laws, such as Z432,
for free at http://ohsviewaccess.csa.ca/.)
Even if your jurisdiction’s OHS laws don’t specifically require
guards to comply with the CSA standard, it’s a good idea
to comply with it anyway or at least consult it. A court may
considered the standard’s requirements to reflect best practices
and so expect you to comply with them to show due diligence.
Among other things, CSA Z432 contains general design
requirements, some of which mirror similar requirements
in the OHS laws. For example, it says that machine guards
should generally be designed and constructed with the goal
of preventing any part of the body from reaching a danger
point or area, taking into account the physical characteristics
of the workers involved and their abilities to reach through
openings and over or around barriers or guards. In addition,
guards should:
•
Be of robust construction;
•
Not create additional hazards;
•
Not be easy to by-pass or make non-operational;
•
Be located an adequate distance from the machine
hazard;
•
Cause minimal obstruction of the view of the machine’s
operation; and
•
Enable essential work, such as maintenance, to be carried
out without the guard having to be removed.
In addition, the standard includes detailed design
requirements for specific types of guards, such as barrier
guards, fixed guards, movable guards, interlocking safeguarding
devices, light curtains and safety mat systems.
Does the Guard Create New Hazards?
Remember—the purpose of a guard is to protect workers
from machine hazards. So the guard itself shouldn’t endanger
workers or create new hazards. For example, Québec’s OHS
regulation says that guards (which it calls “protectors” and
“protective devices”) shouldn’t:
•
Cause additional risks for workers; or
Train Workers on Machine Guards
It’s critical that you ensure that workers are properly
trained on machine guards. For example, Safety
Smart has a safety talk for workers on how guards
protect them and a leader sheet on how to conduct
that safety talk. (You’ll need to be a Safety Smart
member or sign up for a trial membership to access
these training tools.)
August 2012 © Bongarde
4
•
Be themselves a source of danger, such as due to
the presence of cutting edges, irregularities or burrs
[Sec. 187].
So ensure that the selected guard doesn’t create hazards
for workers, either due to the physical characteristics of the
guard itself or how it impacts use of the machine. For example,
a guard that protects a worker from a pinchpoint could also
force him to work in an awkward position, thus exposing him
to the risk of developing a musculoskeletal injury. In that case,
try to find an alternate guard.
Can Maintenance Be Done Without Removal of the Guard?
Some jurisdictions, including AB, BC, NL and YT, say that, when
practicable, guards should be designed so that workers can
lubricate the machinery or perform routine maintenance on it
without having to remove the guard. The idea is that once a
guard is in place, it’s best that it stays in place. If a worker has
to remove a guard every time he oils the equipment, there’s
always a chance he’ll forget to replace it when he’s done, thus
exposing himself and his co-workers to the risk of injury. So if
possible, choose a guard that permits repairs, lubrication and
other routine maintenance tasks to be done while the guard
is in place.
Does the Guard Interfere with Use of the Machine?
Ideally, an appropriate guard adequately protects workers
from machine hazards without interfering with the way they
do their work. That is, guards shouldn’t make it harder for
workers to use the machine. Workers should still be able to
do their work quickly and comfortably on a properly guarded
machine. So consider any ways in which a guard may impact
the work being done on the machine for which it’s intended.
There may be no way to safely guard a machine without
interfering to some extent with the machine’s use. But try to
select an appropriate guard that minimizes such interference.
Can the Guard Be Easily Removed?
Choosing a guard that doesn’t interfere with workers’ jobs
is especially important because workers may remove guards
they believe are slowing them down or making their work
hard to do. And the result of removing a guard can be an
injury or worse.
Example: At an Ontario glass manufacturer’s plant, a worker
was unloading glass sheets from a mechanized conveyor
when he stumbled and reached out to keep from falling. His
hand contacted a mechanized roller and was pulled around
it. As a result, he lost a finger and tendon. The MOL found
that the manufacturer had installed a guardrail in front of
the conveyor. But workers had removed it to make their job
easier. So at the time of the incident, there were no protective
devices to prevent workers from accessing the rollers. The
manufacturer pleaded guilty to a guarding violation and was
fined $50,000 [Southwest Glass Products Inc., Govt. News
Release, March 22, 2012].
So the OHS laws often specifically say that, when practicable,
guards should be designed so that they can’t be removed or
can only be removed with tools. Thus, when choosing a guard,
try to select one that’s difficult, if not impossible, to remove.
MODEL TOOL:
Go to the Insider’s online partner site, www.OHSInsider.com, to
download a Machine Guarding Checklist you can adapt and use
to ensure that your machine guards meet all of the requirements
in the OHS laws, including the design requirements.
BOTTOM LINE
Machine guarding violations are all too common. And
unfortunately, such violations can lead to serious injuries
and even fatalities. These violations and the resulting safety
incidents can almost always be prevented if machines have
the proper guards. As your company’s safety coordinator, you
should be familiar with the design requirements for machine
guards in your jurisdiction and ensure that your company
chooses guards that comply with these requirements.
YOU MAKE THE CALL
Were Worker’s Symptoms Caused by
Exposure to Gas?
What Happened
After a worker was exposed to fumes from “sweet gas,” he claimed
to experience nausea, vomiting and difficulty breathing. He filed a
workers’ comp claim, which was denied. So he appealed.
Question
Did the worker prove that exposure to the fumes caused his
symptoms?
Answer
No. To read the reasons for the Appeals Commission’s decision, see
the second case under ALBERTA on page 10.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
5
KNOW THE LAWS OF YOUR PROVINCE
Design requirements for machine guards under the OHS laws
LAW
FED
1. Machine guards must:
a. prevent a worker or any part of his body from coming into contact with exposed moving, rotating, electrically charged or hot
parts or material that constitutes a hazard;
b. prevent access by a worker to the area of exposure to the hazard during the operation of the machine; or
c. make the machine inoperative if a worker or any part of his clothing is in or near a part of the machine that’s likely to cause
injury [Sec. 13.13(1)].
2. To the extent that it’s reasonably practicable, a machine guard must not be removable [Sec. 13.13(2)].
Canada
OHS Regs.
OHS Code 2009 doesn’t include design requirements for safeguards. But the Explanation Guide to Part 22 does say that all safeguards
should do the following:
AB
1. Prevent a worker’s hands, arms and any other part of the body from making contact with dangerous moving parts;
2. Be secure—workers shouldn’t be able to easily remove or tamper with the safeguard;
3. Protect moving parts from the entry of falling objects, such as tools and materials;
4. Create no new hazards of their own, such as a shear point, jagged edge or unfinished surface that can cause a cut;
5. Create no interference—that is, they shouldn’t prevent workers from doing their work quickly and comfortably; and
6. Permit safe lubrication of the machine without having to remove the safeguards.
1. Unless provided for elsewhere in the Regulation, safeguards must:
BC
a. protect a worker from contact with hazardous power transmission parts;
b. ensure that a worker can’t access a hazardous point of operation; and
c. safely contain any material ejected by the work process that could be hazardous to a worker [Sec. 12.2].
OHS Reg.
2. The application, design, construction and use of safeguards, including an opening in a guard and the reach distance to a hazardous
part, must meet the requirements of CSA Standard Z432-94, Safeguarding of Machinery [Sec. 12.3]
3. A safeguard must be capable of effectively performing its intended function [Sec. 12.4].
4. A safeguard must be designed, where practicable, to allow lubrication and routine maintenance without its removal [Sec. 12.6].
MB
1. Safeguards must prevent a worker from coming into contact with the following hazards:
a. moving parts on the machine;
b. points of the machine at which material is cut, shaped or bored;
c. surfaces with temperatures that may cause skin to freeze, burn or blister;
d. energized components;
e. debris, material or objects thrown from a machine;
f. material being fed into or removed from the machine; and
g. any other hazard that may pose a risk to the safety or health of the worker [Sec. 16.5(1)].
Workplace
Health and
Safety Reg.
2. An employer must ensure that any required safeguard is designed, constructed, installed, used and maintained in accordance
with CSA Standard Z432-04, Safeguarding of Machinery [Sec. 16.5(2)].
NB
NL
1. Safeguards must prevent a worker from coming into contact with moving drive or idler belts, rollers, gears, driveshafts, keyways,
pulleys, sprockets, chains, ropes, spindles, drums, counterweights, flywheels, couplings, pinchpoints, cutting edges or other
moving parts on a machine that may be hazardous [Sec. 242(1)].
2. If it’s possible that the failure of a machine may result in an injury to a worker from a flying object, the employer must install a
safeguard strong enough to contain or deflect any flying object [Sec. 242(3)].
OHS Regs.
1. Except as otherwise provided, safeguards must:
a. protect a worker from contact with hazardous power transmission parts;
b. ensure that a worker can’t access a hazardous point of operation; and
c. safely contain material ejected by the work process that could be hazardous [Sec. 89].
2. The application, design, construction and use of safeguards, including an opening in a guard and the reach distance to a hazardous
part, must meet the requirements of CSA Standard Z432, Safeguarding of Machinery [Sec. 90(1)].
OHS Regs. 2012
3. A safeguard must be capable of effectively performing its intended function [Sec. 90(2)].
4. A guard must be designed, where practicable, to allow lubrication and routine maintenance without its removal [Sec. 91(2)]..
August 2012 © Bongarde
6
KNOW THE LAWS OF YOUR PROVINCE cont'd.
LAW
1. Guards must prevent workers from contacting moving parts and from entering a danger area during operation [Sec. 97].
2. A guard must be designed, constructed, installed and maintained so it’s capable of effectively performing the functions for which
it’s intended [Sec. 98(1)].
NT/NU
3. The application of guards and associated devices must be in accordance with the current standards of:
a. the Canadian Standards Association;
b. the American National Standards Institute; or
c. other standards accepted by the Chief Safety Officer [Sec. 98(2)].
General Safety
Regs.
NS
Safeguards must:
1. prevent a person from coming in contact with a moving part of a machine or tool that may present a hazard [Sec. 87(2)]; or
2. protect a person from being injured by a flying object from a machine [Sec. 87(6)].
Occupational
Safety General
Regs.
ON
1. Guards must prevent access to an exposed moving part of a machine, prime mover or transmission equipment that may endanger
the safety of any worker [Sec. 24].
2. Guards must prevent access to a pinch point created by an in-running nip hazard or any part of a machine, device or thing that
may endanger the safety of any worker [Sec. 25].
Industrial
Establishments
Reg.
PE
1. Safeguards must be effective [Sec. 30.9(1)].
2. Where it’s possible that a machine failure may result in an injury to a worker from flying objects, the employer must install
safeguards strong enough to contain or deflect the broken parts or particles of the machinery and flying particles of any product
[Sec. 30.9(3)].
OHS General
Regs.
QC
SK
YT
1. The regulation includes specific design requirements for:
a. interlocking protectors [Sec. 175];
b. interlocked protectors [Sec. 176]; and
c. two-hand controls [Sec. 180].
2. A protector or a protective device must not:
1. cause additional risks for workers; or
2. be in itself a source of danger, for instance due to the presence of cutting edges, irregularities or burrs [Sec. 187].
Regulation
respecting
Occupational
Health and Safety
1. Safeguards must be effective [Sec. 137(1)].
2. Where there’s a possibility of machine failure and injury to a worker resulting from the failure, an employer or contractor must
install safeguards that are strong enough to withstand the impact of debris from the machine failure and to contain any debris
resulting from the failure [Sec. 137(5)].
OHS Regs.
1. Safeguards must be proper and adequate and:
a. protect a worker from contact with hazardous power transmission parts;
b. ensure that a worker can’t access a hazardous point of operation;
c. safely contain any material ejected by the work process, which could be hazardous to a worker; and
d. meet all the requirements of CSA Standard Z432, Safeguarding of Machinery or other similar standard acceptable to the
director [Sec. 7.02].
2. A safeguard must:
a. be capable of performing its intended function; and
b. be designed, where practicable, to allow lubrication and routine maintenance without its removal [Sec. 7.03(a) and (b)].
OHS Regs.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
7
test
your
OHSI.Q.
Does Workers’ Comp Cover an Injury Suffered by a Telecommuter at Home?
SITUATION
A financial auditor works from her employer’s offices one day a week, spends another day conducting audits in taxpayers’ houses and the
rest of the week working from home with her employer’s permission. One morning, she goes to the office, does some work and leaves at
the end of the day with a briefcase full of documents she’ll need when she works from home the next day. When she gets home and parks
in her driveway, she goes to lift the briefcase out of her car’s trunk and seriously injures her back. At the time, the auditor was off-duty.
QUESTION
Is the auditor’s injury covered by workers’ compensation?
A. No, because she was injured at home.
B. No, because she wasn’t working or on-the-clock at the time.
C. Yes, because the action she was performing when she got hurt
was work-related.
D. Yes. Because she has permission to work from home, any injury
she suffers there is considered work-related.
ANSWER
C. Because the auditor was injured lifting a briefcase of workrelated documents that she’d need for work the next day, her
injury would be covered by workers’ comp.
EXPLANATIONS
The workers’ compensation laws provide benefits for workers
who suffer injuries that “arise out of” or “in the course of” their
employment. So if a worker is injured in the office, plant, factory
or other workplace controlled by the employer, that injury is usually
considered work-related and thus covered by workers’ comp. But what
if a worker suffers an injury while working from home? This scenario,
which is based on an actual case from Québec, addresses that issue.
In that case, the Commission des lésions professionnelles (CLP)
ruled that the financial auditor’s back injury was covered by workers’
comp. The employer argued that the incident wasn’t one that had
arisen out of or in the course of the auditor’s work because when
it happened, she’d left her “professional sphere” and entered her
“personal sphere.” The CLP rejected that argument, noting that the
actions she was carrying out when she got injured related directly to
the work she’d already done that day and to the work she would have
to do on the following day. Thus, in the CLP’s view, her back injury
was work-related.
Insider Says: For information on an employer’s legal obligations as to
a telecommuter’s safety, see “Safety Outside the Workplace: How Do
OHS Laws Apply to Workers Who Work from Home?” July 2009, p. 1.
The OHSInsider.com also has a telecommuter office safety checklist.
WHY WRONG ANSWERS ARE WRONG
A is wrong because, under these circumstances, the auditor’s home
is also her workplace. In most cases, injuries a worker suffers at home
won’t be covered by workers’ comp. But when a worker actually
works from home, the house is considered a workplace for workers’
comp and OHS purposes. In that situation, any injuries the worker
suffers at home could be considered work-related, depending on how
and when the injuries occurred.
B is wrong because the fact the auditor wasn’t actually working or
getting paid when she was hurt isn’t decisive. The activity she was
engaged in at the time was directly connected to her job and was
being performed for her employer’s benefit—not for personal reasons.
Thus, that activity—retrieving a briefcase of work documents—was
work-related.
D is wrong because workers’ comp won’t cover any injury the auditor
suffers at home. Yes, the auditor’s home is a workplace because she
works from there several days a week. However, for an injury to be
covered by workers’ comp, it must occur while the worker is actually
doing something work-related. So for example, if the auditor burnt
her hand while cooking dinner or tripped while folding laundry, these
injures wouldn’t be covered by workers’ comp simply because they
happened at her home.
SHOW YOUR LAWYER
Desrochers et Agence du revenu du Canada, [2011] QCCLP 7562, Nov.
21, 2011
August 2012 © Bongarde
8
BRIEF SENIOR MANAGEMENT
Companies Can Be Liable for Accidents Caused by Workers’ Distracted Driving
• An employee of Coca-Cola was driving a company vehicle and talking on her cell phone when she got into an accident, injuring a 37-year-old woman.
The injured woman sued Coca-Cola and a Texas jury awarded her more than $20 million (USD).
• A driver on a cell phone in a company car didn’t react when traffic slowed, rear-ending a Honda in a chain-reaction that killed a 32-year-old woman.
A jury awarded her family $21.6 million (USD).
• A federal magistrate ordered an Alabama trucking company to pay $18 million (USD) for an accident that happened when one of its drivers
reached for a cell phone.
• International Paper settled for $5.2 million (USD) after an employee on a cell phone caused a collision that cost a woman her arm.
THE PROBLEM
What do the above recent cases have in common? They involve
companies being held liable for distracted driving accidents
caused by their employees. Yes, all of the cases occurred in
the US. But distracted driving is just as big of a problem in
Canada. And it’s only a matter of time before Canadian courts
start seeing similar lawsuits. So it’s critical for the company
to take appropriate steps to address distracted driving by
workers. If the company doesn’t and a distracted worker
injures or kills someone while behind the wheel, it could face
serious financial consequences.
property damage or personal injury, his employer could be
held liable.
THE LESSON
Senior management is responsible for ensuring the company
protects workers from injury and that the company itself is
protected from liability for distracted driving by workers. Some
of the steps you should ensure the company takes include:
•
Implementing a distracted driving policy that bars
workers from using their cell phones or other electronic
devices while driving company vehicles or on the job.
However, an unclear policy that isn’t enforced will only
hurt the company. For example, in the Texas case, CocaCola’s lawyers argued that its company cell phone use
policy, which required the use of a hands-free device
when operating a motor vehicle, was consistent with—
and, in fact, exceeded—the requirements in Texas law.
But the plaintiff successfully argued that this policy was
“vague and ambiguous” and wasn’t enforced in any
way. So ensure that the company’s policy is clear and
comprehensive and that it’s consistent with any distracted
driving bans in the jurisdiction’s traffic laws;
•
Training workers on this policy as well as the dangers of
distracted driving. For example, in the Texas case, the
injured woman’s lawyers noted that although CocaCola had information on the dangers of using a cell
phone while driving, it didn’t share that information with
workers; and
•
Enforcing the policy. A distracted driving policy is only a
paper tiger if the company never disciplines workers who
violate it. So it’s critical that you ensure that the policy is
enforced and violators are appropriately disciplined.
THE EXPLANATION
When it comes to workplace safety, many companies focus on
the OHS laws and their requirements and that’s all. And the
OHS laws don’t identify the use of cell phones by workers as a
workplace hazard. (Exception: Sec. 503 of Alberta’s OHS Code
2009 restricts the use of cell phones near electric detonators
used in blasting operations.) So employers aren’t specifically
required to bar worker cell phone use and distracted driving as
part of their OHS programs.
But remember—every jurisdiction’s OHS law has a “general
duty” clause that requires employers to take steps to ensure
the health and safety of workers. A key component of this
general duty is eliminating and controlling foreseeable hazards.
So if distracted driving is a foreseeable hazard workers may
face, the company must take steps to address the danger.
In addition, there are other laws that could impose liability
on employers for accidents caused by their workers’ distracted
driving. For example, almost all of Canada has traffic laws
barring the use of handheld cell phones and other electronic
devices while driving. So workers who talk or text while driving
are in violation of those laws and thus could be considered
negligent if they cause an accident while doing so. And under
a legal theory called “vicarious liability,” a civil court could hold
an employer responsible for acts of negligence by workers
acting within the scope of their employment. So if a worker
has a distracted driving accident while on the job and causes
CELL PHONES & OTHER ELECTRONICS COMPLIANCE CENTRE
For more information on addressing distracted driving and other
safety issues involving electronic devices, such as iPods, go to the
Cell Phones & Other Electronics Compliance Centre, where you’ll
find, among other things, a Model Distracted Driving Policy.
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
Guilty Pleas to C-45 & OHS Charges Entered in Ontario Christmas Eve Tragedy
When four workers died on Christmas Eve 2009 in Toronto, there were
cries of outrage, calls for changes to Ontario’s workplace safety regulation
and enforcement system and demands that the companies responsible
for this tragedy—and their executives—be harshly punished. The incident
resulted in the creation of the Dean Panel and its subsequent report, which
in turn led to Bill 160 and its changes to the OHS laws. Two companies and
several individuals were charged with OHS violations as well as criminal
negligence. The company that employed the workers and its president
recently pleaded guilty to various charges. Here’s a look at the incident,
charges and guilty pleas.
THE CASE
The Incident: On Dec. 24. 2009 in Toronto, workers were on scaffolding
repairing balconies at an apartment building when the scaffolding collapsed.
They fell 13 storeys. One worker was rescued without injury; another
managed to survive the incident but suffered severe leg and spinal injuries.
Four workers died. All four were wearing harnesses at the time. However,
three of them weren’t using a lanyard tied to a solid structure or lifeline. The
fourth was using a lanyard but it wasn’t properly attached.
The Charges: In Aug. 2010, the Ontario Ministry of Labour laid 61 OHS
charges against Metron Construction Corp. (which employed the workers),
Joel Swartz (its president) and a supervisor. The MOL also charged Swing
“N” Scaff Inc. (which supplied the scaffolding) and its director. A few months
later, the police charged Metron, Swartz and Vadim Kazenelson (a supervisor)
with criminal negligence causing bodily harm for the injured worker and four
counts of criminal negligence causing death for the deceased workers.
The Guilty Pleas: On June 15, 2012, Metron Construction pleaded guilty to
one charge of criminal negligence causing death under the Criminal Code as
amended by Bill C-45. Swartz pleaded guilty to four violations of Ontario’s
OHS Act, each of which alleged that he failed, as a company director, to
ensure that Metron complied with the OHS law and regulations. Specifically,
Swartz pleaded guilty to violating the Construction Regulations by failing to:
77 Take reasonable care to ensure a worker using a fall protection
system was adequately trained and that there were proper training
records, including names of workers and dates of training (Sec. 26.2;
two counts);
77 Take reasonable care to ensure a suspended scaffold was maintained
in a condition that didn’t endanger a worker or was defective or
hazardous (Sec. 93); and
77 Ensure that a suspended platform complied with all aspects of the
Construction Regulations (Sec. 134).
Neither Metron nor Swartz have been sentenced yet. The Crown and
defence submitted a joint submission to the court proposing that Swartz be
fined $22,500 per charge, totalling $90,000. The court doesn’t have to accept
the joint submission but it’s rare for courts to depart from one. As for Metron,
there’s no limit under the Criminal Code on the fine that may be imposed
on a corporation. The Crown is seeking a $1 million fine; the defence hadn’t
yet completed its submissions on sentencing. (Criminal charges against the
supervisor are still pending.)
ANALYSIS
According to Ontario OHS lawyer and Insider Board member Cheryl A.
Edwards, this case is historic as it represents the first corporate guilty plea
in Ontario under the Criminal Code as amended by Bill C-45 in 2004. And
if the $1 million sentence is imposed on Metron, the fine will represent
the highest penalty for criminal negligence causing death for a workplace
incident in Canadian history. In addition, the $90,000 proposed fine for
Swartz will, if imposed, set a new high water mark for a sentence against any
individual—let alone a director and officer—under an OHS law in Canada.
It’s also important to note that, once again, a corporate executive escaped
criminal liability for a workplace safety incident. Instead of requiring Swartz,
Metron’s president, to plead guilty to criminal negligence, the Crown allowed
him to plead guilty to OHS violations. Granted, a $90,000 fine would be
a substantial penalty for him. But given the history of Bill C-45, one has
to wonder exactly what a corporate executive must do to get convicted of
criminal negligence for a safety incident.
OHS Insider Resources
The OHS Insider’s C-45 Compliance Centre has detailed information on
criminal negligence, including the elements of a criminal negligence charge.
In addition, as noted above, this tragedy led to the ongoing Ontario OHS
reform movement. Go to the OHS Insider’s Ontario OHS Reform Compliance
Centre for updates on the reform’s progress and what these changes mean
to you and your workplace.
August 2012 © Bongarde
10
FEDERAL
LAWS & ANNOUNCEMENTS
CASES
June 11-17: Lightning Safety Week
In recognition of Lightning Safety Week, Environment Canada reminded residents of the
dangers posed by this hazard, which is especially common during the summer. Its fact sheet
tells you how to avoid lightning and explains appropriate first aid for lightning strike victims.
Company’s Stevedoring Activities Didn’t Make It
Subject to Federal Regulation
A heavy equipment rental company based in Québec
engaged in intra-provincial road transportation,
maintenance and repair of equipment as well as
stevedoring. Its parent company asked the CSST for a
ruling that the company’s activities related to the shipping
industry fell under federal jurisdiction. The CSST and the
Court of Appeal concluded that its activities came under
provincial jurisdiction. And the Supreme Court of Canada
agreed. The company devoted most of its efforts to
provincially regulated activities, its essential operational
nature was local and its stevedoring activities, which were
integrated with its overall operations, formed just a small
part of its overall operation. Thus, the company’s workers
were governed by provincial OHS law [Tessier Ltée v.
Québec (CSST), [2012] S.C.J. No. 23, May 17, 2012].
June 1: Fewer Injuries by Canada Post Workers in 2011
Canada Post issued its 5th annual Social Responsibility Report, which outlines improvements
in key areas. For example, injury frequency declined by 4.6% in 2011, from 6.5 to 6.2 per
100 full-time employees. Since 2008, Canada Post’s injury frequency rate has decreased by
32.2%.
May 15: Unions Call for More Enforcement of C-45
Around the 20th anniversary of Westray, the United Steelworkers Canada called for increased
enforcement of Bill C-45. The union plans to put together information packages on the law
and meet with attorney generals in each jurisdiction. The president of the Alberta Federation
of Labour advocates dedicated units trained in the use of Bill C-45. And the Canadian Labour
Congress released a guide for investigating corporate negligence in the workplace.
LAWS &
ANNOUNCEMENTS
ALBERTA
June 5: 2011 Annual Report
Released
The WCB released the 2011
Annual Report. Highlights:
• Total claims administered:
193,230
• Lost-time claims accepted:
27,900
• Ineligible lost-time claims:
8.9%
• Fatality claims accepted:
123.
May 24: Bill Introduced on
First Responders’ PTSD
The government introduced
a bill that would amend the
Workers Compensation Act
so that police, firefighters,
paramedics and other first
responders scarred by posttraumatic stress disorder will
no longer have to fight to prove
they’re ill. Bill 1 won’t pass in
the abbreviated session but
will be debated in the fall.
CASES
Record $2.4 Million Fine Imposed for Fatality at Excavation Pit
A truck driver was killed when a 15-metre-high wall of dirt and rock collapsed on him at an excavation pit. The prosecution
argued that two related companies cut corners to complete the project and knew of the dangers associated with an
improperly shored-up wall of the pit for about two months. The court convicted the companies of nine and three
charges and fined them $1,437,500 and $1,035,000 respectively plus the 15% victim surcharges, for a record total fine
of $2,472,500. But because the companies are now bankrupt, the chance of collecting the fines is remote. The owner of
both companies faces 10 charges that are still pending [Perera Development Corp. and Perera Shawnee Ltd., Edmonton
Journal, June 5, 2012].
Timing of Exposure & Appearance of Symptoms Not Enough to Prove Causation
A worker claimed that after he was exposed to fumes from “sweet gas,” he experienced nausea, vomiting and difficulty
breathing. But his workers’ comp claim was denied. And the Appeals Commission upheld the denial. The worker
needed to prove that exposure to the fumes caused his symptoms. Although the timing between the exposure and the
appearance of the symptoms was relevant, it alone didn’t prove causation. And in this case, the fumes could’ve simply
exacerbated the worker’s underlying gastroesophageal reflux, concluded the Commission [Decision No: 2012-493, [2012]
CanLII 30672 (AB WCAC), May 31, 2012].
Disorder Caused by Receipt of Email Was a Compensable Psychological Injury
A worker got an email from her manager that contained previous emails of a discussion between two managers,
including personal and disrespectful comments about her. She was so upset she took time off of work for medical
treatment for an adjustment disorder. Her workers’ comp claim for a psychological injury was denied. On appeal, the
Commission disagreed. Receipt of a written record of negative conversations about the worker wasn’t a normal pressure
that an average worker would experience. The Commission found that the experience was unusual or excessive and
caused the worker stress. Thus, she had a compensable claim for a psychological injury [Decision No: 2012-434, [2012]
CanLII 25284 (AB WCAC), May 10, 2012].
Worker’s Fall from Roof Costs Employer $70,000
A worker was seriously injured when he fell 12 metres from a roof while helping a co-worker operate a roof cutting
machine. His employer was fined $5,000 and, as a creative sentence, ordered to pay $25,000 to the Bent Arrow
program and $40,000 to the Alberta Roofing Construction Safety Association [CCS Contracting Ltd., Govt. News Release,
May 30, 2012].
LAWS & ANNOUNCEMENTS
May 3: Head of Council Accused of Bullying
Four former employees of the Gwich'in Tribal
Council have accused the CEO of bullying and
harassment since 2010, claiming they were fired
without cause. In a letter, they also say the council
president ignored these concerns when brought
to his attention. In response, the president said
the board will launch an independent review,
but it needs more time.
July 3: Fall Protection Campaign Began
On July 3, the WCB began a Zero Tolerance Campaign against fall protection violations.
OHS officers will inspect Island workplaces for fall protection violations and strictly
enforce the OHS Act and Regulation.
PE
NT
LAWS & ANNOUNCEMENTS
June 11: 2011 Annual Report Released
The WCB released the 2011 Annual Report, which describes the accomplishments of
the past year. 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.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
11
ONTARIO
LAWS & ANNOUNCEMENTS
CASES cont'd.
June 1: New Workplace Safety Poster Released
The MOL released a free workplace poster, Health & Safety at Work – Prevention
Starts Here, in English, French and 15 other languages. Under the OHS Act,
employers are required to post this poster in the workplace. But to give employers
sufficient time to become aware of this new requirement, inspectors won’t start
enforcing it until Oct. 1, 2012.
Supervisor & Company Fined $105,000 for Drill Bit Incident
Workers at a diamond drill were attaching a drill bit to a casing.
They used a pipe wrench to hold the drill bit in place and engaged
the drill so that its hydraulic power threaded the casing onto the
bit. As the casing was tightening, the wrench slipped and hit a
worker, causing serious cuts and broken bones. The MOL found that
the company had a policy forbidding the use of hydraulic power
together with a pipe wrench. But workers didn’t know about the
policy. The company pleaded guilty to failing to provide information
and instruction to the workers on how to safely attach a drill bit to
a casing and was fined $100,000. The supervisor present during the
incident pleaded guilty to failing to ensure a safe procedure was
used by workers attaching a drill bit to a casing and was fined $5,000
[Forage Orbit Garant Inc./Orbit Drilling Inc. and Michael Menard,
Govt. News Release, June 5, 2012].
CASES
Due Diligence Defence Fails for Lack of a Written Policy & Training
A worker removed a fence guarding the back of an induction hardener to
troubleshoot a leak. He was seriously injured by an electrical shock. The employer
was charged with failing to provide the worker with sufficient instruction on
troubleshooting a leak. The company argued that the worker didn’t use a spotter as
required by his training. But the court found that its training as to the use of spotters
while troubleshooting was unclear. The training focused on lockout procedures
and left workers to decide on their own when to get help while troubleshooting
a machine. Given the amount of troubleshooting done in the workplace, due
diligence required the employer to develop a written policy on troubleshooting and
a related training program. So the court convicted the employer [Ontario (Ministry
of Labour) v. Linamar Holdings Inc., [2012] O.J. No. 2159, May 7, 2012].
Crane Operator’s Disciplinary Record and Conduct Justified His Firing
A crane operator told his supervisor that he wouldn’t lift a box that didn’t have
a load capacity rating on it. The supervisor said the load was safe to lift and did
so himself. The operator reported this conversation to the MOL. The next day, he
raised an issue about a co-worker and was unhappy with how the supervisor
handled it, walking out on a meeting. The following day, the supervisor wrote
up the operator for improper use of a spreader bar. After a meeting about this
infraction, the operator was fired. He claimed he was fired for raising safety issues.
The arbitrator upheld his termination, ruling there was no reprisal. The operator
has a serious disciplinary record. His dishonesty in the employer’s investigation,
insubordination, unsafe use of the spreader bar and lack of remorse were serious
culminating incidents that justified his firing [National Steel Car Ltd. v. United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and
Service Workers International Union, Local 7135, [2012] CanLII 25292 (ON LA),
April 30, 2012].
Town Fined $60,000 for Injury to Young Worker’s Hand
Summer students working for a town were repairing the lids of catch
basins. One worker lifted the lid with a pickaxe so another worker
could apply tape to the basin. While the second worker’s hand was in
the basin, the lid slipped and crushed his hand. An MOL investigation
found that the workers didn’t have a direct supervisor and hadn’t
been shown how to do the job. Instead, they got instructions from
a manager, who then sent them to repair the catch basins alone.
The court fined the town $60,000 for failing to provide adequate
information and instruction to the workers [Corporation of the Town
of Pelham, Govt. News Release, May 23, 2012].
Mining Company & Supervisor Charged in Deaths of Two Miners
Two miners died when wet mud and ore flooded the tunnel where
they were working. As a result, the government charged the mining
company with nine violations of the OHS Act and an unnamed
supervisor with six violations. The United Steelworkers International
claims the company ignored ongoing problems with flooding in the
mine and wants criminal negligence charges brought against it [Vale,
June 1, 2012].
LAWS & ANNOUNCEMENTS
LAWS & ANNOUNCEMENTS
NU
YT
June 1: New First Aid Requirements Took Effect
The Minimum First-Aid Regulations were repealed and Part 18 (Minimum FirstAid Requirements) was added to the OHS Regulations, effective June 1, 2012.
May 28: New Codes of Practice Released
The WSCC released new codes of practice on:
•Asbestos abatement
•Hazard assessment.
NEW BRUNSWICK
LAWS & ANNOUNCEMENTS
CASES
June 1: Results of Consultation on OHS Demerits Released
The WHSCC released the results from its consultation with stakeholders on OHS demerits, additional
assessments imposed on employers that commit OHS violations. The responses indicate that nearly
two thirds of respondents:
• Don’t think demerits are necessary
• Don’t believe demerits will provide a better result than existing enforcement tools
• Oppose the pursuit of a legislative amendment to allow for demerits.
Injury Suffered while Demonstrating Flexibility
Covered by Workers’ Comp
When two co-workers teased a worker about
her age, she demonstrated how flexible she still
was by lifting her leg up high. But her other leg
slipped, causing her to fall and break her wrist.
Her workers’ comp claim was denied because
she was injured while engaging in horseplay.
The Appeals Panel disagreed. The worker was
injured at work and during her shift. It found
that the lifting of her leg didn’t constitute “willful
misconduct” that would warrant rejecting her
claim. So it ruled that her injury was covered by
workers’ comp [Re 20126466, [2012] CanLII 27489
(NB WHSCC), May 17, 2012].
May 29: Action Plan on Disabled Workers Released
Two action plans containing recommendations designed to increase the participation, inclusion
and employment of people with disabilities were released at the annual Disability Awareness Week
breakfast. The Employment Action Plan for Persons with a Disability in New Brunswick contains 38
recommendations to change and build policies within government, enhance services, build a culture
of true collaboration, engage employers and fundamentally shift how government, organizations and
the private sector address disability and employment.
August 2012 © Bongarde
12
BRITISH COLUMBIA
LAWS & ANNOUNCEMENTS
CASES
May 31: Bill 14 Passes Third Reading
Bill 14, the Workers Compensation Amendment Act, 2011, passed Third Reading
in the Legislature. The amendments result in changes to the following three areas
of the Workers Compensation Act:
Resort Banned Skechers Shape-Up Sneakers Without Full Risk
Assessment
The JHSC at a resort recommended a ban on the wearing of
Skechers Shape-Up sneakers and similar shoes with curved soles,
claiming they were unsafe. The recommendation came after a
worker wearing Skechers tripped and was hurt. The resort issued
the ban. Several workers who wore such shoes objected. So the
union filed a grievance. Although the arbitrator acknowledged that
the resort had a duty to ban such shoes if they posed a safety risk,
neither the employer or JHSC did a thorough risk assessment of
this type of shoes. Thus, the resort didn’t have a reasonable basis
to conclude that they were inappropriate for use at work by all
workers in all departments. But the arbitrator allowed the policy to
stay in effect until Sept. 30, 2012 to give the JHSC and resort time
to do a thorough risk assessment [Unite Here Local 40 v. Harrison
Hot Springs Resort & Spa (Footwear Grievance), [2012] B.C.C.A.A.A.
No. 68, May 16, 2012].
• Compensation for mental disorders (effective July 1, 2012)
• Calculation of long-term average earnings for apprentices and learners
(effective July 1, 2012)
• CPI adjustments to the dollar values in the Act (effective retroactively to Jan.
1, 2012).
May 30: Investigation Report on High-Rise Fatality Released
WorkSafeBC released its investigation report into the death of a worker at a
high-rise construction site when a concrete wall form suddenly fell, striking the
worker who was standing nearby. The investigation concluded that several factors
contributed to this tragedy, including:
• Lack of site-specific design drawings
• Workers’ regular violation of a safe work procedure that barred climbing the
wall form
• Ineffective nailing of the form’s aligner brace.
May 17: Coroner’s Jury Recommends Mandatory Safety Training
A coroner’s jury looking into the deaths of three workers on a mushroom farm
recommended that all BC agricultural workers and their employers undergo
mandatory two-day training on occupational health and safety. The jury also
urged WorkSafeBC to hire more agricultural inspectors, educate workers on
the risks of operating in confined spaces, conduct more random inspections
and require all employers to submit yearly reports declaring they’ve fulfilled
their safety obligations. The government indicated its intent to act on these
recommendations.
Employer Ordered to Reinstate Worker Fired for Using ‘F’
Word
A worker used the “f” word while talking to a benefits case manager
about the denial of his short-term disability claim. She reported the
conversation to his employer, which fired him. The union filed a
grievance. The arbitrator noted that the employer didn’t investigate
the incident; it simply relied on the case manager’s account in
deciding to fire the worker. This incident wasn’t enough to justify
firing the worker. Instead, it should’ve issued him a written warning
about the use of language. So the arbitrator ordered the employer
to reinstate the worker [Teamsters Local Union No. 213 v. Canplas
Industries Ltd. (Boyko Grievance), [2012] B.C.C.A.A.A. No. 47, April
28, 2012].
LAWS & ANNOUNCEMENTS
QUÉBEC
June 5: Case Study on Ergonomics Improvements to Workstation Released
The IRSST published a document intended for OHS professionals, ergonomists, engineers and anyone faced with making improvements to a workstation
that offers very little leeway for change. The document provides a brief description of the process and collaborative approach used to improve the
workstation of Montréal subway operators, who experienced discomfort caused by their seat, confined work space and vibration.
May 31: Directory of Industrial Machine Safety Devices Released
The IRSST released an updated version of its online directory on industrial machine safety devices, which contains useful information on the manufacturers
of such devices most frequently used in Québec. The site presents about 150 manufacturers and 76 safety devices grouped in 10 classes, including electrical,
programmable electronic, mechanical, pneumatic and hydraulic safety devices.
MANITOBA
LAWS & ANNOUNCEMENTS
CASES
May 17: Campaign Begins to Raise
Awareness of Safety of Road Workers
The eighth annual SAFE Roads campaign
began. The campaign is designed to
remind motorists to slow down when
driving past road construction projects and
when sharing the road with emergency
workers, such as firefighters, hydro workers,
paramedics and police officers.
Employer Fined $54,100 after Worker Loses Three Fingers in Table Saw
Three fingers on a worker’s left hand were amputated when it contacted the blade of a table saw. His
employer was fined $54,100 for failing to ensure any machine or tool in the workplace was capable of
safely performing the functions for which it was used and that nothing involved in a serious incident was
altered or moved until at least 24 hours after notice was given to WHS [Polar Window of Canada, Govt.
News Release, April 18, 2012].
May 23: Proposed Changes Would
Expand Discrimination Protection
Proposed changes to the Human Rights
Code would protect Manitobans from
discrimination based on gender identity
and disadvantaged social status, protecting
individuals who are, or are perceived to be,
undereducated, underemployed, homeless
or living in inadequate housing.
Worker’s Hand Injuries Cost Employer $42,050
When a worker reached with both hands into a press to pull out a boot plate, the press pinched his fingers
in the U-shaped part of the boot plate. He suffered three broken fingers on his left hand with partial
amputation of the index finger and substantial loss of skin to the middle finger and one broken finger on
his right hand. His employer was fined $42,050 for failing to ensure that the press was safe and without
risks to health [Atom-Jet Industries 2002 Ltd., Govt. News Release, May 24, 2012].
Severing of Worker’s Fingers Results in $36,050 Fine
A worker severed four fingers from his right hand (they were later re-attached) when a piece of plywood
he was cutting on a table saw kicked back. The court fined his employer $36,050 for failing to ensure that
a machine or tool in the workplace was capable of safely performing the functions for which it was used
[Jacobson & Grenier Ltd., Govt. News Release, May 24, 2012].
For more safety compliance advice, visit us on the web at www.OHSInsider.com
13
LAWS &
ANNOUNCEMENTS
NL
Jan. 1, 2013: New Confined Space
Training Requirements Take Effect
The WHSCC reminded employers
and workers that, as of Jan. 1, 2013,
workers operating in confined spaces
will be required to have completed
training with an approved confined
space entry training provider. The
new training will be valid for three
years from the date of completion.
Required training is available now
through approved providers.
CASES
Workers Fined for Fall Protection Violations
During an inspection of a home construction site, an OHS officer saw workers on the roof using fall protection
equipment incorrectly. Although they wore harnesses, the harnesses weren’t attached to anchorages. But their
employer had provided the required fall protection training to all four workers. They pleaded guilty to violating the
OHS Act and regulations by failing to use equipment provided for protection in accordance with the instructions for
use and the training received. The court fined three workers $500 each and the fourth, who also held supervisory
duties, $750 [Govt. News Release, May 22, 2012].
Supervisor & Company Charged with OHS Violations for Forklift Incident
At a wharf, a worker was struck by a forklift. The fish processing company that owned and operated the forklift was
charged with four OHS violations relating to its alleged failure to ensure that mobile equipment was maintained in
safe working order and that a safe workplace and equipment was provided and maintained. An unnamed company
supervisor was also charged with knowingly permitting a worker to operate mobile equipment that could create an
undue hazard to the health or safety of a person [Barry Group Inc., Govt. News Release, June 5, 2012].
NOVA SCOTIA
LAWS & ANNOUNCEMENTS
CASES
Aug. 29: Deadline for Comments on Proposed Changes to OHS
Regulations
The Department of Labour and Advanced Education is proposing changes
to the regulations under the OHS Act to make them easier to use and keep
them up to date with national standards. For example, it proposes the
consolidation of many of the regulations into one new Workplace Health
and Safety Regulation and the use of automatically updated references to
standards in the regulations. Comments on the discussion paper on the
proposed changes are due by Aug. 29.
Coal Miner Died from Lung Cancer—Not Work-Related Condition
After a former coal miner died, his surviving spouse filed a workers’ comp
claim, arguing that his death was the result of a work-related condition, coal
worker’s pneumoconiosis (CWP). The claim was denied so she appealed.
But the Appeals Tribunal denied her appeal. The evidence indicated that the
worker had died of lung cancer and related complications, which were likely
caused by his smoking history. The Tribunal found that the CWP played no or
an insignificant role in his death [Re: 2010-681-AD, [2012] CanLII 29323 (NS
WCAT), May 24, 2012].
May 23: New WCB Policies to Take Effect
The WCB approved changes to policies it uses to set employers’ assessment
rates, which will apply to 2013 assessment rates. It will also no longer
send surcharge warning notices to employers who previously had to pay
surcharges within the past three years. And it amended policies to make
it less likely an employer would receive an experience rating merit if a
worker was killed on the job. Lastly, it approved a new policy that will spell
out the criteria employers must meet if they want to receive a refund on
surcharges.
Custodian’s Carpal Tunnel Syndrome Was Work-Related
A custodian started work at a new school that required more mopping. After her
hands started to fall asleep and go numb, she filed a workers’ comp claim for
bilateral carpal tunnel syndrome, which was denied. But the Tribunal ruled that
her condition was covered by workers’ comp. Based on the testimony, her job
description, the medical evidence and common sense, the Tribunal concluded
that it was at least as likely as not that the worker’s condition arose out of and
in the course of her employment [Re. 2011-633-AD, [2012] CanLII 25460 (NS
WCAT), May 7, 2012].
SASKATCHEWAN
LAWS & ANNOUNCEMENTS
CASES cont'd.
May 17: OHS Act Amendments Passed
The government passed amendments to The OHS Act,
1993, which include enhanced health and safety duties
for employers, supervisors, contractors and suppliers. The
amendments will take effect Sept. 3, 2012. Highlights:
• The maximum penalty for the serious injury or death of
a worker will increase from $300,000 to $1.5 million—
the highest in Canada
• Clarification of the requirement for employers and
other parties to provide training and supervision of
employees, as well as maintenance of equipment to
ensure the safety of all workers
• Increased investigative authority of occupational health
officers in the course of their duties.
Backhoe Operator Convicted of OHS Violations for Fatal Gas Explosion
A backhoe operator was demolishing some buildings when he snagged a natural gas riser with
his equipment, causing gas to seep into a butcher shop, which exploded. Two workers were
killed and several others were seriously injured. The court convicted the operator of two OHS
violations, ruling that he was the person with the greatest amount of control over the operation.
It also rejected his due diligence defence, noting that he knew the risk of working around live
gas lines and the potentially disastrous consequences of snagging a gas line with the bucket of
his backhoe. As there was no pressing urgency, the operator had plenty of time to carefully dig
with a shovel to expose the riser [R v. Riemer, [2012] SKPC 6 (CanLII), May 16, 2012].
CASES
Mine Fined $420,000 for Death of Worker Struck by
Piece that Fell from Crane
A surface mine worker was killed after being struck in the
head by a component that fell from a load being lifting by an
overhead crane. The mine pleaded guilty to failing to provide
or maintain a system of work or working environment that
ensured, as far as reasonably practicable, the health, safety
and welfare of a worker. The court fined it $420,000 [Agrium
Inc., Govt. News Release, May 30, 2012].
Sailing Instructor Could Sue over Injuries
An assistant sailing instructor was loading a sailboat onto a trailer when the mast contacted
overhead power lines. He suffered severe electrical burns that ultimately resulted in the
amputation of his right hand. He sued the sailing club association and others for his injuries.
The defendants argued that his lawsuit was barred by workers’ comp law. The Board agreed,
ruling that he didn’t fall within an exception for sports instructors because he wasn’t employed
by a professional organization. But the court disagreed. The law didn’t require sports instructors
to belong to a professional organization for the exclusion to apply—the Board imposed that
requirement in a policy. And restricting this exclusion through a policy was unreasonable and
exceeded the Board’s powers. So the court ruled that the exclusion did apply and thus the
instructor’s lawsuit wasn’t barred by workers’ comp [Campbell v. Workers’ Compensation
Board, [2012] S.J. No. 318, May 22, 2012].
Death of Worker Due to Lack of Guard Costs Company $16,800
A worker was killed while installing culverts when he was dislodged from a piece of machinery
that rolled onto him. His employer pleaded guilty to failing to ensure that an effective safeguard
was in place to prevent contact with a dangerous part of a machine. The court fined it $16,800
[In-Line Contracting Ltd., Govt. News Release, June 5, 2012].
August 2012 © Bongarde
14
INSPECTIONS continued FROM PAGE 1
inspections. We’ll explain why inspections are so important for
safety compliance and give you five tips for making this important
safety compliance tool more effective.
Defining Our Terms
When we refer to inspections in this article, we’re talking about
general safety inspections of all or part of the workplace. We’re
not talked about specialized inspections that may be required by
the OHS laws, such as fire inspections or inspections of particular
types of equipment or hazards (pre-use inspections of fall
protection, vehicle circle checks, etc.).
Inspections, Compliance & Due Diligence
Workplace safety inspections are important for a few reasons.
First, all jurisdictions require regular workplace safety inspections
in their OHS laws. In some jurisdictions, the OHS law requires
the JHSC to conduct the inspections; in others, the employer
is required to conduct inspections or ensure that they’re done.
(See the chart on OHSInsider.com for the employers’ duties as
to workplace safety inspections under the OHS laws of each
jurisdiction.) But in general, both JHSCs and employers have
inspection responsibilities.
So you should do safety inspections to comply with the
inspection requirements in the OHS law. But inspections can also
help ensure that you’re complying with other OHS requirements.
As O’Reilly explains, they can help employers “demonstrate that
what should be in place is in place.” And they can enable employers
to be proactive by identifying changes in the workplace and new
hazards that need to be addressed as well as opportunities for
safety improvements, she says.
Lastly, safety inspections can play an important role in proving
due diligence. Explanation: If a company is charged with an OHS
violation, it can avoid liability if it can prove that it exercised due
diligence. The due diligence defence doesn’t require employers
to be perfect; it just requires them to take all reasonable steps
to prevent violations from occurring. And conducting regular and
effective workplace inspections is one of the reasonable steps
that courts are likely to expect employers to take.
The bottom line is that failing to conduct safety inspections
can lead to liability and safety incidents, while conducting such
inspections can help prevent incidents from happening and help
the company avoid liability for OHS violations.
5 SAFETY INSPECTION TIPS
Tip #1: Have Supervisors Conduct Regular Inspections
O’Reilly says that employers often see safety inspections as the
domain of the JHSC. They don’t see the value or point in doing
inspections from their own perspective. And the OHS laws may
by “too subtle,” she says, if the law only outlines the minimum
inspection requirements for JHSCs and doesn’t clearly outline
the specific requirements for inspections done by employers. For
example, the OHS law may simply say that the employer must
ensure inspections are done without stating the frequency of such
inspections or who must actually conduct them. Or an employer’s
inspection duty may just be implied by the general duty clause.
But even if the OHS laws don’t explicitly require employers to
conduct their own safety inspections, they should do so anyway,
she advises. Employer inspections differ from JHSC inspections in
several ways. For example, inspections done by JHSC members
tend to focus on the “low hanging fruit” or obvious hazards,
such as a burnt out light bulb or tear in the carpet, observes
O’Reilly. In contrast, employer inspections look at the big picture,
including risks that workers may be exposed to and gaps in safety
training and communications, she explains. They also focus on
the company’s overall compliance with not only the OHS laws but
also the company’s own OHS program.
In addition, JHSC inspections are usually done by worker
members of the JHSC. And even if the JHSC members get
specialized training in being on the committee, they may not
be qualified to do thorough inspections. In comparison, the
employer chooses who does its inspections and so can ensure
that those people are properly trained and qualified, explains
O’Reilly. For example, she believes that supervisors should do
employer inspections of the areas or departments for which
they’re responsible. Supervisors are already knowledgeable about
the hazards and issues in these areas. And the employer can—
and should—provide them with training on how to conduct a
proper inspection, she adds.
Lastly, the OHS laws generally require the JHSC to inspect all
or part of the workplace only once a month. And JHSCs rarely
do inspections more frequently than required. But an employer
must determine if once-a-month inspections are sufficient to
ensure continual compliance, especially in high risk workplaces.
Employer inspections should be done more frequently than
once a month unless the workplace is low risk, such as an office
building. For example, O’Reilly suggests that supervisors in high
risk environments do daily inspections of their areas.
Tip #2: Use Customized Inspection Forms
For both JHSC and employer inspections, it’s important to
document each inspection and its results. And there are plenty
of generic, boilerplate inspection forms available for this purpose.
But O’Reilly says that such forms should only be a starting point.
To get the most out of your inspections and these forms,
customize them for your workplace and its hazards, advises
For more safety compliance advice, visit us on the web at www.OHSInsider.com
15
Insider Says: For more on JHSCs and inspections, see “The
Joint Health and Safety Committee, Part 1: The Committee’s
Role in Workplace Inspections” and “The Joint Health and Safety
Committee, Part 2: Five Steps for Effective Workplace Inspections.”
O’Reilly. In addition, your inspection form should spell out
the requirements of both your jurisdiction’s OHS law and your
company’s OHS program. So instead of asking for verification
that fall protection is used when required, the form should have
a place for verification that workers used fall protection when at
heights of three metres or more (or whatever the applicable OHS
law requires), she explains. And if your OHS program, say, requires
a certain job to be done by two workers, the form should have a
space for verification that this internal requirement is being met,
she adds.
O’Reilly also says it’s very important for inspection forms to have
lots of blank space in which the individuals doing the inspections
can write in comments and observations. Lastly, when hazards
are identified in an inspection, they should be noted on the
inspection forms. But the forms should also note who is going to
be responsible for correcting or addressing that hazard. Including
this information on the form will help ensure proper follow up on
identified safety issues, explains O’Reilly.
Insider Says: The OHS Insider has several workplace inspection
checklists that you can download and tailor for your workplace
as discussed above.
Tip #3: Give Advanced Notice of JHSC Inspections
JHSC members may be frustrated by the lack of cooperation
they get from workers and supervisors when doing their
inspections. One suggestion for addressing this problem is
giving advanced notice of such inspections, says O’Reilly.
Supervisors, who may be responsible for production, may react
to a JHSC inspection better if they can plan for it to reduce
any interference with the work and slow down of production,
which can be a concern in a manufacturing environment.
By posting a schedule of upcoming inspections, you give
supervisors a chance to adjust their work or production
schedules accordingly, explains O’Reilly.
hazards and this expertise enhances the inspection process. But
there’s something to be said about having “fresh eyes” inspect the
workplace, notes O’Reilly. When you’re too close to something,
you can’t view it objectively and may not see all aspects of it. So
she suggests having supervisors trade off and inspect each other’s
areas. Or you could put together an inspection team that includes
individuals from outside of the safety department, such as
members of the HR, operations or engineering staff. And if your
company has multiple facilities nearby, have a team from another
facility inspect yours and vice versa. But because expertise is so
valuable for effective inspections, “fresh eye” inspections may
only be appropriate to do occasionally, she warns.
Tip #5: Instill Idea that Everyone Is an Inspector
The word “inspection” may bring to mind a very formal,
structured process. And many safety inspections are—and should
be—formal, structured and documented. But the truth is that
all workers regularly conduct inspections without even realizing
it, observes O’Reilly. For example, most workers generally look
over their work stations before starting their shifts, making sure
everything is in place, they have their PPE, etc. And employers
can “leverage this general awareness,” she says, by instilling
in workers the idea that simply being observant and “paying
attention to their surroundings” is a type of inspection.
BOTTOM LINE
Workplace safety inspections are opportunities to evaluate the
company’s whole OHS program, says O’Reilly. So it’s important
to not only do regular inspections but also do them as effectively
as possible. Using these tips, safety coordinators can help
improve safety inspections of their workplace and thus ensure the
company’s compliance with the OHS laws.
INSIDER SOURCE
Yvonne O’Reilly, CRSP: O’Reilly Health and Safety
Consulting; (416) 294-4141; www.ohsconsulting.ca; info@
ohsconsulting.ca.
Results of Safety Inspection Poll
Of course, some would argue that you get a more accurate
picture of the workplace when inspections are unannounced
and there’s some truth to that statement. So O’Reilly
recommends using a mixed schedule of announced and
unannounced inspections.
OHSInsider.com asked readers for their biggest workplace safety
inspection problems. The results:
Tip #4: Have “Fresh Eyes” Conduct Periodic Inspections
• Doing them as regularly as required by OHS law (19%); and
One advantage of having supervisors conduct employer inspections
of their own areas is that they’re familiar with the work and
• Getting cooperation from workers and/or supervisors (52%);
• Conducting effective inspections (22%);
• Responding to the results to the inspection, such as
addressing identified hazards (22%);
• Doing them at all (10%).
August 2012 © Bongarde
16
T
An Interview with Dylan Short, Chair of the OHS Summit 2012
he chair of the OHS Summit 2012, being held Oct. 29
and 30 in Toronto, is Dylan Short, CHSC, CRM, Managing
Partner, The Redlands Group. Short is a senior safety,
health and education executive leader with a variety of solid
accomplishments in the public, private and not-for-profit sectors.
He isn’t a newcomer to the OHS Summit, having participated in
prior summits as a speaker. But he eagerly accepted the post of
chair this year, seeing it as a unique opportunity to put together
topics and speakers important to him as a health and safety
professional and to other such professionals.
Key Note Speakers
Short is excited about the conference’s two keynote speakers.
Kicking the conference off will be Jeff MacInnis, a competitive
skier, member of the first team to travel overland from London
to New York and the first person to sail the Northwest
Passage. MacInnis will be talking about “embracing risk as
an opportunity” using his six-point system. As MacInnis is an
energetic and entertaining speaker, Short believes he’ll start the
conference off on the right foot, getting the attendees inspired
and excited.
Day two of the conference will start with the second keynote
speaker, George Gritziotis, Ontario’s Chief Prevention Officer
(CPO). The CPO is a new position in Ontario and came out of
the Dean Panel’s report. Short says the changes being made
to the regulation of workplace safety in Ontario are creating
a template being looked at—and perhaps adopted by—other
jurisdictions. (For example, Manitoba recently created its own
CPO position.)
Short was impressed that Gritziotis specifically requested time
in his session for a Q and A. He seems eager to talk to attendees
about what’s happening in Ontario and to interact with them.
Short says the “pattern of engagement [with stakeholders] that
began with the Dean Panel has continued with the CPO.” It
appears that Gritziotis is genuinely interested in listening to
feedback and ideas from all stakeholders, observes Short. So if
you have any questions for Gritziotis about Ontario’s prevention
system, you’ll have a chance to ask them at the conference.
Insider Says: The Insider had a chance to speak with Gritziotis
soon after he was appointed CPO. That interview is available
on OHSInsider.com.
Conference Theme & Three-Track Approach
Both keynotes speakers fit well with the conference’s theme:
“Integrating Change & Managing Risk to Improve Your OHS
Program.” This theme was chosen for a few reasons, explains
Short. First, “the focus on change seemed natural,” he says,
“because health and safety lives in a world of flux and change.”
There are always new laws, new court rulings, new hazards,
etc. And safety professionals need to be flexible and adapt to
these changes, he adds.
Short says risk also seemed like a good area of focus. Change
and risk mean different things to different people, he observes.
He sees them as opportunities and possibilities—not things
to be feared. But Short realizes that not everyone shares his
perspective. However, as risk and safety management become
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
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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
17
more integrated in many organizations, addressing risk and risk
management at the conference seemed appropriate.
The conference theme drove the development of a threetrack approach:
Risk and risk management. Short is one of the speakers in
this track, which focuses on taking a risk management approach
to workplace health and safety. In one session in this track,
Norm Keith, an OHS lawyer at Gowlings, will discuss the impact
of standards on OHS and C-45 related safety prosecutions.
Ontario OHS reform. The sessions in this track focus on the
OHS reform movement underway in Ontario. It also includes
a session by Ryan J. Conlin, an OHS lawyer with Stringer LLP,
on the Arthurs Commission report, which proposes extensive
changes to the province’s workers’ compensation system.
Attendees outside of this province can still benefit from these
sessions, says Short, because what’s happening there may
foreshadow what’s to come in other jurisdictions across Canada.
Naturally, each jurisdiction will put its own spin on the Ontario
approach, which is the way it should be, he notes. Attending
these sessions gives safety professionals outside of Ontario “a
chance to get ahead of the curve,” advises Short.
General practitioner. Although the developments in
Ontario are important, the conference isn’t intended to be
Ontario-centric. That’s why there’s also a general practitioner
track, which focuses on workplace safety at a national level,
says Short. And the speakers for the sessions in this track reflect
this approach.
Differences from Other Safety Conferences
Short believes that the OHS Summit 2012 is different from
other safety conferences because it brings together the best
speakers on the topics that are the most important to safety
professionals in Canada right now. And attendees won’t just get
to hear these speakers talk—they’ll also leave the conference
with tools and techniques that they can immediately apply to
their own workplaces, explains Short. He believes that safety
professionals really need to know what this issue or change
means to them and how they can apply the speaker’s advice
to their workplaces. The practical tools attendees will get from
each session help bridge the gap between straight theory and
actual practice, says Short.
A few of the sessions that Short is hoping to attend himself
include:
•
A presentation by OHS lawyer Cheryl A. Edwards from
Heenan Blaikie on discipline for safety that will cover the
hot topic of reprisals;
•
Theresa Frechette’s session on JHSCs and how to make
them more effective; and
•
A session by Jack Slyford, an associate with The Redlands
Group, on proactive hazard prevention, with a focus on
Part 19 of the federal Canada OHS Regulations. He’ll
discuss taking a risk-based approach to health and safety.
Who Should Attend
Safety professionals are obviously the core audience for the
conference. But Short believes that anyone with health and
safety responsibilities or challenges in their job can benefit from
attending. Examples: JHSC members, supervisors, individuals with
cross-functional roles (such as HR or environmental staff who also
handle workplace safety issues).
For more information on the OHS Summit 2012, including the
agenda, and to register, go to www.OHSSummit.ca.
INSIDER SOURCE
Dylan Short, CHSC, CRM: Managing Partner, The Redlands
Group, (416) 843-7167, [email protected]
RECORDED WEBINARS
At OHSInsider.com you can find not only
information on upcoming webinars, but also
recordings of prior webinars on topics such as:
XX
Employee social media use
XX
Complying with workplace violence laws
XX
10 common JHSC mistakes
XX
Creating a near miss reporting culture
XX
Young worker health & safety training
XX
Applying the new CSA Z1002 Standard
XX
Controlling worker absenteeism.
Remember—OHS Insider Pro members can view
recorded webinars at OHSInsider.com for FREE.
August 2012 © Bongarde
18
MANAGING YOUR OHS PROGRAM
M
6 Strategies for Improving Management of Compliance with EHS Regulations
any companies have one program to manage their
compliance with environmental, health and safety laws
and regulations. So-called EHS programs can be very
effective given the overlap in these areas and laws. But how do
you know if your EHS program is effective—or as effective as
it could be? Benchmarking—that is, comparing your program
to others known for their high quality—is a useful method of
evaluating an EHS program. The Aberdeen Group released a
benchmarking study based on the results of its survey of 175
executives of manufacturing companies on EHS compliance.
We’ll tell you about this study and how to use strategies from
other companies to improve the effectiveness of your EHS
program.
The Aberdeen Study
The Aberdeen study evaluated participating companies in the
following five categories:
• Process: What’s the scope of process standardization?
What’s the efficiency and effectiveness of this process?
• Organization: How’s your company currently organized
to manage and optimize this particular process?
• +13% operating margin v. corporate plan.
It’s important to note that these top companies aren't
just good in one area; they’re able to effectively manage
performance in compliance, safety, energy efficiency and
profitability. As a result, they not only create a safer and more
compliant environment for workers but also gain a competitive
edge by possessing higher operational efficiencies at a reduced
overall cost. (See the box below for a demographic profile of
the companies included in the survey.)
6 Successful Strategies
The researchers found that when it came to EHS program
management, the best in class companies had several things in
common. Based on their best practices, here are six strategies
you can use to help your company rise to the top in this area:
Build compliance into the business process. Companies
that think of compliance as a cost of doing business tend
to have a “check the box” attitude towards it. Instead, you
should build compliance into your overall business processes
to ensure predictability and prevent unnecessary fines for
violations of safety and environmental regulations.
• Knowledge: What visibility do you have into the key
data and intelligence required to manage this process?
• Technology: What level of automation have you used to
support this process? How is this automation integrated
and aligned?
• Performance: What do you measure? How frequently?
What’s your actual performance?
It identified certain companies as “best in class.” Such
companies are distinguished by:
Profile of Survey Companies
The manufacturers included in the survey were
primarily from North America (69%), with 14%
coming from the Asia-Pacific region, 10% from
Europe and 7% from the rest of the world. They
represented the following industry sectors:
Chemicals (24%);
Oil and gas (10%);
• 12% decrease in regulatory citations from the previous
year;
High tech (9%);
• 0.3 injuries recorded per 100 fulltime employees per
year;
Metals, mining and minerals (7%);
• 1% repeat incident rate (ratio of repeat incidents over
total number of incidents in a year);
Automotive (6%); and
Food and beverage (7%);
A&D (6%);
Industrial equipment manufacturing (5%).
• +9% performance v. energy goals; and
For more safety compliance advice, visit us on the web at www.OHSInsider.com
19
Streamline the reporting process. Reporting on
compliance to regulators, stakeholders, customers and
auditors can be a daunting task. So streamline the reporting
process by establishing standardized procedures based on best
practices and investing in software tools, such as compliance
management systems.
Automate collection of EHS data. Manual processes can
make it difficult to find relevant information quickly and when
needed, such as when a government inspector is demanding
it. Companies need to automate EHS data collection and use
that data to enable intelligent decision-making.
Establish corporate EHS policies based on a culture of
continuous improvement. To ensure that EHS best practices
are established and shared across functional groups, you
should establish corporate EHS policies and update them on a
continual basis as improvements are made and final results are
tracked. Doing so will also enable consistency in the business
processes across the company and help prevent and reduce
the losses from EHS incidents.
Invest in a centralized knowledge base that provides
visibility into regulatory requirements. To ensure
compliance, you have to understand the regulations that
are relevant to your company. But few companies invest in
a central knowledge base that stores all relevant regulatory
information. Best in class companies are nearly twice as likely
to invest in software that enables them to access up-to-date
information about current and future safety and environmental
regulations.
Invest in an EHS solution. It’s also important to invest
in what the survey calls an “EHS solution”—that is, software
and technology that records EHS metrics, automates data
collection, improves visibility and promotes accountability
within the company. Nearly 60% of best in class companies
have invested in such solutions, which help them record and
store information in a common location and provide that data
to the decision-makers who need it.
BOTTOM LINE
Based on the Aberdeen benchmarking study, companies that
excel in the management of their EHS programs do three key
things:
• Automate the collection of EHS data and provide that
information to decision makers in an actionable form;
• Establish standardized policies to prevent business
interruption due to risks related to EHS incidents; and
• Invest in compliance management, reporting, dashboards
and analytics to provide visibility into EHS data.
By following the lead of these best in class companies, you
can help your company improve its EHS program management
and thus reduce the cost of compliance, better protect the
safety of workers and the environment, and surpass corporate
sustainability goals.
INSIDER SOURCE
“Compliance Management in Environment, Health and
Safety,” Ismail, Littlefield and Shah, the Aberdeen Group,
April 2011.
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20
TRAPS TO AVOID
T
Disciplining Workers for Exercising Safety Rights
he OHS laws across Canada bar employers from disciplining
workers for exercising their safety rights, such as by
refusing unsafe work or contacting the government about
unsafe work conditions. And in Ontario, reprisals are getting
more attention than ever since the passing of Bill 160, which is
intended to make it easier for workers to bring reprisal claims. In
addition, under the Canadian Criminal Code, it’s illegal to take or
threaten adverse action—that is, fire, discipline, suspend, penalize,
intimidate or coerce—against a worker for “whistleblowing,”
which includes giving information to a “person whose duties
include the enforcement of federal or provincial law.” So reporting
an OHS violation to the Ministry of Labour is protected by criminal
law. As a result, disciplining workers in retaliation for blowing the
whistle on the company or exercising their safety rights can land
the company in hot water. A BC employer learned this lesson the
hard way.
77 Remind workers that they’re not only allowed but also
required to report violations of OHS, environmental and
other laws to a supervisor or company official;
77 Require supervisors and managers to keep an “open-door”
policy and encourage workers to come forward;
77 Require supervisors and managers who receive complaints
to investigate them and refer them to the appropriate
person or body if they appear valid;
77 Offer to maintain the anonymity of workers who complain
but encourage them to provide their names for the purpose
of follow-up investigation; and
77 State that anybody who violates the non-retaliation policy
will be disciplined.
BC Employer Retaliated Against Worker for
Requesting PPE
An employer in BC required its paramedics to wear a respirator
for which they had to be clean-shaven. A worker asked for an
accommodation, claiming that he had a skin condition that was
irritated by frequent shaving. Instead of letting him use a different
respirator, the employer put him on short-term leave and later
suspended him for making a “frivolous” accommodation request.
The WCAT concluded that the employer had disciplined the
worker for exercising a right under the OHS law to appropriate
PPE, which the employer was required to provide. And a BC
court agreed [Emergency and Health Services Commission v.
Wheatley].
SOLUTION: Implement a Non-Retaliation Policy
Given that the consequences of retaliating against a worker can
include hefty fines and even jail sentences, it’s important that
everyone in the company understand that reprisals are forbidden.
One of the most important ways you can manage your company’s
liability risks is to establish a clearly worded company policy that
encourages the exercising of safety rights and reporting of safety
concerns and reassures workers that you won’t retaliate against
them for doing so. Your non-retaliation policy should:
77 State your company’s commitment to complying with the
law and maintaining high standards of integrity;
MODEL NON-RETALIATION POLICY:
At the Insider’s online partner site, www.OHSInsider.com, you
can download a Model Non-Retaliation Policy that you can
adapt for use in your workplace.
Insider Says: Workers are also usually protected from discipline
for exercising their rights under employment standards laws and
for reporting violations of environmental laws. For example, a
worker for a chemical waste recycling and disposal company was
fired after he disclosed concerns he had about the company’s
disposal of its chemical waste and accidental spills to the MOE, a
local environmental group and the media. He sued the company
under the whistleblower protections of ON’s EPA. The court ruled
that the worker’s termination was “precisely the kind of employer
reaction” from which the law was designed to protect workers
[Marshall v. Varnicolor Chemical Ltd.].
SHOW YOUR LAWYER
Emergency and Health Services Commission v. Wheatley,
[2010] BCSC 1769 (CanLII), Dec. 9, 2010
Marshall v. Varnicolor Chemical Ltd., [1991] OLRB Rep. May
711, File No. 2423-90-EP, May 30, 1991
For more safety compliance advice, visit us on the web at www.OHSInsider.com