Closing the Gap Between Denial and Reality on April 28

Every year on April 28 employers and workers are asked to remember the workers who have lost their lives in the course of their employment. Many employers shudder at this conscious awakening of a nicely suppressed fear and many workers’ do exactly the same.

April 28th is about waking up that shudder and letting it out. It is truly an excellent opportunity to close that gap between denial and reality.

Employers and workers are often lulled into complacency by an “accident-free” history. The price for the wake-up call is very high.

Emotional connection to the impact of workplace injuries and lives lost is a powerful motivator to enhance safety and promote your IRS.

What can you do?

  1. Go to the excellent and informative CCOHS site and either download or request some copies of the poster (above).  http://www.ccohs.ca/events/mourning/poster.html
  2. Ask your Joint Health and Safety Committee to select a few workers whose lives have been lost and ask them to do a brief presentation or find a moving video to present to the whole team on April 28th.
  3. If feasible, provide a brief period of time off to attend this presentation.
  4. Have them link this exercise to your overall health and safety goals.
  5. Employers can also encourage their JHSC and their team to participate in the Steps for Life – Walking for Victims of Workplace Tragedy on Sunday May 1, 2011 (in most communities).  http://www.stepsforlife.ca

Posted by Cézanne Charlebois

Does Bill 160 threaten worker safety

In a recent three-quarter page Toronto Star advertisement, the Canadian Union of Public Employees (CUPE) and the Ontario Compensation Employees Union (OCEU) have complained that the government’s proposed legislation, Bill 160, will endanger Ontario’s workers. Using some selective statistics, the joint advertisement claims that injuries and deaths have decreased since WSIB assumed responsibility for prevention in 1998.

It also claims that Bill 160 would represent an unfair tax load for some employers, apparently ignoring the present unequal burden of prevention costs.

The advertisement also suggests the Ministry of Labour – who is responsible for the Occupational Health and Safety Act – might not be the best place to locate prevention services. Noting that the whole point of the OHSA is to create workspaces that minimize or eliminate work injuries, it is not altogether easy to follow this logic.

It is hard to escape the fear of job losses at the WSIB as the main thrust behind this advertisement. That might be a legitimate and justifiable concern, but from our reading of the proposed legislation, we fail to see the peril that this legislation might introduce to the workplace.

It should be remembered that when Bill 99 created the WSIB, there was great fanfare in the announcement that the new Board would function as ‘an insurance company’. Responsibility for rehabilitation was off-loaded because that was not the proper job of an insurer, we were told. So it might seem to be ironic that when we are in the midst of rehabilitation services returning to the WSIB, they are losing prevention services – something else that never really seemed to jive with being ‘an insurance company’.

Posted by Paul Harris

Ontario files consolidated OHSA regulation governing confined spaces

On March 29, the government of Ontario filed amendments to Regulation 632/05 – which is not even scheduled to come into force until July 1, 2011. The newly introduced regulation (O. Reg. 95/11) consolidates the confined space requirements already found in other regulations into the upcoming Regulation 632/05. This affects specific rules already in effect for mines and mining plants, healthcare and residential facilities, industrial establishments, and construction projects.

However, the amended Regulation 632/05 maintains the distinction between confined spaces provisions for construction projects and those that apply in other workplaces.

Contact Workplace Health and Safety Network for any assistance required in preparing for the new rules.

Posted by Paul Harris

You need to be prepared even if you aren’t in Japan

It was Friday March 11 and I was sitting at a client’s workplace. The TV was on and tuned to CNN.  News feeds from Japan’s largest earthquake were the main topic and probably will be for for some weeks to come.

It made me realize just how fragile we are as human beings.  I just so happened to be working with my client who mentioned that May 1–7 is “Emergency Preparedness Week”.

Here is some helpful information I found.

Emergency Preparedness Week (EP Week) is an annual event that takes place each year during the first full week of May. This national event is coordinated by Public Safety Canada, in close collaboration with the provinces and territories and partners.

During Emergency Preparedness Week, activities are organized across Canada to raise awareness of the importance of having an emergency kit; making an emergency plan; and identifying risks in the region. These three simple steps can help Canadians prepare for all types of emergencies.

Every Province has specific guidelines to follow. For more information, visit www.emergencymanagementontario.ca/

BE PREPARED

Emergencies can happen at anytime and occur anywhere, often without warning. An emergency can force you to evacuate your neighbourhood or confine you to your home or workplace. It can leave you without basic services such as water, gas, electricity, or a working telephone. Are you prepared?

Although Ontario has effective emergency management legislation and programs, individuals and families play a vital role in preparing for times of crisis when emergency services and other government resources may be strained. It is important that individuals and families prepare to take care of themselves for at least three days.

Individuals and families are best able to cope when they have taken the time to prepare before an emergency happens. Follow the links below for addition information.

Watch our Be Prepared Video
Be Prepared at Home
Be Prepared at Work
Be Prepared in the Car
People with Disabilities/Special Needs
Be Prepared for Specific Emergencies

Mark Wood, CRSP

Appeal Court decides Independent Owner Operator Truck Drivers must be counted for meeting obligation to form JHSC

Section 9(2)(a) of the Occupational Health and Safety Act (“Act”) in Ontario requires a joint health and safety committee (“JHSC”) at a workplace at which 20 or more workers are “regularly employed”. The Court of Appeal for Ontario (“Court”) recently decided that this includes independent owner operator truck drivers, who are not “employees” but self-employed individuals.  United Independent Operators Limited (“UIOL”) is a load broker who operates out of Woodbridge Ontario. They have 11 office employees and anywhere from 30 to 140 independent owner operator truck drivers contracted to do hauling, depending on the time of the year.

The Ministry of Labour (“MOL”) became involved when a truck driver who was contracted by UIOL, was crushed between his truck and that of another UIOL truck driver, causing a broken pelvis and two broken legs. The accident occurred at the worksite of a UIOL customer.  The MOL formed the view that the UIOL contravened the Act by failing to establish and maintain a JHSC.  UIOL disputed the order because they only had 11 full time employees and the truck drivers were not in an employment relationship. Nevertheless, they complied with the order by establishing and maintaining a JHSC. Despite this, the MOL still laid charges for failing to have such a committee in July 2004, when the truck driver was injured.

In finding that the UIOL was not required to establish and maintain a JHSC, the trial judge relied heavily on a case called 526093 Ontario Inc. (c.o.b. Taxi Taxi), [2000] O.O.H.S.A.D. No. 98 (QL) (“Taxi Taxi”), which was a decision of the Ontario Labour Relations Board (“OLRB”). That OLRB decision determined that “regularly employed” was held to apply only to workers who have a traditional employment relationship. As might be expected, the MOL appealed.  The Ontario Court of Justice dismissed the Appeal and agreed with the conclusions found in the Taxi Taxi decision.  Once again, the MOL appealed.

The Court felt that the appeal court judge’s reasoning in limiting the meaning of “regularly employed” was a little too narrow and inconsistent with the objectives, purpose and legislative scheme of the Act.  Because the Act is a remedial, public welfare statute intended to guarantee a minimum level of protection for health and safety of workers, it is to be interpreted generously rather than narrowly.  Recall that the Act in Ontario defines a “worker” very broadly and this definition is not limited to traditional employees but any “person who performs work or supplies services for monetary compensation” and this includes both dependent and independent contractors. Truck drivers at UIOL are therefore “workers” within the meaning of the Act.

Next the Court reviewed whether or not the truck drivers were “regularly employed”.  These terms individually or combined are not defined in the Act.  When legislative provisions are not defined, Courts will often turn to the “ordinary” meanings of the words to be interpreted.  This is why the appeal court started with the dictionary definition of “employed”. However, the Court of Appeal took a critically different starting point. They began with the Act’s definition of “employer”, which like “worker” is very broad and inclusive. “Employer” is defined as “a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services”.  The Court of Appeal determined that the “Taxi Taxi” decision was wrongly decided and inconsistent with the definitions of “worker” and “employer” in the Act.  Finally, the Court also commented on the Brewers Retail case which dealt with employees at “dispersed” workplaces such as retail outlets and warehouse locations in Sarnia. The Court held that just as a dispersed workplace is not a reason to deny workers the benefit of a JHSC, neither is the absence of a “traditional” employment relationship.

This decision is very important for the truck driving industry in Ontario as well many others which regularly ‘employ’ (interpreted very broadly to be consistent with remedial and protective provisions of the Occupational Health and Safety Act) independent or dependent contractors.  All should establish and maintain JHSC’s in Ontario counting both their “traditionally employed employees” and also, all of their regularly contracted independent or dependent contractors or owner operators.

Link to the court decision.

Cézanne Charlebois, Charlebois Associates

Bill 160 will change health and safety delivery in Ontario

On March 3, 2011, Minister of Labour Charles Sousa introduced Bill 160, an act to amend the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).  At this point, it has only undergone First Reading so there may be a long road ahead before it might become law. Since Ontario is facing a provincial election in October this year, it might die on the order paper before an election ever occurs.

The gist of the Bill is to remove from the WSIA (and, thus, from the WSIB) oversight for health and safety certification and training.

There is also the intent to create a Prevention Council and a Chief Prevention Officer under the OHSA although details are scant about what those would be expected to accomplish.

One interesting proposed amendment in the WSIA would see WSIB paying construction workers for their time in regard to fulfilling the requirements to become certified under the OHSA – sort of compensation for learning how to help others not get injured and need compensation themselves.

Since those certification and training matters will no longer be provide by WSIB, does that mean employers can expect to see lower premiums?

Posted by Paul Harris

Daylight savings can be dangerous

Every year on the second Sunday in March, the majority of Canadians and Americans turn their clocks ahead an hour for a much welcomed extra hour of daylight, and in the process they sacrifice precious minutes of sleep. So goes the start of Daylight Saving Time (DST), which continues until the first Sunday in November.

Based on analysis of a U.S. Bureau of Labor Statistics database that tracks how Americans use their time, employees on average get 40 minutes less sleep on the Sunday night of the switch to DST. That loss of sleep may not seem like much but a study by Michigan State University researchers has found that the Monday following the switch to DST can be a particularly dangerous one. These researchers analyzed information from the U.S. National Institute of Occupational Safety and Health database of mining injuries from 1983-2006. Their research showed that there were 5.7% more workplace injuries and 67.6% more work days missed due to injuries on the first Monday following DST than on other days.

This research suggests that less sleep may increase both the incidence and severity of injuries. The increased danger isn’t just confined to the workplace. The Insurance Corporation of British Columbia (ICBC) reports a higher driving risk the first Monday after DST. According to statistics averaged from 2005-2009, on the Monday following the start of DST, car accidents increased 23%.

Perhaps not surprisingly, people have a much easier time adjusting to the switch back to standard time. The same rates of accident and injury do not occur on the Mondays in November when people gain an hour.

So, as the second Monday in March approaches, pay extra attention to employee schedules, sleep, and safety, because as the statistics show, the gains in daylight with DST may come at a human cost.

Tips to ease the effects of the switch to DST

Rest up: Go to bed earlier to get your usual amount of sleep so you can be well rested and alert.

Defer the dangerous: Schedule particularly hazardous work later in the week (where possible) after employees have had more time to adjust their sleep schedules.

Plan ahead: Give yourself extra time to drive to and from work, especially during the Monday commute, to avoid a potential accident.

Step up the safety: Take extra safety precautions and assign extra safety monitors on days following the switch to DST to help avoid potential workplace injuries before they occur.

More information

Read the study: Changing to Daylight Saving Time Cuts Into Sleep and Increases Workplace Injuries (PDF), American Psychological Association

Get smart driving tips for Daylight Saving Time, Insurance Corporation of British Columbia

Posted by Mark Wood

Due diligence for working alone

In a unique prosecution arising in Alberta, Garda Canada Security Corp. has pleaded guilty to a charge of failing to protect a female worker under the working alone provisions of the Alberta OHSA. Amongst other provisions, the Alberta OHSA requires that employers, at workplaces where workers will be performing work alone, take measures to reduce risks or hazards to workers. Working alone legislation exists in the OHS legislation of many provinces, in addition to workplace violence-related obligations to assess risks and take preventive measures.

Ontario does not currently have working alone-related provisions in the OHSA, although the general duty clause obligates employers to take every precaution reasonable for the protection of workers.

In the Garda Canada Security case, a female security guard asked to perform overnight security duties at a construction project was viciously sexually assaulted while working alone. The assault resulted in a criminal conviction against an individual who accessed the site. Garda was also prosecuted under OHS working alone provisions. On February 22, 2011, Garda entered a guilty plea under the Alberta OHSA. The corporation will be formally sentenced March 31, 2011, but has agreed to a proposed penalty of $90,000, which will include a fine and contribution the Alberta Construction Safety Association.

Whether or not specific working alone provisions exist, Ontario employers must be mindful that reasonable precautions for the protection of workers must be taken, and compliance orders or prosecution can occur for failing to meet established standards for reasonable precautions. OHS enforcers in all jurisdictions will be looking closely at whether employers are taking working alone-related precautions after this conviction.

Posted by Cheryl Edwards

Potential changes to workplace safety In Ontario

In late December, 2010, a 10-person Expert Advisory Panel on Occupational Health And Safety released a wide-ranging report recommending significant changes to the OHS system in Ontario. Amongst the recommendations, many of which are expected to result in structural changes to the OHS system or amendments to OHS legislation in the next year are that:
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  • the government create a new prevention organization to focus the OHS system, increase available information to the employer community, reward and accredit positive health and safety systems by employers;
  • mandatory training for new workers, supervisors, health and safety representatives be required;
  • enforcement be more stringent for businesses that engage in “serious and willful” contraventions;
  • changes to procedures for worker complaints of reprisal, or adverse employer action when they report a health and safety concern, and that prosecutions for reprisals occur;
  • mandatory fall protection training be required;
  • administrative monetary penalties be imposed by tribunals, in addition to court-imposed fines.

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For the complete Heenan Blaikie OHS Group analysis of potential future changes, READ MORE.

Posted by Cheryl Edwards