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WSIB and OHS for Employers in Ontario – February 2010

WSIB and OHS for Employers in Ontario – February 2010

OHS Updates

1. Occupational Exposure Limit in Ontario for 36 hazardous chemical substances such as polyvinyl chloride and ethanol. Employers may want to ensure that they are in compliance with these new limits by July 1, 2010.
Link: New OEL Exposure Limits

2. Violence & Harassment Prevention Policy (Ontario) effective June 15, 2010: After conducting a risk / hazard assessment that is relevant to your workplace you will be required to develop and post a policy and program to address these risks in exactly the same manner that you would with any other identified potential hazards. Employers should also become familiar with the signs of domestic violence which are most often not obvious. Victims will very rarely come forward with these private matters. There are many excellent organizations in the community from which you can obtain free information to inform your staff about domestic violence. It is important to note that domestic violence does not require actual physical violence. It is domestic violence if the relationship is characterized by power, control and intimidation. We have attached a draft policy for your convenience as a starting place for creating your own policy. We have left it in a Word Document format to save you time and allow you to modify according to the needs and risks of your workplace. Please feel free to contact us for assistance if you need it.

Link: Draft Violence & Harassment Prevention Policy

3. Internal Responsibility System (IRS) is the foundation of all OHS laws in Canada, but only specifically mentioned in the Occupational Health and Safety Act of Nova Scotia. In order for the IRS to truly become a “system” employers must first learn to use it as a tool, and then over time, it becomes integrated as a core value. Developing a strong IRS is an exceptionally effective method for reducing risks while improving productivity and the financial success of your organization. It also reduces the need for the External Responsibility System and reduces the number of injuries and accidents in the workplace. All of these increase profitability in the organization. Contact us if you want your team of managers and supervisors to get on the road to getting past compliance towards creating a business advantage through the IRS.

WSIB Updates

1. WSIB Teams: We now know about the new SIEF team in Hamilton and the Recurrence Team (in T.O. and rumoured to also be in Ottawa) who also deal with work disruptions and layoff situations. There is now new Appeal Implementation Teams scattered throughout the Province. This means that you could win an Appeal in London and yet a Case Manager in Sudbury could be implementing your decision by collecting all the necessary information and performing the calculations. It is almost paradoxical that the 2009 Stakeholder Consultations Report mentioned below speaks of “a great deal of misinformation among stakeholders” over the very programs and initiatives being funded at the WSIB when stakeholders were given almost no information about all of these new initiatives.

2. Report on Stakeholder Consultations: Has just been released. Not surprisingly Mr. Mahoney found no “silver bullets” to address the $11 billion dollar unfunded liability or the problems which haunt the WSIB. He did say that he was “encouraged to hear that the Meredith Principles remain strong”. Really? The “no fault” system appears to be slipping into a fault based system (eg. Fatality Claims, new SIEF teams mandate, CAD-7 Experience Rating), and collective employer liability by no stretch of the imagination ensures certainty of payments for injured workers or prevents potential bankruptcy for employers. It is also surprising that there was no mention in this report that stakeholders are frustrated with how long Prevention Services is taking to deliver timely and effective services. And apparently stakeholders did not mention the lack of “accountability” for decision making as a driver of success or failure within the organization. Are there truly any consequences when a Case Manager stubbornly holds onto his or her decision without regard for the evidence and this causes a profound impact on the sustainability of a company or the life of a worker? That kind of decision-making seriously undermines the financial accountability and value-added system that the WSIB is trying to achieve. And we also see in this report that the new SIEF team was “immediately installed as an administrative solution” in part, to address labour’s complaint that SIEF is not meeting its original goal and should be either modified or eliminated. Employer stakeholders argued that SIEF is a fairness issue and important component of experience rating. Apparently this new SIEF pilot project is intended to last for 3 very long years (and many Appeals). Finally, it is crystal clear that the financial base (employer’s premiums) is not keeping pace with the added responsibilities of the WSIB. So why must the WSIB cast such a wide net? OK, this rant is done (for now).

Link: 2009 Chair’s Consultation Report

3. WSIB Appeals: WSIB costs and surcharges are not like death and taxes. While it may seem that way, they are far from fixed, final and impossible to challenge. Employers should at least try to make the system that they fund accountable. There is always something that can be done to reduce your current WSIB costs while reducing your long term costs through prevention efforts. The Appeal process is essential for trying to obtain fair, objective, well-reasoned evidence based decisions. Your participation in the Appeals system lets both your employees and the WSIB know that you WILL hold them accountable. You certainly will not always win, but you will contribute to improving the system by making them reconsider their decisions. And you will feel better for not going down without a fight. Remember, it is only injuries that arise out of and in the course of employment that you should be paying for. If the accident/injury occurs at the workplace there is a presumption in law which says that it is presumed to have occurred in the course of employment “unless the contrary is shown”. Many times, the contrary can be shown! This is why we encourage employers to use THEIR Appeal system. You should not be paying for the entire life histories of your employees, the aging process, the personalities, the psychological histories and the stresses that they have in their lives. Nor should you be paying for the vast array of non-compensable health conditions that come from lifestyles and genetics. All of these can appear to look like they have occurred in the course of employment and may simply be rubber stamped as “entitlement allowed” under the NSDM. Sending in an Objection Letter does not mean that you HAVE to go to Appeals, it just keeps the door open for you. So go for it. If you would like a sample Objection Letter contact us.

4. OHS Employment Law Assistance: With new obligations for employers in preventing violence and harassment in the workplace, it may be helpful to remind employees of their on-line obligations. This protects them and you. We have attached a draft sample clause that you may want to use in creating your own. You can add this to your Email Use Policy, your Internet Use Policy or your Employee Handbook.

Link: Prohibiting Damaging “Content” on Social Networking Sites

Complimentary Breakfast Seminar and the Annual Todd Lecture in London:

1. Complimentary Breakfast Seminar: Wednesday March 31, 2010 (8am-10am)
Effective WSIB Cost Cutting & Disability Management: Unlocking the Secrets to Success. Link: More Information

2. The “Annual Todd Lecture”: Thursday May 20, 2010 (6-9pm) Chaucers in London (Presented by the South Western Ontario Labour Lawyers Association) Justice Todd Archibald will be the keynote speaker and the Honourable Senior Regional Justice Edward Ducharme will introduce Justice Archibald. The excellent text “Regulatory and Corporate Liability: From Due Diligence to Risk Management” will be on sale and is highly recommended for owners, the C-suite, OHS Management and WSIB Management teams in virtually every organization.

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