2.4 Related Legislation
Occupational health and safety laws are part of a broader web of rules that regulate employment. Other laws passed by legislatures that impact OHS include fire and building codes, occupational-specific regulations, laws regulating hazardous materials (both in the workplace and the broader environment), employment (or labour) standards, human rights, and workers’ compensation schemes.
Hazardous Products
The federal Hazardous Products Act established the Workplace Hazardous Materials Information System (WHMIS). WHMIS protects workers by requiring employers to label hazardous materials and provide safety data sheets (SDS) which outline the hazards of the substance. This information assists workers in exercising their right to know about workplace hazards. Each of Canada’s 14 jurisdictions have included aspects of WHMIS in their own OHS systems.[1]
Governments also regulate aspects of certain occupations. For example, workers whose job requires them to handle or use explosives may be required to undertake specific training and hold a permit. Governments have also enacted environmental laws that regulate air, water, and soil pollution, waste management, and climate change. While environmental regulations are not normally considered a part of occupational health and safety, there is no clear boundary between environmental hazards and workplace hazards.
Employment Standards
All Canadian jurisdictions have enacted laws setting out the minimum terms and conditions of work. These employment standards (or labour standards) acts often outline maximum hours of work and required rest breaks. These requirements prevent workers from becoming overly tired, which increases the risk of injury. Employment standards legislation also usually contains limits on the employment of minors, reflecting their greater vulnerability to occupational injury due to their physical and intellectual immaturity. Such laws preclude employers from recovering the cost of customer theft from workers’ wages. As the vignette at the beginning of this chapter suggests, though, employment standards laws are unevenly enforced, thereby reducing their contribution to injury prevention.
Human Rights
It is important to consider the impact of human rights legislation on OHS. Human rights acts preclude discrimination on various grounds, such as gender, family status, age, sexual orientation, and disability. The duty to accommodate injured workers that flows from human rights legislation. In short, employers are expected to modify work and workplaces, up to the point of undue hardship for the employer, so as not to discriminate against workers with temporary or permanent disabilities.
Workers’ Compensation
Being injured on the job affects workers in many ways. Historically, injury has often meant poverty, because injured workers frequently can’t work. At the beginning of the 20th century, provincial governments enacted workers’ compensation systems to provide injured workers with wage-loss benefits, medical treatment, and vocational rehabilitation. Prior to the creation of workers’ compensation, workers injured on the job were forced to sue their employers for compensation. Workers often could not afford to sue, and if they did sue they rarely won, which meant injured workers often ended up financially dependent upon their families or charity. The unfairness of this system was a source of significant social instability, and governments enacted workers’ compensation laws to partly address workers’ needs and thereby stave off industrial and social conflict.[2] In exchange for immediate, predictable, and stable compensation, injured workers gave up their right to sue their employer for workplace injury. This exchange is often called the historic compromise.
The Ontario workers’ compensation system, which was Canada’s first, was based upon the recommendations of a 1913 Royal Commission on Workers’ Compensation headed by William Meredith.[3] The Meredith principles underlying workers’ compensation remain the basis for workers’ compensation in Canada:
- No fault: How the injury occurred is irrelevant. Compensation is paid on a no-fault basis and workers cannot sue their employer.
- Accident fund: The WCB maintains an accident fund to guarantee the availability of benefits over time.
- Collective liability: All employers pay premiums and thereby share the cost of injuries collectively.
- Independent administration: The WCB—which operates independently of employers, workers, and the state—administers the workers’ compensation system.
- Exclusivity: The WCB is the only provider of workers’ compensation. This differs from arrangements in some US states where multiple private insurers offer compensation. The WCB is also the final arbiter of all claims.
Every province and territory has established a WCB that operates under these principles. When workers experience a serious work-related injury (e.g., the worker requires medical aid or can’t go to work the next day), the worker, employer, and doctor are all required to report the injury to the WCB. In assessing whether an injured worker is eligible for benefits, the WCB uses the two-part “arises-and-occurs” test. To be compensable, an injury must be caused by an event arising out of, and occurring during the course of, employment.
Where it is not possible to determine if an injury arose or occurred, workers’ compensation legislation generally gives the benefit of the doubt to the injured worker. Some workers’ compensation systems also grant presumptive status to certain types of injury. Certain diseases, for example, are so closely linked with certain kinds of work (e.g., farming and farmer’s lung) that claims are presumed to have arisen and occurred unless there is evidence otherwise.
Once an injury has been found to be compensable, workers are eligible to receive wage-loss, medical, and vocational rehabilitation benefits. Wage-loss benefits provide financial compensation to workers whose income is reduced by an injury. The level of wage-loss benefit and when wage-loss benefits commence varies by jurisdiction, although rates are set so that workers ordinarily receive less than their regular wage. Injured workers can also receive medical and vocational rehabilitation benefits. Medical benefits cover the costs of treating an injury, thereby relieving workers and the taxpayer-funded health care system of these costs. Vocational rehabilitation benefits include programs designed to increase the probability of a worker returning to employment. When a worker dies as the result of a workplace injury, the worker’s dependents are eligible to receive fatality benefits, including funeral costs and wage-loss benefits.
While workers’ compensation entails significant benefits to injured workers, the administration of these benefits has come under heavy criticism. Injured workers often report that their interactions with the WCB—wherein workers’ claims are often met with skepticism and workers are sometimes surveilled—can be psychologically damaging.[4] Injured workers are also more likely to live in poverty.[5] In some jurisdictions, workers face having their wage-loss benefits reduced because the WCB deems them to be employable, even though they have been unable to find a job.[6] These concerns are often related to the way workers’ compensation is funded and, in particular, to the operation of experience-rating systems.
Employers fund workers’ compensation by paying premiums. Premiums are based upon an employer’s payroll multiplied by the assessment rate the WCB has set for the industry in which the employer operates. Typically premiums are expressed in the form of X dollars per $100 of payroll. Some provinces further modify individual employer’s premiums based upon the employer’s claims record. These experience-rating systems reward employers that have low claim costs and penalize employers that have high claim costs. As we saw in Chapter 1, experience rating is a controversial system. Linking claim costs to premium rebates does reduce the number and duration of claims, but it is unclear if this means an actual reduction in the number or severity of injuries or reflects employer gaming of the experience-rating system.[7] Gaming may include suppressing claims as well as disputing worker claims, thereby undermining the no-fault basis of workers’ compensation.
Many injured workers are able to perform productive work while they are recovering from injuries. Providing workers with an opportunity to return to work (RTW) by, for example, modifying their duties may help workers recover. The idea that return-to-work is rehabilitative is hotly contested. Less controversial is that RTW programs help employers minimize their claims costs.[8] Such programs also ensure that employers meet the duty to accommodate workers found in human rights legislation.
- You can learn more about WHMIS at http://whmis.org/ ↵
- Risk, R. (1983). This nuisance of litigation: The origins of workers’ compensation in Ontario. In D. Flaherty (Ed.), Essays in the history of Canadian law (Vol. 2, pp. 418–491). Toronto: University of Toronto Press. ↵
- The Meredith Report can be viewed at http://awcbc.org/wp-content/uploads/2013/12/meredith_report.pdf ↵
- Lippel, K. (2007). Workers describe the effect of the workers’ compensation process on their health: A Québec study. International Journal of Law and Psychiatry, 30, 427–443. ↵
- Ballantyne, P., Casey, R., O’Hagan, F., & Vienneau, P. (2016). Poverty status of worker compensation claimants with permanent impairments. Critical Public Health, 26(2), 173–190. doi: 10.1080/09581596.2015.1010485 ↵
- Barnetson, B. (2010). The political economy of workplace injury in Canada. Edmonton: Athabasca University Press. ↵
- Tompa, E., Hogg-Johnson, S., Amick, B., Wang, Y., Shen, E., Mustard, C., Robson, L., & Saunders, R. (2013). Financial incentives for experience rating in workers’ compensation: New evidence from a program change in Ontario, Canada. Journal of Occupational and Environmental Medicine, 55(3), 292–304. ↵
- Tompa et al. (2013). ↵
The interlocking set of laws that limit employers’ right to manage.
A national system that requires the labelling of hazardous materials.
Information about hazardous material handling that employers must provide under the Workplace Hazardous Materials Information System.
An act that sets out minimum terms and conditions of employment for a jurisdiction, such as maximum hours of work and required rest breaks. Sometimes called labour standards.
An act prohibiting discrimination on the basis of protected grounds (e.g., disability, age, gender, race).
Employers’ legal obligation to alter work, work practices, or the workplace to the point of undue hardship in order to allow workers with disabilities to perform meaningful work.
The system within a jurisdiction providing injured workers with wage-loss, vocational rehabilitation, medical, and fatality benefits.
One of the Meredith principles underlying workers’ compensation, stating that who caused the injury is not a factor in the awarding of compensation.
One of the Meredith principles underlying workers’ compensation, stating that the cost of injury is shared among all employers in an industry.
Instances where a workers’ injury is assumed to have arisen and occurred in the course of work unless proven otherwise.
Benefits paid by a workers’ compensation board to workers whose income is reduced by an injury.
Benefits paid by a workers’ compensation board to cover the costs of treating an injury, thereby relieving workers and the taxpayer-funded health care system of these costs.
Programs and other benefits provided by a workers’ compensation board to increase the probability of an injured worker returning to employment.
Benefits paid by a workers’ compensation board to the dependents of a worker who has died. These can include funeral costs and wage-loss benefits.
Behaviour whereby an employer maximizes the return it receives from the experience-rating system by means other than improving safety.
Programs designed to reintegrate injured workers into the workplace via practices such as modified work.
