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.

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 can 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.

“Legislative Framework of Injury Prevention and Compensation” in Health and Safety in Canadian Workplaces by Jason Foster and Bob Barneston, published by AU Press is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, unless otherwise noted.