Workplace Safety and Health Laws
Learning Objectives
- Understand employer and employee obligations in regards to Occupational Health and Safety.
- Be able to explain the impact of non compliance.
- Be able to explain health concerns that can affect employees at work.
While workplace safety is the responsibility of everyone in the organization, HR professionals play a key role in developing standards, ensuring Occupational Healthy and Safety (OHS) laws are followed, and tracking workplace accidents. Health and safety is an important component of any Human Resource Management (HRM) strategic plan.
Rules and Regulations
What does the law say?
In Canada, the Canadian Labour Code, in particular, the Canadian Occupational Health and Safety Regulations, describe the provisions regarding employer and employee responsibilities.
Health and Safety is both a federal and provincial responsibility in Canada. In essence, Health Canada contributes to OHS issues by coordinating the Workplace Hazardous Materials Information System and by monitoring workplace radiation exposure. Health Canada also provides employee assistance services and occupational health services to federal employees.
Approximately 6% of the Canadian workforce falls under the OH&S jurisdiction of the federal government. The remaining 94% of Canadian workers fall under the legislation of the province or territory where they work.
In Ontario, the Occupational Health and Safety Act, dictates the best practices and steps to follow for both management and employees.
While each has its own role, the Ministry of Labour, Training and Skills Development, the Workplace Safety and Insurance Board (WSIB) and other Health partners all work together to support occupational health and safety in Ontario.
In matters of prevention, the Ministry of Labour, Training and Skills Development is responsible for monitoring compliance with the OHSA in ensuring that workplaces meet occupational health and safety requirements.
COVID-19 and its implications on Occupational Health and Safety
In the beginning of the COVID-19 pandemic it became clear that there was a lack of awareness of the safety measures necessary to protect individuals. The situation at a Quebec nursing home demonstrated the importance of understanding the risks in order to keep the workplace safe.
Responsibilities for Occupational, Health and Safety
Respecting the governing laws and how incidents and accidents will be reported should be facilitated by the HR professional. Although HR employees may not know the chemical makeup of the materials used or the exact details of every job function, they are responsible for facilitating the process to ensure that reporting is done timely and accurately.
In order for a company to ensure a safe working environment, every single person in the organization has a part to play. The company is tasked with ensuring that the environment is safe, but employees are responsible to know their rights and to adhere to the guidelines. Let’s explore the specific rights and responsibilities of each.
What are the employer’s duties?
To exercise due diligence, an employer must implement a plan to identify possible workplace hazards and carry out the appropriate corrective action to prevent accidents or injuries arising from these hazards.
Due Diligence: reasonable steps taken in order to satisfy a legal requirement
In accordance with the OHSA, employers have certain responsibilities. They include:
| General Responsibilities | Specific Responsibilities |
|---|---|
| Take all reasonable precautions to protect the health and safety of workers | Comply with all regulations made under OHSA |
| Ensure that equipment, materials and protective equipment are maintained in good condition | Develop and implement an occupational health and safety program and policy |
| Provide information, instruction and supervision to protect worker health and safety | Post a copy of OHSA in the workplace; and any explanatory material prepared by the Ministry of Labour in the workplace |
| Co-operate with the Joint Health and Safety Committee (JHSC). | Provide health and safety reports to the JHSC. |
A company’s Joint Health and Safety committee is comprised of representatives from the organization and is responsible for:
- Advising employers
- Creating a non-adversarial climate
- Investigating accidents
- Training others in the OHS obligations
What are the employee’s duties?
Employees are an important part of the safety culture within an organization. They have a responsibility to positively contribute to the safety culture within an organization by protecting their own health and safety, and that of co-workers which includes the wearing protective clothing and equipment, and reporting safety issues.
They also have three key rights in accordance with the OHSA:
- Right to know about workplace hazards
- Right to refuse unsafe work
- Right to participate in the OHS program
As discussed in the first video for this chapter, employees who exercise these rights are protected under the OHSA.
Record keeping and tracking incidents
The purpose of record keeping does not imply that the employee or the company is at fault for an illness or injury. In addition, just because a record is kept doesn’t mean the employee will be eligible for worker’s compensation. The record-keeping aspect normally refers to the keeping of incidence rates, or the number of illnesses or injuries per one hundred full-time employees per year, as calculated by the following formula:
Two hundred thousand is the standard figure used, as it represents one hundred full-time employees who work forty hours per week for fifty weeks per year. An HR professional can then use this data and compare it to other companies in the same industry to see how its business is meeting safety standards compared with other businesses. This calculation provides comparable information, no matter the size of the company. If the incidence rate is higher than the average, the HR professional might consider developing training surrounding safety in the workplace.
Liabilities
Can a company ever be legally responsible for H&S violations?
Yes it can, due to the Westray Law or Bill C-45.
Westray Law or former Bill C-45
The Westray Law, former Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations), came into force on March 31, 2004. It modernized the criminal law’s approach for establishing the criminal liability of corporations for workplace deaths and injuries. Specifically, it:
- established rules for attributing criminal liability to organizations, including corporations, for the acts of their representatives
- established a legal duty for all persons directing the work of others to take reasonable steps to ensure the safety of workers and the public
- set out factors that a court must consider when sentencing an organization
- provided conditions of probation that a court may impose on an organization
An organization can be held criminally liable if:
- a representative or representatives of the organization acting within the scope of their authority were a party to the offence; and,
- a senior officer responsible for the aspect of the organization’s activities relevant to the offence, departed markedly from the standard of care that could reasonably be expected to prevent the representative from being a party to the offence.
- a senior officer acting within the scope of authority was a party to the offence; or,
- the senior officer had the mens rea for the offence, was acting within the scope of authority and directed the work of other representatives to perform the act element of the offence; or,
- the senior officer did not take reasonable measures to stop the commission of the offence by a representative.
Section 217.1 of the Criminal Code creates an occupational health and safety duty for all organizations and individuals who direct the work of others in Canada. It requires all organizations and individuals who undertake or have the authority to direct how others work or perform a task, to take all reasonable steps to prevent bodily harm to the person performing the work or task, and to any other person.
Some real life examples of Westray Law
Westray , Paul Cowan, provided by the National Film Board of Canada
On March 17, 2008 a paving company (Transpave) was charged and convicted of criminal negligence and fined $100,000 in the death of an employee, plus a $10,000 victim surcharge.
On May 17, 2007, Mark Hritchuk, a Service Manager at a LaSalle, Quebec auto dealership was charged with criminal negligence after one of his employees caught on fire while using a makeshift fuel pump that had gone unrepaired and broken for several years. Mr. Daoust, a 22 year employee with the company, was engulfed in flames after a spark ignited fuel which had spilled on him, while he attempted to fill the gas tank of a vehicle whose fuel gage had broken and needed repairing. The employee survived but received third degree burns to 35% of his body. The case was brought before a court of inquiry on March 10, 2009. The case went to court in March 2012. Mr Hritchuk pleaded guilty of unlawfully causing bodily harm.
For more details see: Westray Bill (Bill C-45) – Overview – Canadian Centre for Occupational Health and Safety
Main purpose of worker compensation
It is important to note that the main intent of the worker’s compensation is to ensure that the employee return to his/her original job.
However, if the employee cannot return to his job due to permanent injuries, there are four options available:
- Cash payouts (for permanent disability)
- Wage loss payments (if worker can no longer earn as much)
- Medical aid
- Vocational rehabilitation
2“Emergency Planning and Community Right-to-Know Act (EPCRA),” United States Environmental Protection Agency, accessed April 15, 2011, http://www.epa.gov/epahome/r2k.htm.
3“OSHA Cites Allentown Soft Drink Company,” NewsWire.com, August 4, 2011, accessed August 21, 2011, http://www.mmdnewswire.com/us-labor-departmen-57793.html.
4“$378,620 in Fines Issued for Willful Violations,” Occupational Health and Safety, July 31, 2011, accessed August 21, 2011, http://ohsonline.com/articles/2011/07/31/378620-in-fines-issued-to-wisconsin-wood-firm-for-willful-violations.aspx? admgarea=news.
5“PepsiCo Annual Report,” accessed September 15, 2011, http://www.pepsico.com/Download/PepsiCo_Annual_Report_2010_Full_Annual_Report.pdf.
References
Churchill, C., “OSHA Finds Violations at Queensbury Retailer,” Union Times, August 8, 2011, accessed August 21, 2011, http://www.timesunion.com/business/article/OSHA-finds-violations-at-Queensbury-retailer-1779404.php.
Gulliver, D., “Employees Not Always Safe in Model Workplaces,” Florida Center for Investigative Reporting, July 22, 2011, KitchenAid Mixer Review, accessed August 21, 2011, http://kitchenaidmixereview.com/2011/07/22/employees-not-always-safe-in-model-workplaces/.
Hamby, C., “Model Workforce Not Always Safe,” Massachusetts Coalition for Occupational Safety and Health, July 7, 2011, accessed August 21, 2011, http://www.masscosh.org/node/721.
Just-drinks editorial team, “US: Tropicana in Safety Hazards Payout,” just-drinks, April 18, 2006, accessed August 21, 2011, http://www.just-drinks.com/news/tropicana-in-safety-hazards-payout_id86183.aspx.
