13.1 Workplace Safety and Health Laws
Learning Objectives
- Understand employer and employee obligations in regards to occupational health and safety (H&S)
- Be able to explain the impact of non compliance in H&S
- Be able to explain health concerns that can affect employees at work.
Workplace safety is the responsibility of everyone in the organization. HR professionals and managers, however, play a large role in developing standards, making sure occupational healthy and safety laws are followed, and tracking workplace accidents. Health and safety is a key component of any human resource management (HRM) strategic plan.
9.1 Rules and Regulations
What does the law say?
In Canada, the Canadian Labour Code, in particular, the Canadian Occupational Health and Safety Regulations, have provisions regarding what employer’s and employee’s responsibilities are.
Health and Safety is both a federal and provincial responsibility in Canada. In essence, Health Canada contributes to occupational health and safety (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 Quebec, the Commission des Normes, de l’équité, de la santé et de la sécurité du travail, CNESST, dictates the best practices and steps to follow for both management and employees.
According to the latest statistics from the CNESST dated from 2018, 228 employees lost their lives during a work related accident or illness. There were 91,711 employees who were injured in the workplace which can be equivalent to 251 accidents per day or 1 accident every six minutes!
What is the CNESST’s role in Québec?
- The CNESST offers victims of work-related accidents or occupational diseases financial support, along with the medical and rehabilitation assistance necessary to enable a return to work.
- The CNESST benefits employers who fund the system through the payment of premiums (assessments) by helping them to ensure a healthier, hazard-free workplace.
- The CNESST is responsible for applying the two main laws governing the rights and obligations of workers and employers with regard to occupational health and safety.
This is why it is essential to advise the CSNESST the moment you get hurt in the workplace so that the process of reimbursement and claim can commence. It is the EMPLOYEE‘s responsibility to advise CNESST of the accident or health injury that occurred at the workplace and to get the process started.
9.2 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 Personal Protective Equipment that needs to be used in the workplace. One area that was strongly hit was the CHSLD, the Quebec nursing homes.
How can the CNESST help in these situations?
In matters of prevention, it is responsible, in particular, for monitoring compliance with the Act respecting occupational health and safety and its regulations and for ensuring that workplaces meet occupational health and safety requirements.
The CNESST is playing a leading role in preventing the spread of COVID-19 and is working closely with the public health department on a daily basis.
From the outset, inspectors were deployed throughout Québec to help workplaces implement adequate occupational health and safety measures.
The inspectors take action, particularly in workplaces where employees have exercised their right to refuse to work under the Act respecting occupational health and safety (AOHS), where complaints have been filed or where serious industrial accidents have taken place. They are authorized to verify compliance with the AOHS and regulations and, if necessary, demand that unsafe situations be rectified. Thus, they can intervene to check whether the employer has put in place the preventive measures required to protect the health and safety of workers. For example, between March 13 and August 9, 2020, they performed over 9,152 interventions regarding COVID-19, particularly following 2,387 complaints and 25 rights to refuse work exercised in accordance with the AOHS and related to COVID-19.
Inspectors also provide support, responding to concerns and providing workplaces with information, in particular on the obligations of employers and workers concerning the preventive measures to be put in place to reduce COVID-19-related biological risks that could affect the health of workers.
To help workplaces implement adequate occupational health and safety measures, the CNESST has developed awareness and information tools. A COVID-19 toolkit is now available on its website. It includes several COVID-19 sanitation standards guides, quick reference guides, checklists and a poster summarizing the preventive measures to put in place. These tools were developed by the CNESST in collaboration with employer and labour representatives, and in conjunction with Direction générale de la Santé publique and Institut national en santé publique du Québec (INSPQ) to address the concerns of workplaces in various industries regarding the measures to be put in place to prevent the spread of the virus https://www.cnesst.gouv.qc.ca/salle-de-presse/covid-19-info-en/Pages/toolkit.aspx.
A mobile app on the measures to be implemented to avoid the spread of COVID-19 is now available on Google Play or App Store. This scalable app is meant to be an essential awareness tool to accompany and support employers and workers in the continuity of operations of Québec businesses. Its goal is to assist them in compliance with the sanitary instructions of the Direction de la santé publique. Free and easy to consult, this mobile app is accessible everywhere at any time.
The CNESST created teams with the aim of promoting prevention. Thus, nearly 1,000 prevention promotion officers coming from several departments and bodies are deployed in the work environments to inform employers and workers and raise their awareness about workplace sanitary standards to be implemented to reduce and control the spread of COVID-19.
To start the movement to fight COVID-19 in the workplace, CNESST invites all workplaces to sign a charter of commitment (french only) to undertake the actions required to reduce the risk of the spread of this virus. To date, the Minister of Labour, Employment and Social Solidarity, the Chair of the Board of Directors and Chief Executive Officer of the CNESST and the National Director of Public Health and Assistant Deputy Minister, Ministère de la Santé et des Services sociaux and all members of the joint board of directors of the CNESST have signed this charter of commitment.
Moreover, in the event of a work-related injury, the CNESST will compensate victims of employment injuries and see to their rehabilitation. Here is a list of Q&A that CNESST has published to help employers.
9.3 Human Resource and 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 right and to adhere to the guidelines. Let’s explore the specific rights and responsibilities of each.
What are the employer’s duties?
The employer is responsible to:
- Provide a hazard-free workplace
- Comply with regulation
- Take every reasonable precaution to ensure employee Health and Safety (H&S)
… including these specific duties:
- Inform employees about H & S requirements
- Investigate accidents and keep records
- Compile annual summary of work injuries & illnesses
- Report accidents that cause injuries and diseases
- Ensure supervisors are familiar with the work and hazard
- Provide H & S training
It is the supervisor of the given department who:
- Advises employees of potential hazard
- Ensures workers wear safety equipment, devices, or clothing
- Provides written instructions about H & S
- Takes every reasonable precaution to guarantee H & S of workers
Some companies may also have a Joint Health and Safety committee who is responsible for:
- Advising employers
- Creating a non-adversarial climate
- Investigating accidents
- Training others in H & S obligations
What are the employee’s duties?
- Comply with acts and regulations
- Report hazardous conditions or defective equipment
- Follow H & S rules and regulations
-
Request and receive info about health & safety conditions
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Refuse unsafe work (with exceptions)
Record keeping and tracking incidents
The purpose of the 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:
incidence rate=number of injuries and illness × 200,000 / total hours worked by all employees in the period
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.
9.4 Liabilities
Can a company ever be legally responsible for H&S violations?
Yes it can, due to the Westray Law or the 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
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.
https://www.ccohs.ca/oshanswers/legisl/billc45.html
9.5 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.
1“Workplace Injuries and Illnesses: 2009,” Bureau of Labor Statistics, US Department of Labor, news release, October 21, 2010, accessed April 14, 2011, http://www.bls.gov/news.release/archives/osh_10212010.pdf.
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.
