Duties of Employers

Is Subway Air Subpar?

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According to a recently published report, the level of pollution to which workers are exposed in Toronto’s subway system (known as the TTC), is within acceptable occupational limits.  This finding comes from an extensive air quality study done by the TTC. The need for the study was prompted by a Health Canada report that ‘suggested that the particulate matter in Toronto’s system was 2.5 times higher than systems in Montreal and Vancouver’.

Click here to read about the pollutant findings in the TTC’s underground subway system.

While the results of the findings confirm that additional protective measures are not required for non-maintenance workers employed by the TTC, the fact remains that the air quality in the underground workplace does contain particulate matter. This is the combination of organic and inorganic materials such as dust, pollen, gasses and air-borne toxins that exist in varying levels in air, all the time. It is the level(s) within this combination that can become problematic and potentially dangerous within the workplace environment.

Given the results of the air quality study by the TTC, it seems reasonable that no additional interventions, such as Personal Protective Equipment (PPE) in the form of masks, are required to be provided by the employer to all employees. As noted in the report, there are designated workers within the TTC who do work in areas with high levels of pollutants and are part of its ‘respiratory regulation program’. This implies that the employer is already providing PPE, equipment and support for those working within unacceptable air quality levels.

However, individual reactions to levels of pollutants and other air quality contaminants vary. According to an information posting by the Canadian Centre for Occupational Health and Safety (CCOHS), ’not all people are affected with the same symptoms or to the same extent’ in response to poor air quality issues.

Click here to read the general air quality fact sheet posted by CCOHS.

If individual reactions to air quality issues vary, how can the employer provide a safe workplace for all employees, without allowing for or providing protections on an individualized basis? This may be a question that remains unanswered and may be cause for more safety uncertainty.

While the findings of the report may provide comfort for some breathing in the underground air of the TTC, it is unlikely that it provides respite for all.

Discussion Questions:

  1. How does poor air quality impact workers and workplaces?
  2. What types of protections can the TTC provide to its employees that go beyond ‘accepted’ occupational exposure limits?
  3. Do you agree or disagree with the union’s position that all subway employees should be allowed to wear respiratory masks? Explain your rationale.

Is it a health and safety inspection or investigation?

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For most, it is difficult to know the difference between a safety inspection and a workplace safety investigation. It is vital that all HR and safety professionals know the distinction between the two.

When a Ministry Safety Officer enters your place of business, do you always wonder what the purpose of their visit is? Is it an inspection or is it an investigation?

Cynthia Sefton, a legal partner with Aird & Berlis LLP in Toronto, explains the vital differences. “An inspection is not an investigation, although it can lead to one,” she says. “The inspector comes to see if there is compliance. The decision to investigate a possible offence comes later.”

Click here to read the complete article

Typically, safety inspections come first, with an investigation following the inspection if the safety officer deems it necessary. In addition, there may be certain events that trigger an investigation right away, such as a critical injury that occurs in the workplace as defined by legislation.

It’s fundamental to understand the concept of compliance and due diligence. All Occupational Health and Safety (OHS) legislation in Canada works on the principles of general duties, minimal standards and due diligence. All workplaces that are covered by OHS legislation must ensure they meet the minimal safety standard that is outlined in the legislation. Those standards must be reasonably achieved in all circumstances.

If you are not meeting the minimal standards you are by default not in compliance with the OHS legislation. The main purpose of ministry safety inspections is to identify if an organization complying. When they do that, the inspector can decide how to proceed.

Every year most provincial health and safety jurisdictions pick a combination of specific industries or safety hazards on which to focus. For example, the MOL of Ontario for 2019 have safety inspection blitzes in construction, health care and mining services planned.

Click here to read more about the Ontario safety blitzes

In addition to inspection blitzes, each jurisdiction gives its health and safety inspectors the power to write orders. There are different types of orders a health and safety inspector can issue. The three most common ones are: 1) stop work, 2) forthwith and 3) a compliance order.

Click here to read about the powers of a safety inspector in Ontario

HR and safety professionals have to be aware of the subtle differences between a safety inspection and a workplace safety investigation, as well as being aware of their rights and their responsibilities under their local OHS laws.  It is a large legal liability that is best addressed with a proactive safety program long before an inspector comes to visit for an inspection or an investigation.

Discussion Questions

Can you identify the powers of the safety inspectors in your jurisdiction?

Review under what circumstances an inspector in your jurisdiction will be required to conduct a workplace investigation.

Identify in your jurisdiction if the governmental safety department has identified any industry or topic specific safety blitzes.

 

 

The Deadliest Catch of All

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Tabor Chichakly/Shutterstock.

The start of lobster season, known as “Dumping Day,” is traditionally the last Monday in November. It’s the day fishers head out off the southern coast of Nova Scotia and set their traps for a potentially lucrative lobster haul.

It’s a way of life for many easterners, but it also comes with its inherent dangers out on the rough north Atlantic Ocean.

In 2015, a 53-year-old man died after going overboard in his vessel while setting traps, and in a separate incident, two other men went overboard doing the same thing, but were ultimately rescued.

It is always heartbreaking for the family, as well as the community, following a death of a worker.

Unfortunately, the sad reality is, it’s not unusual for fatalities to occur in the workplace in Canada.

According to a Globe and Mail report, the fishing industry is the deadliest sector of all occupations in Canada. It has almost 70 deaths per 100,000 workers (covering a period from 2011 to 2015), which is seven times higher than the fatality rates in construction.

This is unacceptable, and the fishing industry needs to take action to lower that rate.

Another article by the CBC sheds light on the discrepancy in workplace fatality statistics in Canada.

The Association of Workers’ Compensation Board of Canada has the official number at 1,000 deaths per year, but according to a study, the rate is much higher – almost 10,000 fatalities during that same time frame.

The lowball figure occurs because of the way that we collect statistics on workplace fatalities. Our reporting method is way too narrow and should be adjusted to reflect the real toll on workers lives.

What factors are affecting this under-reporting of fatalities in Canada? There are many factors, including:

  • Workplace fatalities where the worker is not covered by a provincial workers compensation system and therefore not counted
  • Fatalities occurring on farms may not be reported
  • Many deaths caused by vehicles may be categorized incorrectly.

HR and safety departments need to ensure that systems are in place that focus on safety prevention. They also need to make certain that their organization does not add one of their workers to the workplace fatality number.

Discussion Questions

What can industries due to help improve the collection of workplace fatality statistics?

What role should the federal and provincial governments play in reducing the number of workplace deaths in Canada?

 

To Test or Not to Test?

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With the upcoming legalization of marijuana in Canada, the increasing use of opioids, and the pervasive use of alcohol in our society, Canadian employers are intent on doing their due diligence to ensure workers are not impaired at work.

HR practitioners must keep abreast of changes happening in the Canadian employment-law arena. This is easier said than done—nothing is more confusing, or changing more rapidly, than rulings around the employer’s right to test employees for drugs and alcohol. Drug testing, workplace safety, and employee rights have been in at the centre of a number of legal battles for many years.

There are two competing principles in play in an ongoing legal battle between Suncor Energy and Unifor, the union that represents many of Suncor’s employees. Suncor believes it has a legal safety obligation to test employees for drugs and alcohol, saying that they have had 2200 safety incidents involving drugs and alcohol.

Suncor certainly does have a legal and moral duty to ensure the workplace is safe and free of hazards, including impaired employees. However, the union’s position, which is also valid, is that employees have the right to privacy, and that random drug testing violates that right.

Suncor won a September 2017 ruling that allows them to test employees for drugs and alcohol randomly.

Click here to learn more about the Suncor case.

However, in December 2017, just over two months after the ruling in Suncor’s favour, an Alberta Judge placed a temporary injunction preventing Suncor from carrying out random drug testingz

So, where do we stand on random drug testing in Canada now? It is very unclear. Currently, in Alberta, employers don’t seem to have the right to use random drug testing, even for safety-sensitive jobs. The story is different in Ontario, however, with the Ontario Superior Court ruling that random drug testing is legal.

Ontario Associate Chief Justice Frank Marrocco declared, in his decision concerning the Toronto Transit Commission, that, “public safety outweighs privacy concerns.”

Click here to read more about Chief Justice Marrocco’s decision.

So, there you have it, HR Professionals — there is no clear answer to the question concerning the conflict between rights of the employer   against the rights of the employee. What is the HR Professional to do, you ask? Stay aware, stay concerned, and keep up to date on employment court rulings.  These ruling can change rapidly.

 

Discussion Question:

Research policies in Canadian workplace and analyze them with respect to drug and alcohol testing. Is it a workplace requirement? When can the employer ask for drug/alcohol testing? Do any policies have a requirement for random drug and alcohol testing?

Understanding the Impact of Poor Health and Safety

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Picture this: You are a manager of a medium-size manufacturing company. The company is big enough to be considered a significant employer but small enough for you to have personal connections with all employees and some of their families.

It is 4:30 pm which is almost quitting time for the afternoon shift. You have just been called out to the shipping and receiving area. It is chaos. A large shelving unit has collapsed and it is clear there is a worker trapped beneath it who will not survive. It is traumatic for everyone to watch.

Once the initial first medical response has been implemented the ministry of labour arrives on site to do an inspection of the accident. Everything else is in limbo and the night shift workers have been called to cancel their shift.

Here is where it gets really difficult.

As you walk back to your office you ask the HR department to get the employee’s home phone number. The employee’s file is given to you. Everything moves in slow motion, you can smell the dust coming off the file, you take the file and immediately feel a sharp stinging, you are not sure if it is your hand or your heart. It is like a message is being sent to you, this moment, this call, will change your life forever.

As the direct supervisor you have been given the task of making the call to inform the employee’s spouse that her husband will not be coming home tonight or ever again. You pick up the phone and dial the number. A small voice answers, it is the employee’s daughter who has just been picked up from kindergarten. You ask to speak to her mother.

You know that little girl’s life has been changed forever! She may never even remember the sound of her father’s voice, the touch of his hand. Your eyes well up as you take a deep breath. You have no idea what you are going to say next,

“Stephanie, there has been an accident ….,” nothing more has to be said.

Stephanie knows that the last time she saw her husband was over their morning coffee together, the ritual which they have had since they were married.

Click here to read about the Association of Workers’ Compensation Boards of Canada

Recently, Canadian Electrocoating Ltd. pleaded guilty to a violation of the Ontario Health and Safety Act and was fined $175,000. This fine in no way represents the true cost of an employee fatality at work. Emotions, sadness and despair: these are the true costs of a workplace fatality. Nothing will ever be the same to anyone who knew or worked with the employee who was killed in the workplace.

Click here to read an article about the fine

Every occupational health and safety act in Canada outlines the duties and responsibilities of employers, supervisors and workers. All of these acts are clear that the employer is responsible and must be diligent in ensuring worker safety. Unfortunately, all stake holders fail in their duties and responsibilities at least 1000 times per year in Canada, resulting in these tragic workplace fatalities.

If you are a planning on becoming a Human Resources, Health and Safety professional or a supervisor, you must ask yourself, do I know my duties and responsibilities?

Most importantly, you must ask yourself, what do I have to do to ensure a safe workplace so I never have to make that call?

Discussion Questions:

  1. You have been hired in a manufacturing company that has a poorly developed safety program. You have asked to meet with the stakeholders: management, supervisors and union members to discuss the current obstacles to health and safety improvements in the plant.
  2. What types of obstacles do you anticipate from each of the stakeholders?
  3. What kind of support do you need from each stakeholder in order to change the safety program?