A Year of Evolution, Not Revolution
At first blush, 2007 was pretty uneventful. Although a few new laws and regulations were adopted, none broke new ground. And while OHS prosecutions and fines continued to increase across the country, 2007 won’t be remembered for any blockbuster court rulings. Neither of the two cases we were following when the year began—the Nova Scotia OHS prosecution against a company safety coordinator and the C-45 prosecution against a Québec corporation—delivered the expected oomph.
But the absence of headlines belies the significance of the compliance year. Dramatic changes are taking place in OHS. But the changes are evolutionary, not revolutionary. So they’re harder to perceive. Even so, what we’re witnessing is a transformation in OHS compliance and practice. The transformation didn’t start in 2007 and it won’t end in 2007. But the biggest story of the year is the continuation of the transformation.
Continuing our annual tradition, the Insider would like to step back and offer some perspective on the major compliance stories of the year. We’ve also handed out our awards for accomplishments, both positive and dubious.
THE 4 BIGGEST STORIES OF 2007
1. More Regulation of Nontraditional Hazards
The field of workplace safety came about as a byproduct of the industrial revolution and reflects the need to protect workers against hazards in their work environment. The name of the game was controlling physical and mechanical threats, such as machinery, chemicals, electricity and fall hazards. Addressing these traditional hazards is still the centerpiece of an OHS program. But the very use of the term “OHS” is evidence of how the field has changed. Adding the “H” (for health) to the “O” and “S” reflects the understanding that protecting workers requires more than was first thought.
The past five to seven years have witnessed the enactment of new regulations to protect workers against hazards that the initial workplace safety laws didn’t cover. The pace of regulation has varied by province. But in 2007, there was a noticeable acceleration in the trend of extending OHS laws to newly recognized hazards, such as:
Workplace violence. In 2007, no fewer than five jurisdictions adopted rules requiring employers to protect workers against violence in the workplace. MB, NS and PEI added workplace violence requirements to their OHS regulations. (The federal government was expected to do likewise in December.) The ON MOL published guidelines on workplace violence. In August, a joint MOL/WSIB initiative expanded the authority of ON government officials to intervene in cases of suspected violence. Meanwhile, SK, one of the first jurisdictions to protect workers from workplace violence and “harassment,” expanded its regulations to cover bullying and psychological harassment.
Ergonomic injuries. In 2007, three jurisdictions—FED, NL and ON—adopted or were expected to adopt by year’s end new ergonomics standards. ON even initiated an enforcement campaign called “Operation Pains & Strains” to verify that employers are adequately protecting workers against musculoskeletal disorders.
Secondhand smoke. Just five years ago, employers who banned smoking in the workplace risked liability for disability discrimination under human rights laws. Now it’s become illegal to tolerate workplace smoking. Most of Canada has banned indoor smoking in the workplace. In 2007, such bans were adopted or took effect in four of the lagging jurisdictions —AB, BC, FED and NT (although designated smoking rooms remain legal under federal law.)
Other hazards. In July, NL joined the provinces that have adopted or proposed specific OHS protections for workers who work alone or in isolation (AB, BC, MB, NB, NT, NU, QC and SK are the others).
The Lesson: Safety coordinators in all parts of Canada who haven’t already done so will soon have to expand their OHS programs to cover workplace violence, harassment and bullying, ergonomics, secondhand smoke and other nontraditional hazards.
2. The Changing Face of OHS Enforcement
For the past two years, we included the stepped-up pace of traditional OHS enforcement—OHS inspections, charges and fines, as opposed to prosecution of safety violations under C-45—as one of the biggest developments of the compliance year. That trend continued in 2007. OHS regulators remained busy, not only in the traditional enforcement hotbeds of AB, BC and ON, but also across Canada. 2007 will be remembered for some significant fines:
But the big story in enforcement this year wasn’t so much the volume of activity but the change in tactics that at least some provinces are starting to deploy:
Targeted enforcement. Historically, Canadian OHS officials have concentrated on responding to complaints and conducting random inspections. But, following a pattern exhibited by OSHA in the U.S., several jurisdictions—including AB, FED, MB and ON—have moved to targeted enforcement. The strategy is to concentrate on priority employers in particularly dangerous industries and employers with abnormally high illness and injury rates. The typical scheme involves notifying employers that they’re on the target list and will be subject to inspections and penalties if they don’t make improvements by a deadline.
Coordination with workers’ compensation. The other noticeable change in enforcement tactics involves using workers’ compensation to offer carrots and sticks. Carrots: Two provinces—AB and NL—now offer rebates on premiums to employers with below average accident and injury rates. (MB and ON launched similar programs on a pilot basis.) Sticks: In 2007, NS began imposing workers’ comp surcharges on employers with poor safety performance.
The Lesson: OHS enforcement will remain aggressive. But the new enforcement strategy will be a positive development for companies with excellent safety records because it will provide opportunities for relief from the risk of random inspection and rebates on workers’ comp premiums.
3. CSA Z1000-06 Finds Its Legs
One of last year’s biggest stories was the CSA’s publication of a national OHS management system (OHSMS) standard. In 2007, about 1,300 companies purchased the new CSA Z1000-06 standard. Unsurprisingly, most of these companies come from ON and AB. Meanwhile, standardization on the global front hit a snag. About 26 countries have adopted their own version of an ISO OHSMS standard. In 2007, advocates of standardization attempted to consolidate the various national standards into a global ISO OHSMS standard. But their efforts were rebuffed.
The Lesson: Globalization of ISO OHSMS standards won’t take place for at least three more years, which should make CSA Z1000-06 a more appealing option for Canadian companies.
4. C-45 Remains Dormant
C-45 didn’t make news in 2007. And that, in itself, is news. Last year at this time, criminal prosecutors in Québec became the first to lay criminal charges against a corporation under C-45. But the case is tied up in pre-trial discovery and won’t go to trial until later this year. And, contrary to some expectations, the Québec case didn’t open the floodgates on C-45 prosecutions against corporations.
On the other hand, in a case that received little national attention, the first C-45 case ever to proceed to trial resulted in a guilty verdict against a worker for a fatal traffic accident in which a co-worker was seriously injured. The worker was driving a company truck and smoking marijuana. A foreman was also riding in the vehicle but the Crown didn’t lay C-45 charges against him. Although the AB case represents something of a landmark, it’s not the breakthrough prosecution against a corporation that Canada has been expecting ever since C-45 took effect in March 2004.
The Lesson: C-45 isn’t exactly a paper tiger. But there’s still a clear reluctance on the part of criminal officials to use it to prosecute corporations and corporate officials for safety offences.
Conclusion
Here are some things we expect to happen in 2008:
Only time will tell which, if any, of these predictions prove accurate. But to the extent that our perceptions of the current transformation of OHS compliance are correct, the OHS field of the future will incorporate many, if not most of these predictions. In the meantime, all of us at the Insider wish all of you a safe and prosperous new year.
THE INSIDER OHS AWARDS FOR 2007
Here are the third annual Insider compliance awards for 2007:
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