If there’s an accident at your workplace, your first instinct might be to clean up the mess and get operations back on track as soon as possible. This is especially true if the accident appears minor and your workplace is a store, restaurant, hospital or other establishment frequented by members of the public. Unfortunately, immediate cleanups can get you into big trouble. That’s because the OHS laws of every province impose a duty not to disturb the scene of an accident until a health and safety inspector looks it over and gives the all-clear. True, you can move the wreckage or clean up messes to prevent further injuries or to protect valuable equipment. But these exceptions don’t always apply. In fact, though, you may have some room to clean up right away even if life, limb or expensive machinery isn’t at stake. Here’s a look at a real case from Ontario involving a company in this situation. The left side shows what the company actually did; the right shows how it should have handled the situation.
WRONG WAY–WHAT THE COMPANY ACTUALLY DID
FACTS
A waitress at an Ontario restaurant slips and falls while carrying a tray full of food. It’s right in the middle of lunchtime and the restaurant manager is feeling a lot of pressure. He assumes the waitress will be fine and orders the mess cleaned up immediately. It turns out that the waitress has suffered a hairline fracture of the leg. The restaurant doesn’t report the injury to the Ministry of Labour (MOL) as required by Ontario OHS law. The MOL learns of the accident a few days later. But since all of the evidence has been removed, it can’t investigate.
OUTCOME
The restaurant is charged and convicted of failing to preserve the accident scene and fined $20,000. The restaurant is fined another $20,000 for not reporting the accident to the MOL [R. v. Famz Foods Ltd., Unreported Decision of the Ont. Ct. (Prov. Div.) (Reported in MOL News Release, May 1, 1998)].
RIGHT WAY—WHAT THE COMPANY SHOULD HAVE DONE
FACTS
The same accident occurs. The restaurant manager, still feeling the pressure to restore order and assuming that the waitress is okay, orders the area temporarily blocked off. He immediately calls the MOL regional office (the number is posted next to the phone) and describes what happened. The MOL says it will take at least 90 minutes for an inspector to arrive. The manager calmly explains that he has a restaurant to run and asks for permission to clean up the mess without waiting for the inspector. He offers to take photos of the accident scene (a manager this savvy would probably think to keep a Polaroid or digital camera on hand).
OUTCOME
Three different OHS lawyers–one from Alberta, one from BC and one from Ontario—confirmed that OHS officers tend to be cooperative and would likely agree to such request. But they add one important piece of advice: Get written confirmation of your conversation. Use the form below to do this.
Certain workplace incidents must be reported to government authorities. But many companies and safety coordinators aren’t familiar with their incident reporting obligations. As a result, they make mistakes that expose the company to the risk of prosecution, fines and other penalties. This article is designed to help you avoid liability for incident reporting violations. We’ll tell you what types of safety incidents the OHS laws require employers to report. We’ll also tell you how quickly you must report such incidents, to whom you must give the report and what information the report should include. And there’s a chart below spelling out the types of safety incidents each province and territory requires employers to report.
Defining Our Terms
We are aware of the controversy in the safety profession over the uses of the terms “incident” and “accident.” Although there are merits to both arguments, the Insider’s policy is to use the word “incident.” Accordingly, in this article, we use the term “incident” to refer to any breakdown in the OHS system, including, but not limited to, those in which a worker or other person at the workplace suffers an illness or injury. So, for example, an incident can include the collapse of a pile of material or the mechanical failure of a piece of equipment in which nobody is injured. However, we also want to note that many provinces use the term “accident” in their OHS laws. So although we’ll stick to “incident” in the body of the article, the chart below uses the terminology from the OHS law of the particular province whose law is being summarized. We’ll also use the word “accident” in the article when describing laws from jurisdictions that use the term “accident.”
The term “reporting” in this story refers to the obligation to report an incident to a governmental authority, such as the OHS regulatory agency. The article doesn’t address employers’ obligation to report incidents to non-governmental groups, such as the JHSC, the union or an insurance company. Nor does it address employers’ legal duty to report injuries or illnesses to the province’s workers’ compensation board.
What the Law Says
Incident reporting is important because it allows government officials to monitor companies’ safety performance and enforce the laws against violators more effectively. It also lets government track the types and frequency of incidents to identify patterns and determine the need for additional regulation, guidelines on how to comply with current regulations or stepped-up enforcement. Consequently, every province’s and territory’s OHS law requires employers to report some types of incidents to government authorities. In general, incident reporting obligations are contained in one of three places:
1. The OHS Act
Six jurisdictions—AB, NB, NS, PE, QC and YT—include incident reporting requirements in their OHS acts. The obligation to report incidents is usually covered in the same section that requires an investigation to be conducted after an incident occurs. For example, Sec. 30 (Injuries and Accidents) of the Yukon OHS Act:
2. The OHS Regulations
Five jurisdictions—Fed, MB, NWT, NU and SK—cover incident reporting requirements within their OHS regulations. As in the OHS acts, the incident reporting obligations are in the same section of the regulation that addresses incident investigations. For example, Part XV of the federal OHS Regs. covers hazardous occurrence investigation, recording and reporting. And the “Serious Incidents at Workplace” section of Manitoba’s Workplace Safety and Health Regs. covers:
3. Both Act and Regulations
The remaining three jurisdictions—BC, NL and ON—include incident reporting requirements in both their OHS acts and the related regulations:
POINTER: Some jurisdictions have additional incident reporting requirements for specific industries or types of workplaces. For example, Alberta has additional incident reporting requirements for mines. And in Manitoba, medical workplaces have special reporting requirements for needlestick injuries.
HOW TO COMPLY
How do you comply with incident reporting requirements? Although the specifics vary from jurisdiction to jurisdiction, in general, you must take four steps when an incident occurs:
Step #1: Determine If Incident Must Be Reported
Not every incident must be reported. In general, employers must report:
Incidents in which a person is killed or seriously injured. Every jurisdiction requires employers to report incidents involving fatalities. Some limit this requirement to incidents involving a worker’s death; others broaden the requirement to include the reporting of the death of any person. All jurisdictions also require employers to report incidents involving serious injuries. The jurisdictions either designate the specific kinds of injuries that must be reported or generally state that “serious injuries” must be reported and then provide a separate definition of “serious injury.” In either case, the types of injuries that typically have to be reported include those involving:
Designated kinds of serious incidents. There are also certain kinds of incidents that are considered so serious that employers must report them any time they occur—even if the actual incident doesn’t result in any injuries or illnesses. Such incidents include those involving:
Step #2: Report by Deadline
Once you’ve determined that the incident must be reported, make sure that you report it by the deadline spelled out in the OHS laws. In most jurisdictions, employers must report incidents either immediately or as soon as possible and typically no later than 24 hours. But deadlines may vary in some jurisdictions depending on the type or severity of the incident and/or injury. For example, in NWT and NU, employers must immediately report incidents involving a worker’s death and report incidents of a serious nature within 24 hours.
Step #3: Report Incident to Proper Authority
Employers must generally report safety incidents to a government safety official, such as a health and safety officer, director or deputy safety minister. Some jurisdictions, such as BC, NB and QC, require employers to report incidents to the workers’ compensation board or commission, which regulates workplace safety in the province.
Step #4: Include Required Information in Report
Include whatever information the law requires in your incident report. Caveat: Some jurisdictions don’t spell out exactly what information to include in an incident report. So what should you do if your company is located in one of those jurisdictions? Look at the requirements for jurisdictions that specifically address the content of incident reports. Although you’re not obligated to comply with their requirements, it’s likely that the information they require employers to provide will be the same information government safety officials in your jurisdiction will ask for when you report an incident. Ontario’s Industrial Establishment Regs. provide a good guide for the information you should be prepared to provide in an incident report:
Don’t volunteer information that you’re not required to include. Why? Because the information in the incident report could be used against the company in a prosecution for OHS violations. So don’t, for example, speculate on the cause of the incident or admit or assign blame for any failure or wrongdoing.
POINTER: Some jurisdictions have detailed requirements on the form of incident reports, such as whether they should be oral or written. You should generally report the incident to the appropriate officials by the fastest means possible, such as telephone. You may also be required to follow up with a written report.
Conclusion
When an incident occurs, the first thought that flashes into your mind is unlikely to be: “Gosh, I have to call government safety officials to let them know what happened.” You’ll obviously be focused on more urgent concerns, such as controlling and minimizing the damage done, getting medical attention for anyone who’s been injured, etc. And rightly so. But you can’t shirk your duty to report the incident to the appropriate government officials. If you do, you’ll expose the company to a possible OHS violation—and that’s in addition to any violations it may already face because of the incident itself.
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