What Are an Employer’s Legal Obligations?
It might be hard to persuade management to invest resources to minimize ergonomic hazards at your workplace. After all, injuries caused by poor design, repetitive motion and excessive force or vibration—alternately called musculoskeletal, soft tissue or repetitive motion injuries (for simplicity’s sake, we’ll use the term musculoskeletal injuries or MSIs)—are, for want of a better term, less dramatic than other injuries. So they command less respect from a company’s corporate decision makers than, say, a fall injury or amputation. But dismissing MSIs is a major mistake. There are two compelling reasons that companies must pay serious attention to ergonomic hazards:
We’ll explain how the different provinces protect workers from MSIs and outline what they require you to do. We’ll also give you a worksheet that will help you assess the ergonomic hazards in your workplace. And there’s a chart here spelling out the ergonomics requirements in each province.
What the Law Says
All of the provinces and territories require employers to identify and protect workers from MSIs in the workplace. Across Canada, there are two regulatory approaches:
The 7 Direct Approach Jurisdictions
Five provinces—AB, BC, MB, QC and SK—specifically address the prevention of MSIs in their OHS regulations. Manitoba’s new MSI regulations went into effect on Feb. 1, 2007. NL is also revising its OHS regulations and is expected to include a new section specifically covering MSIs by the end of 2007. The substance of the ergonomic requirements varies among the direct approach provinces. But in general, they require employers to:
The MSI provisions in the OHS regulations of QC are particularly specific. They include special ergonomics measures covering work-related activities, such as handling loads and working on piles, as well as requirements on the proper height of workbenches, positioning of chairs and location of tools to reduce strain and fatigue. They also require employers to provide chairs and benches when appropriate and to give workers breaks for meals.
The federal government is the seventh jurisdiction that uses the direct approach. The Canada Labour Code requires employers to ensure that the machinery, equipment and tools used by workers meet prescribed ergonomic standards. It also requires federal employers to ensure that the workplace, work spaces and procedures meet prescribed ergonomic standards. Federal law doesn’t currently spell out what those ergonomic standards are, but the government has been working on developing such standards for a number of years. When they will finally be published is unclear.
Insider Says: Although NL and YT OHS regulations don’t specifically address MSIs, they include language that requires employers to let workers sit while working if they can do so without detriment to their work and to provide and maintain appropriate seating and, when needed, footrests.
The 7 Indirect Approach Jurisdictions
The remaining 7 provinces and territories—ON, PE, NB, NS, NT, NU and YT—don’t directly require employers to protect workers from MSIs. But if your workplace is located in one of these jurisdictions, don’t be lulled into thinking that you don’t need to worry about MSIs. You are, in fact, required to protect against MSIs, albeit the obligation is indirect. The duty to guard against MSIs is implied by what’s commonly known as the “General Duty” clause—that is, the part of the OHS Act that requires employers to take every reasonable precaution to provide a safe and healthy workplace and protect workers against known risks.
How do we know that this general duty includes an obligation to protect workers from MSIs? Some of the provinces have said so. For example, ON, NB, NL and NS provide information sheets or guidelines for employers on MSIs and how to prevent them. Those sheets or guidelines generally say that MSI risk factors in the workplace must be treated the same as any other workplace hazard. ON and NS specifically cite the general duty clause of their respective OHS Acts as the legal source of the duty to prevent MSIs and the reason it’s mandatory to follow the ergonomic guidelines.
For example, Nova Scotia’s government ergonomics Web site notes that the General Duty clause of the provincial OHS Act requires employers to take every reasonable precaution to protect workers and that “although not named specifically, this can include ergonomic issues.” In addition, ON’s information sheet notes that ergonomic “risk factors in the workplace must be treated the same as any other workplace hazard.”
PE hasn’t specifically said that its general duty clause covers MSIs, but it has implied as much. In March 2003, the PE Workers’ Compensation Board publicly stated that it recognizes that MSIs pose a serious problem in the workplace and launched its own MSI prevention initiative to deal with them. The three territories (NT, NU and YT) haven’t, to the Insider’s knowledge, stated or implied that they consider employers under a legal duty to address MSIs in the workplace. However, it’s likely that they would follow the same approach as the provinces.
Insider Says: The final draft of ON’s Musculoskeletal Disorder Prevention Guideline was released on Nov. 16, 2006.
Potential Consequences of Not Taking Ergonomics Measures
Not protecting workers from MSIs can cause you two kinds of problems:
Fines and Regulatory Penalties. The Insider couldn’t find any cases in which employers were fined for failing to take steps to protect workers from MSIs. But in the U.S., employers have been hit with fines for failing to take ergonomics measures–and Canada is expected to follow suit. Ontario is taking the lead. Under Operation Pains and Strains, MOL inspectors are focusing on ergonomic hazards and risk factors when inspecting workplaces. For example, an MOL inspector ordered the Liquor Control Board of Ontario to conduct an ergonomics assessment of how certain work was performed by workers in the warehouse [Ontario v. Cope].
Work Refusals. Failure to take measures to protect workers from MSIs has also been the basis of several workplace refusals across Canada. And the worker’s right to refuse work based on ergonomics-related risks has been upheld in at least two cases:
Example #1: A mail carrier was told that she could no longer drive on the left shoulder of the road to deliver the mail to rural mailboxes. Instead, she was instructed to drive on the right side of the road and deliver the mail through the passenger side of her vehicle. The mail carrier refused to work, claiming that the bending, stretching and twisting that would be required to deliver mail through the passenger side was a health risk under the Canada Labour Code. The Canada Appeals Office on OHS ruled that ergonomic hazards are covered by the Code and ordered the postal company to take steps to address such hazards [Canada Post Corp. v. Canada].
Example #2: A worker in an Ontario automobile plant refused to perform an assembly line operation that involved hammering parts. She claimed that the repetitive motion was causing her great pain. The plant disciplined the worker. The Ontario Labour Relations Board ruled that the work refusal was justified. The work wasn’t likely to endanger the average worker. But this worker had a pre-existing medical condition that made her especially susceptible to ergonomics-related injury from a repetitive hammering motion, the Board said [Re Canadian Auto Workers, Local 397].
How to Comply
If you’re in one of the direct approach provinces, the province’s OHS regulations will tell you the measures you’re expected to take to protect your workers. If you’re in an indirect approach province that has issued guidelines on preventing MSIs, you need to look to the guidelines to determine your obligations.
How can you tell what your legal obligations are if your province doesn’t address MSIs in either its OHS regulations or in guidelines, or if its guidelines are very general? Answer: Look at what the other provinces require. Those requirements are likely to represent the standard judges, regulators and inspectors will use to determine what employers should do to protect workers from MSIs in all parts of Canada.
Requirements for protecting workers from MSIs, while they vary from province to province, generally require employers to use a three-step approach:
Step #1: Risk Identification & Assessment
The first step is to evaluate the workplace for MSI risks. Once you identify those risks, you need to assess how serious a hazard they pose. BC’s OHS regulations include a list of risk factors to consider when evaluating your workplace:
There is a RULA Employee Assessment Worksheet that you can use to determine whether workers are at risk of developing an MSI in their trunk, neck or upper limbs. RULA (rapid upper limb assessment) examines several risk factors associated with the body posture, loads and muscle use and compiles these factors into a posture score. The worksheet was provided by Michael Moniz, health, safety and training coordinator for Inergy Automotive Systems (Canada) Inc., who has used it with great success.
Step #2: Risk Control
Once an employer has identified risk factors, it must take steps to eliminate or, if that’s not practical, minimize the risk of MSIs. For example, it could raise a workstation to a more comfortable height for a worker, shorten a workstation so a worker doesn’t have to reach for materials or tools, let workers who perform a repetitive task take more frequent breaks or switch to tools that are ergonomically designed to fit better in workers’ hands and require less force to use.
Step #3: Worker Education and Training
One of the most common and effective ways for an employer to learn about MSIs and risk factors in its workplace is by asking its workers. After all, workers are the ones using the equipment and workstations and performing the tasks. So they’re in the best position to tell you if, say, the position or layout of a workstation is giving them a pain in their neck or elbow. Since workers are on the front line, employers should educate them on MSIs and the early signs and symptoms of them, and on safe work procedures. And employers should encourage workers to come forward if they’re experiencing any signs and symptoms of an MSI.
Conclusion
As a safety coordinator, you need to impress on management the importance of dealing with MSIs and get company leaders to understand that ergonomics isn’t some new-fangled fad that’s going to go away. Taking steps to make your workplace more ergonomically sound can not only save you money, make your workplace more efficient and protect your workers from unnecessary and avoidable injuries, it can also protect you from OHS violations and other liability.
INSIDER SOURCE
Michael Moniz: Health, Safety & Training Coordinator, Inergy Automotive Systems (Canada) Inc., One Solvay Dr., Blenheim, ON. N0P 1A0.
SHOW YOUR LAWYER
Canada Post Corp. v. Canada, [2006] F.C. 1011 (CanLII), Aug. 22, 2006
Liquor Control Board of Canada v. Cope, [2005] CanLII 23274 (ON L.R.B.), June 28, 2005
Re Canadian Auto Workers, Local 397, [1995] O.O.H.S.A.D. No. 32, Aug. 18, 1995
Click here to view a Model Form – RULA Employee Assessment Worksheet
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