In an ideal world, protecting workers from illness and injury would be too important to be left to the temporary ups and downs of the economy. But 2009 made it clear to all that the world we live in is anything but ideal. Everything that happened in safety this year was shaded by the dark clouds of recession.
For safety coordinators, it was a brutal year. The lucky ones emerged from the year with their budgets slashed but their OHS programs—and their jobs—intact. But while some companies scaled back their safety efforts, government inspectors and lawmakers kept up the pressure. OHS inspections, prosecutions and fines continued to increase—
not just in the usual hot spots of Ontario and BC, but all across Canada.
Continuing our annual tradition, the Insider will now offer some perspective on the major compliance stories of the year. We’ve also handed out our awards for accomplishments, both positive and dubious.
1. The H1N1 Challenge
2009 will be remembered as the year of swine fl u. On June 11, the World Health Organization officially declared that H1N1 had reached the pandemic level. The good news is that the current H1N1 virus is less virulent than SARS and other infectious diseases that have caused disruption in Canadian workplaces in the previous decade. The bad news is that H1N1 is relatively easy to contract. As a result, more workers are likely to come down with the illness. Consequently, H1N1 is more of a threat to business continuity than a threat to life. But it’s still the most pressing challenge of the moment.
The lesson: H1N1 is the latest chapter in a decade-long effort to apply the OHS and public health laws to threats of infectious disease in the workplace. With each episode, we learn a little more about what governments expect employers to do to protect their workers. The lessons that emerge from H1N1 will thus become crucial to preparing and responding to the next threat of infectious disease, whatever that happens to be.
Lest there be any doubt, several jurisdictions (and the federal government) have stated that protecting workers from H1N1 infection is a legal duty. Many jurisdictions have also issued guidelines to help businesses prepare for a pandemic, while others have simply updated the preparedness guidelines they published in response to the avian influenza threat of 2007.
2. The C-45 Volcano Remains Dormant
OHS laws change every year but the impact of regulatory change tends to be gradual and evolutionary. But there’s one potential game changer that needs to be tracked: C-45, the law that allows for criminal prosecution of companies and individuals that commit “wanton and reckless” safety violations that result in fatalities or serious injuries.
The biggest story in OHS compliance in 2008 was that after almost four years of inactivity, C-45 yielded up its first ever conviction of a corporation. We all wondered whether the conviction of the Transpavé company in connection with a machine fatality in Québec would usher in a wave of C-45 prosecutions. In fact, in last year’s Year In Review, we predicted that 2009 would see the fi rst prosecution of a corporate official as an individual under C-45.
We were wrong. No individuals were prosecuted for a C-45 violation this year. In fact, there hasn’t been a C-45 prosecution of any kind in the 20 months since Transpavé pleaded guilty to criminal negligence in April 2008, which in itself is big news. What made the absence of C-45 prosecutions especially conspicuous is that 2009 witnessed perhaps the most devastating workplace tragedy that Canada has experienced since C-45 took effect. In March, a crew of 16 oil workers for Husky Energy lost their lives when their helicopter plunged into the icy waters of the North Atlantic off the coast of Newfoundland. To the extent that, as many had surmised, the safety community was waiting for a large scale tragedy to wage an all-out C-45 prosecution, the Husky crash was it. But it didn’t generate even the whisper of a C-45 prosecution.
The lesson: In 2009, we learned that multiple fatalities won’t be enough to get C-45 out of the mothballs. C-45 will also require the presence of a clear villain. Husky didn’t fit that role. The company handled the entire tragedy with great sensitivity and grace and its OHS program was and is one of Canada’s fi nest. Convicting Husky for “wanton and
reckless” indifference to safety would clearly have been an almost impossible task for the prosecution.
3. Traditional OHS Enforcement Continues to Intensify
Prosecutors don’t really need C-45 to make OHS violations hurt. The current OHS laws are doing the job just fi ne. In 2009, OHS inspections, prosecutions and fi nes kept increasing. We know that in 2008, average OHS fi nes across most of Canada increased. And while the 2009 data haven’t yet been released, it looks highly likely that the trend will continue this year. And it’s not just in Ontario. In August, BC levied $300,000 in fines against a prime contractor and an employer after a fatal crane accident. In March, the highest fine for a violation of federal OHS law was handed out—$280,000 against Bell Canada after two workers suffocated while trying to install cable in an underground vault.
In Alberta, where average OHS fines in 2008 nearly doubled (from $143,333 in 2007 to $230,590) and total fines nearly tripled (from $1.72 million to $5.073 million), fines and prosecutions continued to rise. And back in Ontario, where prosecution activity has long been the most intense in Canada, those 200 new inspectors that the MOL added a couple of years ago are earning their salaries by carrying out not only routine inspections but also enforcement “blitzes” that target specific kinds of workplaces and risks.
The lesson: The economic recession is having no measurable impact on the intensity of OHS enforcement. Given the willingness of so many Canadian municipalities to reduce their own police, fire and public safety budgets, one can be forgiven for finding it hypocritical for the government to maintain and step up OHS enforcement pressure against the private sector during this recession.
4. Ontario Expands the Concept of Workplace Violence
Traditional OHS laws require employers to protect workers from physical hazards such as electricity, dangerous chemicals and mobile equipment. Over time, the laws need to be revised to keep pace with advances in technology, industrial processes and scientific knowledge improve. For example, the past decade has seen the emergence of regulations covering ergonomics, bloodborne pathogens and working in isolation.
Many jurisdictions are targeting workplace violence now. In several provinces, including MB, NL and NS, workplace violence is defined broadly to include not only physical acts of violence but also threats, intimidation, harassment and bullying. In effect, this definition of workplace violence imposes the same kind of de facto psychological harassment ban that applies to workplaces in Québec.
In 2009, Ontario pushed the workplace violence envelope even further. Bill 168 would require employers to implement risk assessments, violence policies and other anti-violence measures required by other provinces in their OHS regulations. But if enacted into law, Bill 168 would break new ground by: Requiring employers to protect workers not only from violence by co-workers and strangers but also domestic violence they know or should know is a threat; and Making a worker’s fear of violence a grounds for refusing work.
The lesson: Protecting workers is no longer purely an engineering challenge. Increasingly, the OHS laws are requiring employers to provide a workplace that’s free not only of physical but also mental and psychological hazards.
5. The Controversy Over Workers’ Comp Coverage for Mental Stress
Another manifestation of how workplace hazards are assuming a mental dimension involves the question of whether workers’ compensation should pay for mental stress. In 2009, the issue came to a head in BC. As in other provinces, BC provides workers’ comp coverage for job-related stress as long as the stress is the result of a discrete, traumatic event that happened at work.
The battle lines were drawn when a BC Hydro worker was denied workers’ comp benefits for post-traumatic stress he claimed he suffered after witnessing a gas line rupture. But the Board and appeals tribunals found this event wasn’t traumatic, citing the WCB Guidelines definition of “traumatic event” as something “horrific.” But in April, the BC Court of Appeal ruled that the traumatic event requirement was unconstitutional.
According to the Court, workers with physical injuries only had to prove they got hurt at work; workers with mental injuries had to show not only that the injury was work related but also that it was traumatic [Plesner v. BC (Hydro and Power Authority)]. In July, the BC Workers’ Comp Board changed its policy in response to Plesner by defining a traumatic event as “an emotionally shocking event” (a defi nition that accords with accepted medical dictionaries) and indicating that mental stress can be a delayed and not necessarily an immediate reaction to an event (consistent with accepted diagnostic practice for mental stress).
But while BC was loosening the restrictions on workers’ comp coverage for mental stress, Newfoundland was going in the opposite direction. In July, the NL Supreme Court ruled that the standard for judging the traumatic nature of an event is an objective, not subjective. In other words, the question of whether the event was traumatic is based on how a reasonable worker would have reacted to it, not on how the actual claimant did react to it [St. John’s Trans. Commission v. NL (WHSCC Review Division)].
The lesson: The “traumatic event” requirement is the dam holding back what would be a flood of workers’ comp mental stress claims that, frankly, neither employers nor the system can afford. To the extent they weaken the traumatic event restriction, cases like Plesner are a significant concern.
6. The Ban on Cellphone Use While Driving
Three different provinces made sweeping changes to their OHS laws in 2009: AB, BC and NL. For the most part, the changes were driven not by any new direction in philosophy but the need to bring OHS regulations into line with modern technologies and standards.
But the most noticeable trend in safety legislation in 2009 involved traffic safety. At least five different provinces— BC, MB, ON, QC and SK—either proposed or adopted bills banning individuals from using cell phones and other handheld communication devices when they drive.
The lesson: Although not OHS laws, bans on using cellphones while driving will increase the liability risks of companies whose workers drive on the job. These new laws will make it easier for victims of traffic accidents caused by distracted drivers who are driving in the course of their employment to hold the employer liable for negligence in a damages lawsuit.
Conclusion
At most companies, EHS and HR management are treated as totally separate functions. Even so, it sometimes becomes necessary for safety coordinators to get involved in what are generally regarded as purely HR functions. For example, a safety coordinator must ensure that appropriate discipline is meted out to workers who fail to obey safety rules. But in recent years, the degree of overlap between HR and EHS management has steadily broadened. This trend continued in 2009. Examples:
Return to work. Recessionary pressures intensified the need for companies to improve their return-to-work outcomes and either get workers back on the job as fast as possible or cut ties without violating their duty to make accommodations.
Drug testing. In 2009, courts and arbitrators across Canada took steps to clarify when it’s acceptable for companies to perform drug and alcohol testing on workers in the interest of preserving workplace health and safety.
Non-traditional work arrangements. Questions continued to arise over whether OHS laws apply to telecommuters who perform their jobs from home rather than at the company’s workplace.
Privacy. The H1N1 situation prompted the federal, Alberta and BC Privacy Commissioners to issue a joint set of guidelines clarifying that unless and until a public emergency is declared, employers must obey the “usual” workplace privacy rules in preparing and responding to the H1N1 threat.
The presentee-ism challenge. The recession intensified presenteeism—the trend of recent years for workers to show up for work when they’re ill or injured and should stay home, resulting in productivity losses that traditional OHS programs aren’t designed to control.
Bottom line: The effectiveness of OHS performance is coming to depend more on factors traditionally rooted in HR. Accordingly, safety coordinators need to work closely with their company’s HR managers to achieve success.
We’ll reconvene next year at this time to look back at how the year went. In the meantime, all of us at the Insider wish all of you a safe and prosperous year.
Glenn S. Demby, Esq.
Managing Editor
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Plesner v. BC (Hydro and Power Authority), [2009] B.C.J. No. 856, April 30, 2009 St. John’s Trans. Commission v. NL (WHSCC Review Division), [2009] NLTD 102 (CanLII), July 3, 2009
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