Safety professionals constantly talk about “health and safety laws.” But that’s a pretty squirrelly term. Go to a law library and search your brains out, and you’ll never find a big book with the label “Health and Safety Law.” Oh, health and safety law exists all right. But it’s scattered all over the place. I hope this little overview will give you a sense of what all the elements are and how to pull them together.
So, where do you look for the health and safety laws?
Statutes are pieces of legislation enacted by bodies of lawmakers called legislators. Provincial OHS acts and the Canada Labour Code are all examples of statutes. But other statutes also affect workplace health and safety, such as environmental and public health laws. For example, some health laws that ban indoor smoking in public places apply to workplaces. Although it’s not an OHS violation, permitting smoking in a workplace if you’re subject to such a statute is equally illegal. Statutes can also be enacted by different governments—federal, provincial and municipal.
Regulations are detailed rules that fill out the specific provisions of a statute. Thus, for example, the OHS statute establishes the broad duty to safeguard employees against workplace hazards and the OHS regulations or standards define the hazards and measures required to prevent them. Unlike statutes which are made by legislators, regulations are created by the government agency that administers the statute, e.g., the Ministry of Labour or Workplace Safety and Insurance Board in Ontario. The authority of the regulatory agency to create the regulations is contained within the statute itself, i.e., the “authorizing statute.”
Regulatory agencies typically issue interpretation letters, guidelines and other materials that explain what the laws mean and what employers should do to implement them. Although they technically don’t carry the force of law, guidelines are important because they show how the agency interprets the law. Consequently, courts and arbitrators look to government guidance when deciding cases under the law.
COMMON LAW—COURT CASES
Common law is law made by judges, rather than by legislators and regulators. The law gets made one case at a time on the basis of the facts of that case. Each case then serves as precedent establishing standards and rules for the cases to follow. Since no two cases are exactly the same, judges have to extrapolate the old rules to the facts of the new case they’re being asked to decide. In so doing, they expand the law. The more cases that get ruled on, the more the law grows.
One big area of common laws is torts—a kind of penal code of civil law. Unlike criminal law which is enforced chiefly via prosecution, civil law claims are typically asserted in court cases asking for damages. Negligence is the tort everybody has heard of, the one that spawns the most litigation and the one that has the most direct bearing on safety. Negligence law is fairly straightforward: Persons are liable for (if we were talking criminal law, we’d use the phrase “guilty of”) negligence if:
- They owe a person (who we’ll refer to as a victim) a duty of reasonable care;
- They don’t live up to that duty;
- The failure to show reasonable care causes the victim to get hurt; and
- The victim suffers damages as a result.
Just about anything can be negligence—from failing to signal a turn to leaving a banana peel on a crowded train platform. Negligence can be committed by individuals or companies. This exposure to liability is a major concern for all companies and the reason they need liability insurance. Of course, a company is really an amalgamation of the individuals who work for it. So, when companies are sued for negligence, it’s usually because one or more of its managers or employees did something wrong. This notion of holding a company liable for the acts of its agent is known as “vicarious liability.”
Standards by non-governmental organizations like CSA, NFPA, ANSI and ISO, are voluntary. Thus, while failure to obey an OHS rule is grounds for liability, you can’t be fined for not following a CSA standard. Or so you’d think. In fact, failure to follow a voluntary standard can constitute a violation. How? One way is if the standard is adopted into the statute or regulation. Thus, if an OHS regulation says you must provide PPE that conforms to CSA standards, the standard becomes mandatory.
Another way voluntary standards can become legally binding is when regulators, judges and juries use them to determine if a company did enough to meet its obligations under the law. This can happen when a law sets a general and vague requirement, e.g., that employers act “reasonably” to safeguard against “recognized hazards.” Voluntary standards are used to judge what hazards are “recognized” and what steps are “reasonable” to guard against them. Thus, courts and regulators might rely on a company’s failure to meet a voluntary standard as evidence of a violation of its legal duty. Obviously, this is of immediate relevance in determining if a company or individual met the standard of due diligence.
Industry standards work according to the same principles as voluntary standards. They’re not mandatory to follow; but not living up to them can result in liability. But there are a few differences:
First, while voluntary standards are typically more stringent than legal requirements, some industry standards are more lax. In such a case, employers must obey the regulatory standard. In other words, industry standards supplement but don’t supplant regulatory standards. Thus, following an industry standard is not a defense for violating a legal requirement.
The other difference between industry and voluntary standards is that the former tend to be less clearly defined. While CSA standards are spelled out in black and white, there’s often grounds for dispute over what actually constitutes the standard for a particular industry.
The one thing to take away from this little lesson is this: Safety law doesn’t begin and end with OHS. It’s a web of obligations spun from many sources. To protect your workers and avoid liability, you must comply with all of them.