What Does the Law Require Employers to Do?
Most of the hazards that workers face are, at least to some extent, under an employer’s control. For example, the employer controls its machinery. So it’s in a position to prevent injuries by ensuring that adequate guards are in place. An employer even has control over physical hazards that are invisible, such as noise and heat. However, there are some hazards over which employers have little or no control. A good example: animals. In some industries, workers face a very real risk of encounters with animals—ranging from large, deadly creatures such as bears, wolves and cougars, to smaller, less dangerous animals such as spiders, wasps and snakes. Animal attacks can lead to serious and even fatal injuries and illnesses. But because animals are subject to the laws of nature rather than to the laws of the workplace, employers are under no obligation to protect their workers from animal attacks. Right?
Wrong. Employers do have a duty to take reasonable steps to protect workers from all known hazards in the workplace. And even though they’re rarely mentioned in the OHS laws, wild animals are likely to be considered a known and foreseeable hazard—especially if your workplace is located in an area where employers know or should know that the risk of attack is great. This principle became clear in a controversial Yukon case from last year in which a geosciences exploration company was charged with OHS violations after a worker was killed in a bear attack.
We’ll tell you more about the Yukon case and describe the risks posed by animal attacks. We’ll also explain what the law requires you to do to protect workers from animal attacks. And there’s a checklist here of items that you should include in a training program for workers on animal attacks.
Defining Our Terms
There are some workplaces in which contact with animals is an integral part of the work, such as cattle ranches, veterinary offices, abattoirs and zoos. This article isn’t about such workplaces. It focuses on workplaces where the risk of contact with animals is incidental to the work being done, e.g., logging operations in which workers operate in forests occupied by cougars and bears. And we’ll use the generic term “animal” to include mammals, insects and reptiles.
The Risk of Animal Attacks on Workers
In April 2006, Jean-François Pagé, an experienced field worker for Aurora Geosciences Ltd., was staking claims east of the Ross River in the Yukon Territory when he stumbled on the den of a female grizzly bear and her cubs. The bear attacked and killed the 28-year-old worker. The Yukon Workers’ Compensation, Health and Safety Board (YWCHSB) filed six charges against the company, but ultimately dropped four of them. A trial date was set for January 24, 2008, on the remaining two charges: failing to adopt and use work procedures to prevent or reduce the risk of illness or injury and failing to provide workers with the necessary instruction, training or supervision. (We’ll keep you updated on the outcome of the trial.)
Although charges like those in the Pagé case are rare—the Insider couldn’t find another case in which a Canadian employer was charged in connection with an animal attack on a worker—incidents of animal attacks on Canadian workers are not:
- In 2004, three mine workers in the Northwest Territories were attacked by a grizzly bear. One worker was seriously injured;
- In January 2007, two forestry workers were attacked by a grizzly bear near its den. Both suffered bites;
- In June 2006, a black bear attacked a forestry worker in Ontario. The worker was treated and released; and
- In November 2007, an Ontario student was killed while working for a geophysics company in Saskatchewan. An inquest was convened to determine if he was killed by a bear or wolf.
WHAT THE LAW SAYS
What do OHS laws say about animal attacks and the employer’s obligation to prevent them? Not much. Currently, only three jurisdictions— NL, NT and NU—address this safety hazard at all. NL’s Mineral Exploration Standards Regulations require employers to make exploration work crews aware of the potential for encounters with bears. (Bears posing a risk to workers may be trapped, relocated or killed under proper supervision by wildlife officials.) The Mine Health and Safety Regulations of NT and NU require the person in charge of an exploration site to ensure that workers are trained on protection from animal attacks and given the means to prevent an attack or defend themselves from “an attack by any animal likely to be encountered in the area.”
The OHS laws in the remaining 11 jurisdictions—Fed, AB, BC, MB, NB, NS, ON, PEI, QC, SK and YT—don’t say anything about protecting workers from animal attacks. 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 animal attacks. You are, in fact, required to protect workers from animals, although the obligation is indirect.
If you’re a regular reader of the Insider, you can probably guess what we’re going to say next. The duty to deal with the hazard of animal attacks is implied by what’s commonly known as the “general duty” clause—that is, the part of every provincial, territorial and federal OHS statute that essentially requires employers to take every reasonable precaution to provide a safe and healthy workplace and protect workers from known or foreseeable risks. The “general duty” clause is basically the backstop that covers all the hazards the lawmakers who wrote the OHS statute and regulations didn’t foresee and/or failed to address.
This implied duty seems to be the theory behind the charges in the Pagé case. In response to concerns from industry representatives and experts that the company was being prosecuted for a bear attack when the behaviour of bears can’t be regulated or controlled, a spokesperson for the YWCHSB made the following comment: “As with any workplace, an employer is obligated to provide the training, do a hazard assessment and provide the necessary protection and supervision so that workers are kept safe.” The spokesperson didn’t use the term “general duty clause.” But that clause is the most likely source of the obligation to which he was referring.
Although the Yukon Territory has taken the most public stance, evidence suggests that other jurisdictions also interpret the general duty clause as applying to the risk of animal attack. At least one province has said as much. In 2000, WorkSafeBC released a hazard alert on bear attacks. The alert specifically says that when workers work in areas where they may encounter bears, “employers are required to protect the workers’ safety by including bear awareness in their existing health and safety program.” Again, the alert doesn’t mention the general duty clause by name, but it’s what was most likely meant by the phrase “are required.” WorkSafeBC has also issued guidelines on training workers on bears and notes that the guidelines can be applied to other hazardous wildlife and insects (The guidelines are available at www2.worksafebc.com/PDFs/petroleum/worker_training_bears.pdf.)
Other jurisdictions have also indicated that they consider the risk of animal attacks to be a hazard to workers. For example, PEI’s Workers’ Compensation Board lists insect and animal bites as workplace hazards. And the federal Oil and Gas OSH Regulations require garbage containers to be kept in an area that’s inaccessible to animals, presumably to avoid attracting animals to the workplace. The fact that regulatory agencies have issued such guidance strongly suggests that they consider animal attacks to be a known or foreseeable hazard and thus covered by the general duty clause. So if your facility is in one of these jurisdictions, you should consider yourself warned about the danger of animal attacks and under a legal obligation to take reasonable measures to guard against them.
Employers need to be on guard even if they’re in one of the jurisdictions that hasn’t come out and stated or implied that it considers employers under a legal duty to protect workers from animal attacks. Animal attacks may be foreseeable even if the government hasn’t issued warnings about them. And if an attack is foreseeable, you have a duty to address such attacks and take steps to protect workers from them. To determine if an animal attack is a foreseeable risk for your workers, consider:
Any history of animal attacks against workers or others in the area. If there’s been a history of animal attacks on people or even pets in the area by your workplace, it’s foreseeable that your workers could also be at risk of attack.
Knowledge of the presence of dangerous animals in or near the workplace. Some parts of Canada are home to many potentially dangerous animals. So if your workplace is located in such an area, it’s foreseeable that your workers will encounter and possibly be attacked by those animals. And even if your workplace isn’t in an area where dangerous animals are known to be, you probably have to take steps to protect workers from wolves if they’re suddenly sighted in the area. So for example, even if wolves aren’t indigenous to the area, if they’ve been spotted in the vicinity you might have to take measures to protect workers from them.
Nature of the work. Certain work by its very nature is more likely to expose workers to animal attacks than other types of work. For example, it’s foreseeable that a logger may be attacked by a cougar because he must work in the woods where cougars live. But accountants don’t do their jobs in the forest. So an accounting firm doesn’t have to protect its accountants from cougar attacks.
HOW TO COMPLY
The YWCHSB’s position in the Pagé case that animal attacks were a foreseeable hazard and therefore covered by the OHS laws has a certain logic. And, in fact, the company charged in the Pagé case seems to have recognized that bear ttacks were a hazard for workers and took at least some steps to train them on dealing with that hazard. For example, the company’s website indicates that field workers are trained in “bear behaviour and defence.” But the question remains: Did the company do enough to satisfy its legal duty to protect its workers from bear attacks?
Figuring out what steps you should take to comply with your duty to protect workers from animal attacks is a challenge. The Pagé case will be, to the Insider’s knowledge, the first time a Canadian court has had to decide this issue. So its outcome will provide some important guidance for employers. But it may be months or even years before the case is resolved. And, with the warm weather coming and animals—and their babies—coming out of hibernation, you can’t afford to wait.
To ensure that your company does enough to protect its workers from animal attacks, the smart strategy is to adopt the same basic approach that you use to deal with other workplace hazards, especially hazards that aren’t rooted in technology and engineering.The basic approach involves taking the following four steps:
Step #1: Identify and Assess Risk of Animal Attacks
The first step is to evaluate the workplace to determine if workers are at risk of being attacked by animals. For many workplaces, the answer will be no. But if you determine that workers are at reasonable risk of attack by certain animals, you need to assess how serious a hazard they face. For example, forestry workers face a far greater risk of attacks by deadly animals such as bears, wolves or cougars than do landscaping workers, who are probably only at risk of insect bites. However if you know that a landscaper has a bee allergy, you may have an even greater obligation to protect him from bee stings.
Step #2: Control Risk
Once you’ve identified the workplace’s risk of animal attacks and the severity of that risk, you must take steps to eliminate or, if that’s not practical, minimize that risk. There may be very little that you can do to eliminate the risk of animal attacks. For example, forestry workers have to go into the woods to harvest trees— there’s just no way around that. And since bears, wolves and cougars live in the woods, there’s not a lot that you can do to eliminate the risk that forestry workers will encounter such animals. In fact, critics of the charges in the Pagé case claim that the only way to eliminate the risk of bear attacks would be to pull field workers completely.
But there are things you can do to minimize the risk of encounters with animals or reduce the likelihood that these encounters will result in attacks. For example, you can give landscaping workers bug repellent to spray on themselves while working or provide them with uniforms treated with bug repellent. You could give workers facing possible attacks by bears pepper spray, bear repellent, “bear bangers” (which make a loud noise designed to drive bears away) or even guns. And you could ensure that workers working alone or in remote areas have portable radios, GPS systems and ready access to helicopters so they can quickly be found and removed from areas in which bears or other dangerous animals have been sighted.
Step #3: Educate and Train Workers
How a worker handles a confrontation with, say,a grizzly bear, may well determine whether he lives to tell the story. So it’s crucial to educate workers about the risks of animal attacks and train them in how to deal with animal encounters. Make sure that such training is a standard part of the safety training curriculum. What should that training include? It depends in part on the types of animals workers are likely to encounter and whether those animals pose a serious hazard. For example, landscape workers will require far less extensive training than loggers.
Step #4: Monitor and Follow Up
Finally, you should monitor the effectiveness of your safety measures. A key part of this strategy is to thoroughly investigate all incidents in which employees encountered wild animals. In other words, look not only at actual attacks and why they happened, but also at encounters that didn’t result in attacks and why they didn’t happen. Try to learn from each kind of encounter and modify your safety measures accordingly.
“You cannot regulate the behaviour of wild animals in the bush.” These remarks by Yukon Chamber of Mines president John Witham in response to the charges filed in the Pagé case are true enough. Animals are a force of nature. But so are other forces of nature, such as gravity, electricity, heat and cold. And even though you can’t control these forces, you can and must recognize that they may be present in your workplace, that they pose a threat to workers and that, accordingly, you must take appropriate steps to deal with them.
What’s happening in the Yukon right now is, in other words, nothing more than the application of the legal principles on which the OHS laws have always been based to a hazard that wasn’t previously recognized as posing a danger to workers. Regulators there have come to understand something that eventually regulators in all jurisdictions will: Animal attacks are a real workplace hazard. And having reached this understanding, it’s a short step for regulators to expect employers to take steps to eliminate or minimize the danger posed by animal attacks just as they would with respect to any other hazard their workers face.