2018 OHS LEGISLATIVE & REGULATORY HIGHLIGHTS
OHS change in BC continues to be steady and systematic, the product of incremental regulatory changes unfolding according to WorkSafeBC’s 3-year plan.
January: New OHS regulations take effect for industrial steel storage racks 2.4 metres or higher.
February: WorkSafeBC proposes OHS regulatory changes for:
- Concrete formwork;
- Mobile equipment;
- Blasting operations; and
- Personal flotation devices on fishing vessels.
June: Annual changes to OELs take effect.
July: New OHS first aid attendant training requirements take effect.
August: WorkSafeBC issues new guidelines on electrical safety minimum approach distances (under Part 19 of OHS Reg.)
October: WorkSafeBC revises environmental tobacco smoke and e-cigarette vapours control Guidelines (G4.82/4.82) to account for cannabis.
November: WorkSafeBC proposes new policy on use of video surveillance to perform surveillance on workers who file workers’ comp claims.
November: WorkSafeBC launches process safety inspection campaign.
December: New Guidelines (G9.22) explain how to get WorkSafeBC approval to use alternative measures to control or isolate adjacent piping for confined space entry.
THE YEAR IN OHS ENFORCEMENT
As usual, WorkSafeBC was notoriously slow in reporting enforcement data. But the first 6 months reported so far lists a $628,000 fine, second highest in the country, for a workplace violence violation resulting in an attack on a worker.
5 Highest OHS Fines Reported in BC in 2018 (thru June)
|$628,034||Interior Health Authority||Mental health centre worker and client attacked by would-be visitor denied entry||Failure to perform workplace violence hazard assessment and develop workplace-specific prevention procedures addressing identified risks|
|$70,147||Ebco Industries Ltd.||Worker removing metal shavings gets arm caught in auger of milling machine whose door stop spindle interlock had been disabled||Repeat offence of failure to ensure machinery was equipped with adequate safeguards and provide necessary safety information, training and supervision; failure to ensure safeguards not removed|
|$64,650||K.M.S. Tools and Equipment||Hoist cable breaks causing steel security gate to fall and seriously injure worker standing beneath||Failure to ensure load lines on hoist didn’t contact anything but load block and sheaves, do regular inspections and implement OHS program|
|$51,191||Porcupine Wood Products Ltd.||Sawmill worker injures hand after contacting unguarded chain-and-sprocket drive for saw outfeed roller conveyor||Repeat offence of failure to ensure that machinery was fitted with adequate safeguards to prevent worker contact with hazardous power transmission parts|
|$44,922||Dual Kloot Construction||Construction worker seriously injured after falling 5.5 m from barn roof||Failure to ensure proper use of personal fall protection system and provide necessary safety information, training and supervision (repeat offences); no anchorage connectors to lifeline|
THE YEAR IN WORKERS’ COMPENSATION
May: WorkSafeBC holds public hearings on the current Permanent Disability Evaluation Schedule (PDES), used to calculate permanent disability awards for workers.
June: WorkSafeBC adopts new policies to implement newly passed Bill 9 which establishes presumption that PTSD is work-related when suffered by police officers, firefighters, paramedics, sheriffs and corrections officers.
September: Public review of proposed changes to Certificate of Recognition (COR) program offering workers’ comp incentives to employers for meeting safety standards more rigorous than OHS requirements.
November: WorkSafeBC holds public review on reconciling the rule requiring workers to file claims within 1 year of injury with the fact that mental disorder claims often take years to develop in an attempt to establish a new deadline policy.
December: WorkSafeBC proposes changes to simplify and reduce employer reporting and remitting obligations.
December: WorkSafeBC announces changes to PDES methods for assessing loss of strength, range of motion and vision disability taking effect on Jan. 1, 2019.
BC 2019 Workers’ Comp Rates
|2019 Average Assessment (per $100 assessable payroll)||2019 Maximum Assessable Earnings||2018 Average Assessment (per $100 assessable payroll)||2018 Maximum Assessable Earnings||2019 Filing Deadline (based on final 2 digits of account number)|
|$1.55||$84,800||$1.55||$81,900||Feb. 28 thru March 31|
TOP 3 OHS CASES
Here’s a summary of what OHSI voted the 3 most significant work safety cases decided in BC in 2018.
- Arbitrator Strikes Down Random Drug Testing as Privacy Invasion
In January, a BC arbitrator struck down random testing for coal miners. Workers should have lower privacy expectations if they do safety-sensitive jobs, the mining company argued. But the arbitrator disagreed noting that it’s not just the bodily fluids but all the personal information workers who test positive must reveal that makes random testing so intrusive. And because it’s “suspicion-less,” random testing is justifiable only if the employer can show that there’s an actual problem with drug/alcohol use—not simply that the workplace is dangerous. The coal mine in this case didn’t meet its burden. There was no specific evidence tying any particular accident or injury to an employee who was under the influence of drugs or alcohol; and only 3% of all post-incident tests done at its 5 coal mines over a 5-year period had come back positive [Teck Coal Ltd. (Fording River and Elkview Operations) v United Steelworkers, Locals 7884 And 9346, 2018 CanLII 2386 (BC LA), Jan. 23, 2018].
- Lousy Training, Not Worker’s Safety Violation, Causes Train Accident
A breakdown in radio communications between the switchman and trackmobile operator during a routine moving operation caused a railway car to break loose and smash into a warehouse. The railway blamed the accident on the switchman’s failure to follow safety rules. Coupled with his previous violations, it was confident it had just cause to terminate. But the court saw otherwise. Although the railway provided safety training, it didn’t train the men what to do in the event of a radio breakdown. So it didn’t have just cause and had to pay the switchman 2 months’ termination notice for wrongful dismissal [Tymko v 4-D Warner Enterprises Ltd., 2018 BCSC 372 (CanLII), March 9, 2018].
- Victim’s Experience Not Objective Standard Determines If Event Is “Traumatic”
The patient’s son doesn’t think his mom is ready to be discharged from the hospital and hollers at the nurse preparing the discharge papers. He follows her into a small room, places his hands on the door as if to bar her exit and continues the tirade before finally withdrawing. As a result of the incident, the nurse develops PTSD. But her claim for workers’ comp benefits is denied. The non-work related physical and emotional abuse the nurse suffered at the hands of her husband made her unusually susceptible, the WCAT explained. Thus, while the confrontation was no doubt traumatic to her, it wouldn’t have been so to the average person. The court disagreed citing previous BC workers’ comp cases finding that whether an incident constitutes a “traumatic event” is based on a subjective, not objective standard. But despite winning the battle the nurse lost the war as the court ultimately upheld the denial as reasonable [Atkins v. British Columbia (Workers’ Compensation Appeals Tribunal, 2018 BCSC 1178 (CanLII), July 13, 2018].
WHAT TO EXPECT IN 2019
Last February, WorkSafeBC issued a new 3-year Workplan outlining its priorities and objectives through 2020. The former include reviewing:
- Bullying and harassment requirements (under Sect. 173 of Workers Comp Act);
- Partners in Injury & Disability Prevention voluntary certification program;
- Rules for discriminatory action, i.e., reprisal complaints;
- Residential demolition and asbestos abatement industries
- Potential certification program for asbestos industry; and
- OELs, including biennial reviews of formaldehyde and styrene.
The Workplan also lays out an agenda for OHS regulatory revision, including the following items slated for 2019:
BC OHS Regulatory Changes Made or on Tap for 2019
|Part of OHS Regulation||Expected Change(s)|
|Part 4 General Conditions||Hazard identification & risk assessment to be required in all workplaces, not just designated high-risk workplaces|
|Part 4, Secs. 4.81 and 4.82||Extend duty to control exposure to environmental tobacco smoke to e-cigarettes|
|Part 6 Substance Specific Requirements, Secs. 6.42-6.58||Update cytotoxic drugs requirements, which were created 20 years ago|
|Part 6, Secs. 6.89 and 6.90||Update Restricted entry intervals (REIs), i.e., minimum time required between time a pesticide is applied and time people can enter the area without protective clothing and equipment based on recent changes to regulatory and pesticide industry standards|
|8. Part 8 and Part 18 Traffic Control, Secs. 8.24 and 18.9(b)||Update high-visibility apparel requirements and references to standards cited in Regulation and require selection to be based on a comprehensive WCB Standard Personal Protective Equipment Standard 2-1997, High Visibility Garment (“WCB PPE 2- 1997”)|
|Part 12 Tools, Machinery and Equipment, multiple sections||Incorporate CSA standards and adopt other changes to be determined by comprehensive review, first since Reg. was adopted in 1998|
|Part 18 Traffic Control, multiple sections||Harmonize rules with Ministry of Transportation 2015 Interim Traffic Management Manual for Work on Roadways|
|Part 20 Construction, Excavation and Demolition||Require training for concrete pump operators to a specific standard including an assessment of competency, as requested by BC Ready-Mixed Concrete Association|
|Part 26 Forestry Operations and Similar Activities, multiple sections||New requirements for arborists based on ANSI Z133-2012 Standard for Safety Requirements in Arboricultural Operations|
Source: WorkSafeBC, 2017 – 2019 Regulatory Amendment Workplan