Immigration & the OHS Program: Does Safety Training Have to Be Multilingual?
Canada’s workforce is becoming increasingly diverse. According to 2016 census data, 23% of Canadians (7.6 million people) speak a language other than English or French—and 25% of these people use that other language at work. And with waves of new immigrants pouring into Canada, those percentages will steadily grow in the years ahead. How will all of this affect your OHS program—especially its fundamental objective of providing effective safety training?
Foreign Workers Are More Vulnerable to Work Injury
Foreign born workers are twice as likely to suffer work-related injuries as Canadian-born workers, according to an Institute for Work and Health study. In the US, Hispanics consistently suffer fatal and serious work injuries at significantly higher rates than their American counterparts. (While Canada doesn’t keep such statistics, anecdotal evidence suggests that Hispanic workers in Canada are also abnormally susceptible to work injury.
Statistics are all well and good but it’s the real-life incidents that resonate like the one that happened at an Alberta oilsands project in April 2007, when two Chinese workers were killed after the roof of the oil storage tank they were constructing collapsed on top of them. Four other Chinese workers were also injured. The workers who had only been in Canada for a year and didn’t speak English were asked to carry out a makeshift erection procedure aimed at assembling the tank wall and roof structure at the same time, instead of erecting the walls first. They received no formal training, only verbal instructions which might not have even been in Chinese. The result was a $1.5 million fine against SSEC Canada Ltd., at the time the highest OHS fine ever imposed on an employer in Alberta.
The Language of Safety Training
While immigrants tend to be disproportionately represented in hazardous jobs, lack of English and French language skills also add to their vulnerability by interfering with their ability to absorb their safety training (and communicate with co-workers). Deliberately hanging non-English- or French-speakers out to dry by providing them safety training in English or French is the kind of reckless offence that invites criminal negligence under C-45. Thankfully, such cases are few and far between. The more common scenario involves the well-intentioned employer who thinks the English/French safety training and information it’s providing to foreign workers is clear and comprehensible because workers speak those languages.
The problem is that English or French isn’t the first language for many of these workers. And while they may be able to converse in English or French, they can’t process information at a conversational or technical level. Or, a worker that may be able speak but not read English may be capable of absorbing oral but not written safety training.
What the Law Says
So far at least, the new demographics haven’t induced a single jurisdiction to add multilingual training requirements to its OHS laws. As before, the laws just say employers must provide workers appropriate safety training and information but don’t specify in which language. Although there are a few language-specific safety requirements sprinkled in, they apply only to limited positions and situations.
Language-Specific Safety Requirements Contained in OHS Laws
|Jurisdiction||Language-Specific Safety Rule|
|Federal||SDS must be in both French and English (OHS Regs., Sec. 10.34(1))|
|Ontario||*Employer must post Act and workers’ rights, responsibilities and duties materials in English and “majority language” of workplace [OHS Act, Sec. 25(2)(i)]
*Hazardous material identifications, SDSs and notices of hazardous physical agents must be in English and such other language(s) as may be prescribed [Act, Secs. 37(1)(c) and 41.(4)]
*Employers must provide adequate written and oral instructions and/or training in language that worker understands to workers who set up or remove certain measures on or by roadways, who direct vehicular traffic and who serve as signalers [Const. Projects, respectively, Secs. 67(6)(c), 69(4)(d) and 106(1.5)]
*Supervisors, deck attendants, shaft conveyance attendants and mine hoist operators must be capable of communicating effectively in English [Mines & Mining Plants, Sec. 10].
|Québec||Safety information about a remote control system must be kept on mine site available to users in French language [OHS Regs. for Mines, Sec. 213.1]|
|Saskatchewan||* Employer or contractor must ensure all work done underground or in open pit mine is supervised by direct supervisor with adequate knowledge of language normally used at mine [Mines Regs., Sec. 14(2)(c)]
*Employer or contractor may issue a written temporary authorization to blast to a worker who, in its opinion has adequate knowledge of the language normally used at mine [Mines Regs., Sec. 246(1)]
|Yukon||Every person employed as a supervisor and every person supervising the work of other workers at a mine must be able to give orders in the language commonly used in the mine [Mines Safety Regs., Sec. 14(2)].|
What the Law Implies
But don’t kid yourself. What counts is not what the OHS laws say (or in this case, don’t say) but what they mean. When you look closely at how the laws are written, the purpose they serve and how they’re applied to actual workplace situations, it’s abundantly clear that employers do have an implied obligation to provide safety training and information in the language their workers speak and understand. Conversely, providing safety training and information to workers in a language they don’t understand is a clear violation of OHS laws. There are at least 3 sources of an implied duty to provide training in a language other than French or English if that’s what’s needed to ensure its effectiveness.
Training Requirements. The requirement under OHS laws is not to provide safety training but “adequate” or “appropriate” safety training that’s both comprehensible and suited to the particular hazards or circumstances of the workplace. To meet this requirement, employers must not only simply deliver safety training but also verify its effectiveness. In fact, the OHS laws of at least 4 jurisdictions—Alberta, Saskatchewan, Northwest Territories and Nunavut—define “training” as both:
- Providing information and explanation about a subject matter; and
- Requiring a “practical demonstration” that the worker actually acquired the knowledge or skill the information and explanation was meant to convey.
Safety Information Requirements. OHS laws also require employers to give workers certain health and safety information, e.g., the WHMIS obligation to furnish an SDS listing important health and safety information about hazardous products to which workers are exposed. As with safety training, required safety information must be clear and comprehensible.
Due Diligence. In case you’re ever prosecuted for an OHS violation, failure to ensure that your safety training and information is comprehensible and comprehended undermines any shot at a due diligence defence, i.e., proving that you took all reasonable steps to comply and prevent the violation. Example: Simply handing safety manuals to new workers and telling them to read the materials was inadequate and relied too much on workers’ experience said an Alberta court in ruling against an oil company’s due diligence defence [R v. Dial Oilfield Services, 2007 ABPC 16 (CanLII)].
4 Steps to Take
As OHS director, your primary responsibility is to ensure that all workers get safety training and information that they can readily understand. Here are 4 ways to fulfill that mission:
Step 1: Determine Languages Used in Workplace
First, determine the languages your workers understand so you can tailor your training efforts accordingly. Thus, while English and French should work for most workers, if a worker speaks only Mandarin, you better deliver the training in Mandarin or in some other format the worker can comprehend before sending him off to do the job.
Step 2: Use Pictograms Where Possible
One way to cross language barriers is to do it visually by using pictograms to provide safety information. A pictogram is a graphic symbol or picture that represents an idea. Effective pictograms are simple and easily understood by workers. WHMIS warning labels are good examples of pictogram use. Be aware that pictograms may have to accommodate cultural differences. Thus, for example, non-Western countries use the red crescent moon rather than a red cross as the symbol for first aid.
Step 3: Have Translators Provide Information Verbally
There’s some information that simply can’t be provided using pictograms, e.g., the workers’ right to refuse dangerous work. For such information, you may need translators who are fluent in the applicable languages verbally translate that information for workers. You can either use outside translators or in-house workers or supervisors who are fluent in the relevant languages.
Step 4: Provide Written Information in Relevant Languages
Using pictograms and verbal translations are good first steps. But there’s some information that’s so important that workers should have it in writing. Also, the OHS laws may require you to provide certain safety information in writing, whether its handed out to workers or posted in the workplace. So, you’ll have to provide such information in the language used in the workplace. You may be able to get some written safety material in languages other than English and French from your jurisdiction’s workers’ comp board or OHS agency. For example, the Ontario WSIB has safety fact sheets in languages such as Chinese, Italian, Korean, Polish, Portuguese, Punjabi, Russian, Spanish and Vietnamese. And WorkSafeBC offers written materials in Chinese, Punjabi, Spanish and Vietnamese. Non-government safety organizations like the Construction Safety Association and the Industrial Accident Prevention Association are also a potential source of multilingual safety materials.