Reporting Every Incident: ‘Person’ vs. ‘Worker’ in the OHSA

Reporting Every Incident: ‘Person’ vs. ‘Worker’ in the OHSA

Person vs. Worker

The Occupational Health and Safety Act (OHSA) is set up to outline the rights and duties of all parties in the workplaces. Typically when one thinks of “workplace parties” the employer, managers/supervisors, and employees come to mind.  As such, most employers consider the OHSA to protect only workers of the workplace, but based on some of the specific wording in the act this may not be the case.  

In Ontario, under subsection 51 (1) of the OHSA, the Ministry of Labour (MOL) must be notified immediately after the occurrence of a death or injury at the workplace.  The belief has been that this only relates to deaths or injuries of a person employed by the workplace, but a recent OLRB case involving Blue Mountain resort reveals that in fact is not the case.

In December of 2007, an unsupervised guest at the Blue Mountain Resort in Ontario drowned in the indoor swimming pool. When the incident occurred, no workers were present in the pool area.  Blue Mountain decided not to report the fatality to the Ministry of Labour since the incident did not involve a worker.  Four months later a Ministry of Labour inspector visited the resort to conduct workplace compliance audit, and soon found out about the drowning.  As a result Blue Mountain was issued an order under Ontario’s subsection 51 (1) of the OHSA which states that:

Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means...

Based on the literal wording of the act, Blue Mountain was given an order since they failed to notify an inspector of the death of a person.  Blue Mountain appealed the order to the Ontario Labour Relations Board (OLRB) and further sought judicial review, but both the board and the Court upheld the order.

Subsection 51 (1) is not the only instance of the use of the word “person” in the OHSA.  While the term person is not defined in the act, “worker” is defined as “a person who performs work or supplies services for monetary compensation...” therefore the OLRB held that the term “person” was more expansive than “worker” and that the OHSA wouldn’t have used the word “person” if they only meant “worker.” The main reason for why the MOL requires non-worker fatalities and injuries to be reported is that the workplace hazards that injure non-workers may also endanger workers.

 

What does this mean for Employers?

While the responsibility under the OHSA to report deaths or critical injuries hasn’t changed or been revised, the outcome of the Blue Mountain case has broadened the understanding of OHSA’s definitions.  This new understanding runs the risk of turning almost any place into a workplace, and any injury or fatality as an incident to report.  What is and isn’t a reportable injury to the MOL under the OHSA?  Currently the answer really can only be left to, “it depends on the circumstances.”

Under the Canada Occupational Health and Safety Regulations Section 15.3 it states: Where an employee becomes aware of an accident or other occurrence arising in the course of or in connection with the employee’s work that has caused or is likely to cause injury to that employee or to any other person, the employee shall, without delay, report the accident or other occurrence to his employer, orally or in writing.

Manitoba’s legislation is very close to Ontario’s in that “Persons” are referred to in the act and the Division must be called should a critical injury or death occur.  PEI is in a similar position.  Although both provinces do not have case law similar to Blue Mountain that they were aware of, the Blue Mountain Case will likely set a precedent in other jurisdictions.

In speaking with Worksafe BC, they indicated their legislation is specific to a worker - Section 172 of the Workers Compensation Act ("Act") states:

172 (1) An employer must immediately notify the Board of the occurrence of any accident that (a) resulted in serious injury to or the death of a worker….

While some provinces make reference to person and some do not;   what all employers across Canada need to do is take every precaution when dealing with any type of workplace accident; this should also include when a non-worker accident occurs.  Proper accident and incident reporting procedures should be developed and in place complete with employer, employee, manager/supervisor, and Health and Safety representative responsibilities in order to ensure Health and Safety Legislation and Provincial Governance Compliance is met.

Lynne Bard is President and Senior Consultant of Beyond Rewards Inc, a preeminent human resources, risk management, safety, health and training consulting firm based in Guelph, Ontario.  Contact Lynne at info@beyondrewards.ca

 

 

 

 

Lynne Bard, BA (Honours), C.H.R.P., CES

Human Resources, Safety & Risk Management Experts

Taking the Complexity out of Compliance

President

Beyond Rewards Inc.

Phone: 519-821-7440

Cell: 519-830-7480

email: lbard@beyondrewards.ca

Pandemic or Panic

Pandemic or Panic

Over three years have transpired since we started hearing about the H1N1 and the devastating effects it could have on our society.  Was it as devastating as we first thought it might be?  The WHO is admitting to not communicating the threat of the H1N1 clearly; identifying the communication issues due to the many unanswerable questions of a new virus.  These unanswerable questions lead to uncertainty, creating a void that lead to fear and confusion around the globe.  Our questions and concerns were not addressed as we would have expected neither from our health agencies nor from our government bodies. 

Scientists noted that the virus was spreading quickly around the globe but as it was a new strain, they could not predict how it would behave, how deadly or virulent it would become.  Predictions are expected to be instantaneous in today’s society.  People want immediate answers – this was not evident in the communications around the H1N1 Virus.

As we all know, there is much room for improvement in the processes, communications and immediate responses expected when an international organization such as The WHO (World Health Organization) announces a pandemic of this magnitude as a “threat to all humanity”. So, how can it be improved? 

That said, if The WHO did not announce the H1N1 as a “threat to all humanity” and the recommendations around international travel to Mexico and other hotspots had not been identified and actions taken to quarantine those who did travel had not taken place, would the virus have been much worse? Would we all have continued to travel to Mexico and other hotspots around the world, taking the risk and spreading the virus had they not been so quick to communicate the unknown skepticism about the H1N1 Virus?

The WHO is conducting research through a Toronto based firm to find out if warnings such as these not only impacted on trade, but if they were effective in preventing the spread of disease.  The study will also assist governments in development of improved quarantine measures and screening measures in airports and boarder crossings.

The H1N1 has but merely vanished in Canada.  There have been very few cases of late – 14 cases since the beginning of 2010 and two deaths.  In total as at April 12, 2010 there were 428 deaths in Canada from the H1N1 Virus; worldwide there were a total of 17,700 deaths.  Will it come back with a vengeance – again unanswered questions that can only be speculated?

There is widespread concern as to whether this virus really existed as a pandemic or a scare tactic to increase revenues for large pharmaceutical companies – creating panic.  With any international crisis comes skepticism.  Although our governments are not perfect, neither are we.  We put our trust and faith in those who surround us, who govern us – if we elected them or not into the seats of power within our countries.  That said, whether it is a pandemic or another international or local catastrophic event, planning and preparing for the worst is not only the responsibility of our governments, but of each one of us on the face of this earth.

It is important that we all take part in ensuring that the processes are improved upon by being prepared ourselves.  Don’t put off preparing your businesses and families for the next Pandemic that scientists predict will happen again in the near future!  In preparing take into account any unforeseen catastrophe – be it a flood, fire, tornado, pandemic or hurricane.  A business continuity plan should address all of these things and more, as should a personal response plan for your families.

Our society tends to be reactive and not proactive.  If another pandemic was to hit and this time more virulent than the H1N1 of 2009/2010, would it not be better to be prepared?  If you were to have a flood or fire in your place of business are you prepared to continue business despite the set backs – do you have a plan in place?  It is up to each one of us as business owners to ensure the success of our own businesses, the safety of our own staff by having policies, procedures and plans in place to address matters of safety and business continuity in the workplace.  It is the responsibility of each of us as parents, as responsible citizens to prepare and address issues in a proactive manner. 

No one knows for sure when the next influenza pandemic will strike. It's always better to have the controls for preparation of an international pandemic at an early stage because whole populations are vulnerable and it is not possible to halt the spread of a pandemic. Slowing to minimize the casualties is worth the efforts and possible panic to save lives.

ARE YOU PREPARED?

Lynne Bard, BA (Honours), C.H.R.P., CES

Human Resources, Safety & Risk Management Experts

Taking the Complexity out of Compliance

President

Beyond Rewards Inc.

Phone: 519-821-7440

Cell: 519-830-7480

mail: lbard@beyondrewards.ca

 

Changes to Alberta's OHS Act

Changes to Alberta's OHS Act

In addition to Ontario and Saskatchewan's significant changes to their OHS, Alberta's OHS Act changes took effect on December 10th, 2012 when it received royal assent. Bill 6 amends the safety act in six areas as follows:

1. Orders: Bill 6 now allows orders electronically - fax or email, in accordance with the regulation as well as orders served on a person in authority in the organization as they represent the organization.

2. OHS Council: the OHS Council now has the duty to hear administrative penalty appeals in addition to the OHS orders appeals.

3. Creative Sentences: Outstanding amounts of sentence owing to a third party, is deemed to be a fine imposed on that person, enforcing payment under the Provincial Offences Procedures Act.

4. Administrative Penalties: Bill 6 now allows the department the ability to impose administrative penalties for OHS violations. The maximum penalty per violation, per day is set at $10,000. Penalties can apply to workers, contractors, employers, suppliers and to a prime contractor.

5. Prime Contractors: Bill 6 stipulates that where there are two or more employers at a work site whose activities have a health and safety impact on each other, a prime contractor is a requirement.

6. OHS Officers: Officers have the authority to ask anyone at a work site to identify themselves as well as ask the employer to identify its workers. Interference with an officer exercising their power under the Act will be issued an offence under the act.

The Minister of the Environment introduced this bill to address repeat offenders. Repeat offenders are an issue in all provinces. For more information on this bill, go to: http://www.assembly.ab.ca/net/index.aspx?p=bills_status&selectbill=006

Lynne Bard, BA (Honours), C.H.R.P., CES

Human Resources, Safety & Risk Management Experts

Taking the Complexity out of Compliance

President

Beyond Rewards Inc.

Phone: 519-821-7440

Cell: 519-830-7480

mail: lbard@beyondrewards.ca

MANDATORY WSIB COVERAGE IS HERE!

 

In a battle to implement controls in the underground economy, WSIB Mandatory Coverage is here in Ontario for the Construction Sector. What does this mean for the industry - extention of compulsory coverage for independent operators, partners and executive officers of companies that work in the construction sector.

This change will increase revenues by $1.5 to $2.5 billion to federal and provincial governments. Worker safety will be increased through regulatory governance of independent contractors verses employee contracts by reducing the number of Construction Companies that classify workers as independant contractors.

This change does however come with some exemptions. If you are an independent operator and you work solely in the home renovation business you are exempt from having to pay into WSIB. It is recommended that you apply for this exemption and get a letter in writing that you are within an exempt group.

To understand further how the exemptions worka, go to: WSIB - FAQ- Mandatory Coverage in Construction

This change took affect January 1, 2013 for the following in the construction sector:
•independent operators,
•sole proprietors,
•partners in partnerships and
•executive officers in corporations.

Although many independent operators may have private coverage, this does not exempt you from the new WSIB mandatory coverage in Ontario.

Don't wait until you are audited. Call them today to find out if you are exempt and request an exemption letter be sent to you.

http://www.wsib.on.ca/en/community/WSIB/230/ArticleDetail/24338?vgnextoid=eddd82bd67344310VgnVCM100000469c710aRCRD#3

Lynne Bard, BA (Honours), C.H.R.P., CES

Human Resources, Safety & Risk Management Experts

Taking the Complexity out of Compliance

President

Beyond Rewards Inc.

Phone: 519-821-7440

Cell: 519-830-7480

mail: lbard@beyondrewards.ca

Environmental Impacts

Planning for business continuity

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We have been hearing for years about climate change and a warming planet and increased storm warnings: "Climate change is already with us. Scientific evidence shows that past emissions of greenhouse gases (GHG) are already affecting the Earth's climate," stated in the Organization for Economic Cooperation and Development Policy Brief February 2008. (as posted on oecd.org) This news has been ringing in our ears long before 2008; but have we really been listening?

Scientists are warning us and have for years that the weather is changing. A storm happens with its devastation and destruction and then it is gone, we clean up and we soon forget. Beyond the environmental climate the shadow of 9/11 is 10 years behind us and we have forgotten how devastating that day was and so easily fallen back to our old ways, or as the National Post said on September 6, 2011 "The United States has returned to its congenial pre-9/11 ways." We don't plan for these devastating events and then they are upon us unprepared. The weather is no different than the terrorist attacks they happen without much warning. (See Cover Story, page 8.)

What does this have to do with your business, you ask? Everything!

Without an emergency response or emergency action plan (often called a business continuity plan with the emergency response or action plan as an extension of the business continuity plan) your business will not as easily be able to survive or revive after a disaster occurs.

Emergencies and disasters can occur anytime, anyplace, without warning. By being prepared, you will be better able to act, minimizing the panic and confusion in the emergency situation and protect your workers. Emergencies and disasters influenced by outside sources such as weather or non-employees or other uncontrollable sources need to be addressed in your action planning process to ensure the safety of your workers and the continuance of your business.

For businesses that are able, set up for business continuity outside of the physical location - a satellite offices/locations, working from home, remote offices/locations, etc. If one location is down you can continue to work. If you server is backed up in multiple locations in multiple cities your data is backed up and you can continue to work but if it is in one location, you may be down for weeks, months or indefinitely.

Sample steps to take in the development of your Emergency Response Plan are: hazard identification/risk assessment; identification of emergency resources; development of your communication system; development of an administration plan; emergency response policy, procedure and program; communication of policy, procedures and program training; debriefing and post-traumatic stress procedure; rebuilding, restructuring, and regrouping (what that might entail if the business is partially or totally destroyed).

Accountability is important in the emergency response program you develop. Set up an Emergency Response Team. Ensure that your team is properly trained in their roles and responsibilities. Train all staff in emergency procedures.

The Occupational Health and Safety Act refers to emergency planning that is required for your workplace under certain jurisdictions; in Ontario, under Bill 168 Violence and Harassment, and in BC under OHSA 4.13-4.18; beyond that it is a good business practice to have a Business Continuity Plan in place.
 

 

Lynne Bard, BA (Honours), C.H.R.P., CES

Human Resources, Safety & Risk Management Experts

Taking the Complexity out of Compliance

President

Beyond Rewards Inc.

Phone: 519-821-7440

Cell: 519-830-7480

mail: lbard@beyondrewards.ca