Class 2 Notes.docx

Historical and Legal Aspects of OHS Class 2 – Sept 12th, 2023 How have perspectives shifted and developed? What are key legal considerations in OHS? What is the role of Workers’ Compensation? Learning Objectives Outline key historical developments and current trends in OHS Describe the role of law...

Historical and Legal Aspects of OHS Class 2 – Sept 12th, 2023 How have perspectives shifted and developed? What are key legal considerations in OHS? What is the role of Workers’ Compensation? Learning Objectives Outline key historical developments and current trends in OHS Describe the role of law in OHS Explain modern corporate liability Highlight the role of workers compensation Historical Development Of OHS A brief synopsis Changing perspectives on Risk & Liability Until the early 20th century, the prevailing model for workplace hazards was the assumption of risk Belief that a worker accepted the risks of employment when he or she accepted a job Associated is the view that injuries were caused by accident-prone people Accident proneness The notion that some individuals are inherently more likely than others to be involved in accidents based on individual characteristics OHS and the Law What is an Act? Federal, provincial, or territorial law that constitutes basic regulatory mechanism for occupational health and safety What is a Regulation? Explain how general intent of the act will be applied in specific circumstances What are Guidelines and Policies? More specific rules that are not legally enforceable unless referred to in a regulation or act What are Standards and Codes? Provide practical guidance on the implementation of OHS practices; often established by agencies such as the CSA or ILO The Scope of OHS Legislation All OHS legislation includes the following elements: An act Powers of enforcement The right of workers to refuse and do unsafe work Protection of workers from reprisals Duties and responsibilities assigned to employers and others OHS Acts Set the minimum requirements of OHS within each jurisdiction Set boundaries for application of each act, noting any exclusions Outline mandatory components of OHS programming within its jurisdiction Articulate duties for major stakeholders Stakeholder Duties & Responsibilities General Duty Primary duty directly articulated in the OHS Act OHS acts across Canada have the general duty provision requiring employers to take every reasonable precaution to ensure employee safety (remember due diligence!) Prescribed Duty A particular duty to be undertaken because of health and safety regulation Employer Primary contractors overseeing projects have largely the same duties as employers Employer duties: Take every reasonable precaution to ensure employee safety Appoint a competent supervisor Provide information in a medical emergency Inform supervisors and workers of possible hazards Post the OH&S act in the workplace Prepare and maintain health and safety policy and review annually Prepare policies regarding workplace violence and workplace harassment Supervisor Anyone who has charge of a workplace and authority over a worker Supervisor duties: Ensuring health and safety of workers under their supervision Ensuring workers comply with OHS regulations Ensuring workers use or wear safety equipment, devices, or clothing Advising workers of possible hazards Workers Worker duties: Take reasonable precautions to ensure their own and others’ safety Comply with OHS Act, regulations, and policies Properly use safety equipment provided Report hazards, such as defective equipment, to a supervisor Report any contraventions of the act or regulations Joint Health and Safety Committees Required by law in most jurisdictions Where not required, there are special provisions for committees to be created Help enact the internal responsibility system (IRS) The system of shared responsibility for health and safety that is the basis for most Canadian OHS legislation Primary responsibility rests with workplace and not government regulators Backbone of Canadian OHS legislation Provide non-adversarial atmosphere in which labour and management can work to create a healthier workplace OHS acts regulate the formation, composition, training, and certification requirements for the JHSC Duties of the JHSC Hazard recognition, risk assessments, record keeping, and responding to employee concerns Key features of effective JHSCs being appropriately trained, operating in a workplace where senior management is supportive, being empowered in their work, visibility in the workplace, good communication with the workforce, and have adequate resources Work Refusals Every jurisdiction provides workers the right to refuse unsafe work without fear of reprisal Can refuse work tasks if they have reasonable cause to believe the action would bring harm to themselves or to others Workers should follow established procedures to report a work refusal General Steps: Alert employer to dangers associated with work indicate intentions to refuse work due to the reasonable assumption that preforming the task is unsafe Allow employer to investigate & remedy the situation The refusal, investigation, and remedy must be recorded, and a report must be provided to the employee Limits: Essentially, a worker does not have right to refuse unsafe work if: That work is a normal condition of employment The refusal places another person’s life in jeopardy Workplace Hazardous Materials Information System (WHMIS) WHMIS legislation (1988) promoted workers’ right to know about chemical hazards in the workplace using: Labels to alert the worker that a container contains a potentially hazardous product Material safety data sheets outlining a product’s potentially hazardous ingredient(s) and safe handling procedures Employee training Corporate Liability For OHS under the Criminal Code Bill C-45, sometimes called the Westray legislation Passed in 2003 and became law in 2004 Named after the Westray mine tragedy This legislation added sections to the Criminal Code of Canada that make company executives more accountable when workers are killed or injured on the job as a result of management negligence This legislation makes a company responsible for: The actions of those who oversee day-to-day operations (e.g., mid-level managers and supervisors) Managers (executive or operational) who intentionally commit, or have employees commit, crimes to benefit the organization Managers who do not take action when they become aware of offences being committed The actions of managers who demonstrate a criminal lack of care (i.e., criminal negligence) Passing of Bill C-45 into law meant the following additions to the Criminal Code: Section 217.1: Those in authority for workers have a responsibility to take reasonable steps to protect those workers from harm (applies due diligence to executives as well) Sections 22.1 and 22.2: Corporations can be criminally liable for negligence and other offences There have been several convictions, including large fines and prison sentences, under this law Workers’ Compensation Form of insurance governed by an act of parliament to help workers injured on the job to return to work Ensures injured worker receives: First aid treatment Benefits while at home recuperating Proper treatment for any injuries Rehabilitation Why do you think workers compensation is important? Gives stability to employees Gives manager and executives alerts of whats going on Keep employers accountable for their actions or actions not taken Legal protection Key aspects of Workers’ compensation Collective liability for employers Where all employers in a class or other rate group are liable for the costs of any or all accidents and occupational diseases that occur in the operations of those employers Compensation for workers despite employer’s financial condition Compensation based on loss of earnings “No-fault” system No fault system: employee or organization are not at fault for anything Removes legal liability Nonadversarial process: Little or no recourse in the courts Regulations and responsibilities of WCBs Classify employers to ensure consistency Decide whether an individual is classified as a worker, a subcontractor, or an employer, as each class has different conditions System can pay benefits if worker is affected by an industrial disease that has resulted from his or her occupation Injured workers will receive… payment while off work and all medical bills paid if injury happened at work and because of work pension if disability is or becomes permanent benefits if he or she cannot earn some amount of money earned before incident Compensation Rates and Methods Amount of compensation: Two methods Five jurisdictions base on a percentage (generally 90%) of net earnings The remaining jurisdictions base on a percentage of average earnings Jurisdictions like Nova Scotia have used both methods depending on the date of the incident Economic Loss Wage or earnings loss when workers can no longer earn the same amount of money that they were earning before the incident E.g., Worker earning $20/hr before incident and $10/hr after incident; potential compensation is $10/hr Non-Economic Loss Injured worker could receive non-economic loss if unable to perform some of the things that they had been able to do before the incident E.g., Worker unable to golf as a result of the incident; a benefit could be paid for that non-economic loss Medical Aid And Incident Prevention Employees who sustain a work-related injury are compensated for loss of earnings and loss of functional capacity Limit of ability or dexterity depending on seriousness of an injury Workers are no longer able to perform some of their job duties, such as lifting, twisting, or bending, and are considered to have suffered loss of functional capacity for which benefits are payable Social Goals Of Workers’ Comp Two main goals: Provide services to prevent injuries or reduce psychological impact of injuries when they occur Provide training and development to prepare an injured worker to return to work Provision for second injuries Second Injury Fund Facilitates the re-employment of disabled workers Without a provision for multiple injuries, employers might be tempted to discriminate against workers with disabilities Additional injury could make employer responsible for a far more serious disability than if the worker had not had a prior injury Rehabilitation Vocational Rehabilitation Helps injured workers return to their place of employment or find similar work elsewhere Physical Rehabilitation Restores workers’ physical function Social Rehabilitation Psychological and practical services to help workers with severe disabilities cope with daily life Occupational Diseases & Work Stress Occupational diseases include: Various cancers Skin diseases Allergic reactions to materials and components in the workplace Latency Period Time between exposure to a cause and development of a disease Three groups of stress-related disabilities: Physical injury or occupational disease leading to mental disability Mental stress resulting in a physical disability, traumatic occurrence, or series of occurrences Mental stress resulting in a mental condition Assessments Employers are grouped together according to type of operation or industry in which they are engaged, and they are assessed on that basis. Employers are divided into three categories: Contribute to incident fund and benefit from collective liability Individually liable for their own employees’ incidents Certain low-risk industries excluded under various acts across the country (e.g., banks in Quebec) Injury Frequency and Severity Rates Some organizations calculate injury frequency and severity rates to benchmark and track their own safety performance. In some cases WCBs can also provide this information to companies. This information helps organizations benchmark their health and safety. Calculating Injury Frequency To determine the frequency injury ratio, consider that the frequency is the number of medical aid injuries relative to the number of hours worked expressed in a ratio of 200 000 Calculating Injury Severity To determine the severity injury ratio, consider that the total number of days lost due to injuries relative to the number of hours worked expressed in a ratio of 200 000 Calculating Injury Frequency Frequency = (number of injuries / total hours worked) x 200,000 Step 1: calculate total # of hours worked (Days x people x hour shifts) E.g., a company employs 300 people who work 8-hour shifts for 250 days in one year 250 (days) x 300 (people) x 8 (hour shifts) = 600,000 total hours worked Step II: calculate number of injuries (sum of all injury types) E.g., this company has a record of 6 medical-aid injuries with no lost time, 15 minor injuries with 5 total days lost, 3 major injuries with 55 total days lost (6 + 15 + 3) = 24 Step III: calculate injury frequency (24 / 600,000) * 200,000 = 8 Calculating Injury Severity Severity = (number of days lost to injuries/total hours worked) x 200,000 Step 1: calculate total # of hours worked (Days x people x hour shifts) E.g., a company employs 300 people who work 8-hour shifts for 250 days in one year 250 (days) x 300 (people) x 8 (hour shifts) = 600,000 total hours worked Step II: calculate total days lost (sum of days lost due to injury) E.g., this company has a record of 15 minor injuries with 5 total days lost, 3 major injuries with 55 total days lost (5 + 55) = 60 Step III: calculate injury severity (60 / 600,000) * 200,000 = 20 Experience Rating Incident insurance premium pricing scheme that considers the cost experience of employer Firms with lower-than-average incident costs per worker pay lower premiums than firms with above-average incident costs Safer employer will face lower workers’ compensation costs given two similar firms Primary effect is financial incentive for relatively safe firms Reporting Requirements Employers must report all workplace injuries to WCB within a certain time. Employer report collects information about: Nature of employment relationship Employee’s salary and hours of work Nature of incident and injury Extent of time loss and medical treatment Noncompliance When employers and employees fail to comply with the act in their jurisdiction, then penalties and fines can be applied. Penalties and fines vary, as penalties do not require court proceedings. Employers could pay upward of $50 000. The WCB Claims Process To process a claim when a worker is injured, WCB needs information from three parties: Employer Employee Physician Details vary from jurisdiction to jurisdiction.