by Dave Rebbitt
Marijuana debate is out, COR overhaul is in
It looks like an interesting year ahead in 2020. Some trends have waned, and others still persist, but regardless, there are always new ones to keep the health and safety occupation interesting.
The marijuana debate seems to be over
Marijuana is legal, and there has been a ripple, but the panic seems to be over. Out West, we were a bit lucky since we already had things in place to assist, such as the Construction Owners Association of Alberta model for a safe workplace, which forms the basis for drug and alcohol policies and testing in Western Canada.
There is still a lot of misinformation out there, and safety practitioners have had to educate themselves. Things are a bit messy as it is unclear where organizations will put the responsibility for oversight of these processes. I have seen it reside with safety, HR, and operations.
A new safety designation had taken root
In 2019, the first Canadian Registered Safety Technicians (CRSTs) received their designations. The initial group was made up of applicants from all across Canada. The CRST is an important step towards becoming a recognized profession.
An overhaul of the Certificate of Recognition
The Certificate of Recognition (COR) is a popular program across western Canada from British Columbia to Manitoba. It originated in Alberta in the early 1980s. It gives employers a discount on compensation premiums if they can pass a third-party audit demonstrating a working safety program. WorkSafeBC undertook a review of the program beginning in 2017, with public consultation ending late in 2018.
The discussion paper from WorkSafeBC did not pull any punches and characterized the program as needing “more oversight and quality assurance.” There were concerns about how the program operated in practice, and some stakeholders raised serious concerns. Changes in British Columbia are pending.
Alberta is the home of COR, and it is expected that such a review is also underway and will move to the public eye in 2020 since the government was constrained from public consultation in light of the recent election in Alberta.
The Infrastructure Health and Safety Association also offers the COR program in Ontario.
Is criminal prosecution a real option for safety offences?
I wrote last year about several cases where employers or business owners were being prosecuted for manslaughter as a result of violations of the health and safety legislation that resulted in the death of an employee. The Fournier case in Quebec was particularly interesting. The court agreed that if someone dies while you are breaking the law (in this case, OHS law), then it is manslaughter.
Police services are also showing interest in moving towards a criminal investigation in cases where they see that such an offence has resulted in a fatality.
Crown prosecutors have not jumped aboard for some good reasons. Criminal trials are more complex, longer and more costly. It really comes down to the argument on what is appropriate in the case. A fine is not always appropriate, and some courts (Alberta, in particular) have shown that they will incarcerate employers who break the law resulting in the death of a worker.
In May of 2019, the RCMP laid criminal negligence charges in the death of a worker on Kiewit work site that occurred in 2009. A WorkSafeBC investigation resulted in a $100,000 fine. This trend certainly is not dead.
Safety profession or professional safety?
There is a lot of talk about how safety becomes a profession in Canada, and this has broad support from Canadian Registered Safety Professionals. Our legislative landscape of provincial jurisdictions does not help. The Board of Canadian Registered Safety Professionals (BCRSP) has been having discussions with governments about this, but the way ahead remains somewhat foggy. Terms like designation, title protection and regulatory college are sometimes not as well defined or understood in each province as we might like. It remains for BCRSP to chart a clear path.
One of the present initiatives is the creation of an education standard by BCRSP. Currently, there is no clear standard for what must be taught, how it must be tested, or even who should instruct it. The exam blueprint only provides a high-level view of the competencies that safety practitioners should have. BCRSP hosts a National Education Symposium every two years with OHS educators to help move forward on the educational standards.
Harassment, bullying and #metoo
Virtually every Canadian province and territory has identified harassment as a workplace hazard under health and safety legislation. Most people think this is not a big issue, as this is something that has traditionally been handled by HR.
One of the reasons that many think this is not a large issue is because people who filed harassment complaints in the past were often let go with a cheque and a nondisclosure agreement. Now, the landscape has fundamentally changed.
Harassment complaints have a high probability of turning into lost-time claims in many provinces. These are not the usual claims, and costs often run well into six figures. There is a significant risk, how large is unclear.
Sexual harassment aside, as many as one in five employees have indicated they were harassed in the last year. Society is no longer turning a blind eye as we saw the CEO of McDonald's and another senior manager depart over a relationship the CEO had with an employee that violated company policy.
Many safety people think they can use traditional reporting and investigation tools for these cases. These may be better previous methods, but that assumption is wrong. These are different types of investigations and require a different approach. Such investigators can be reviewed and scrutinized by courts or arbitrators and found to be invalid. Doubtful? It has already occurred.
Currently, safety people do not receive any training in traditional programs on investigating workplace harassment, bullying and violence. Yet the stakes are just as high as any other investigation. Someone’s well being may rest on the findings.
Workplace violence – not what you think
It is unfortunate that workplace violence conjures up images of workplace shooting or other acts of extreme aggression. Workplace violence actually has a much more subtle definition. We think about protecting employees from external sources when the sources of workplace violence are often internal. Workplace violence is simple things like threats or the threat or implied use of physical force. In most cases, this is based on the employee's perception of danger.
Health and safety practitioners will be challenged in assessing the risk of workplace violence and identifying appropriate risk or hazard controls. Legislation encompassing domestic violence adds to the difficulty.
Regulators face challenges
The Auditor General of Ontario indicated in a report last year that “The ministry’s enforcement efforts are not preventing many employers from continuing the same unsafe practices.”
It is not the first time a regulator has been cast in a poor light. Consider years past when WorkSafeBC was vilified over things like the case mentioned above, or the Burns Lake and Prince George sawmill explosions. Alberta had its own cases where the regulator was criticized for rarely charging employers in fatality cases and failing to collect fines.
Regulators are being challenged to show competency and effective oversight of themselves and even the safe work associations they fund. In Ontario, which is by no means unique, the Auditor General indicates the ministry “does not know how effective the associations have been at helping to prevent occupational injury or disease.”
The public expects regulators to carry a big stick, but many are suffering an inadvertent identity crisis. They try to assist employers while holding them accountable, a balancing act that does not appear to be effective. Safe work associations are normally there to assist employers. The regulator may unconsciously attempt both roles. This makes them less effective in their enforcement role and serial offenders much bolder.
Regulators also seem ill-equipped to handle the new harassment, bullying and violence complaints.
Your WCB premiums will probably rise
Things like costs invariably go up. However, workers’ compensation board (WCB) rates are sure to be affected by workplace bullying, harassment and violence claims. In the provinces where these are workplace hazards, the compensation organizations may be accepting claims for psychological injuries.
Many of these claims are lost time. Not a mere $10,000 but $100,000 and more.
Compensation organizations must fund past, current, and future claims. Larger organizations that do not think they have a harassment problem are probably mistaken. Companies should be proactive as there is considerable risk exposure.
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