Occupational Health and Safety Updates: Is Your Organization Compliant?

Transcription

1 Occupational Health and Safety Updates: Is Your Organization Compliant? Carissa Tanzola and Lisa Bolton CME: Workplace Safety, Health & Wellness Symposium March 19, Yonge Street Suite 3300 Toronto, Ontario M5B 2L7 Tel Fax Hour

2 Agenda Bill 146 Integrated Health and Safety Strategy Health and Safety Awareness Training Fall Protection Training Increasing Fines OHSA charges and trends Bill C-45 update Drug and Alcohol Testing 2

3 Bill 146 3

4 Bill 146 Stronger Workplaces for a Stronger Economy Act, 2013 Not yet law Introduced on December 4, 2013 Currently in Second Reading If adopted, will come into force in stages over 2 years 4

5 Bill 146 Omnibus Bill Proposes changes to: Workplace Safety and Insurance Act Employment Standards Act Occupational Health and Safety Act Ontario Labour Relations Act 5

6 Bill 146 Workplace Safety and Insurance Act: Pre Bill 146: Temporary help agencies are deemed to be the employer of the temporary worker [A]n employer who temporarily lends or hires out the services of a worker to another employer remains the employer of that worker. WSIAT Decision No 2186/09 (2010) 6

7 Bill 146 Workplace Safety and Insurance Act: Post Bill 146: If a temporary worker is injured while working for a client employer, the WSIB will: Deem wages paid by the agency to the worker to be paid by the client employer; 7

8 Bill 146 Workplace Safety and Insurance Act: Post Bill 146: If a temporary worker is injured while working for a client employer, the WSIB will: Attribute the injury and accident costs to the client employer (e.g. LOE, NEL, WT); and Adjust the client employer s surcharge and/or rebate accordingly 8

9 Bill 146 Otherwise client employer s workers Temp agency worker 9

10 Bill 146 Workplace Safety and Insurance Act: Unanswered questions: Which employer will be responsible for the premiums? Which employer has return to work/reemployment obligations? 10

11 Bill 146 Occupational Health and Safety Act: Proposes new definition of worker Current Definition (s. 1(1)): worker means a person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program 11

12 Bill 146 Occupational Health and Safety Act: Proposed Bill 146 Definition: worker means any of the following, but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program: 1. A person who performs work or supplies services for monetary compensation. 12

13 Bill 146 Occupational Health and Safety Act: Proposed Bill 146 Definition: 2. A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board that operates the school in which the student is enrolled. 13

14 Bill 146 Occupational Health and Safety Act: Proposed Bill 146 Definition: 3. A person who performs work or supplies services for no monetary compensation under a program approved by a college of applied arts and technology, university or other postsecondary institution. 14

15 Bill 146 Occupational Health and Safety Act: Proposed Bill 146 Definition: 4. A person who receives training from an employer, but who, under the Employment Standards Act, 2000, is not an employee for the purposes of that Act because the conditions set out in subsection 1 (2) of that Act have been met. 5. Such other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation. 15

16 Bill 146 Occupational Health and Safety Act: Don t forget R. v. Blue Mountain Blue Mountain operates ski resort in Collingwood, Ontario On December 23, 2007 a guest drowned in an unsupervised swimming pool Incident was never reported March 27, 2008, MOL Inspector issued order of compliance directing Blue Mountain to report 16

17 Bill 146 Occupational Health and Safety Act Don t forget R. v. Blue Mountain MOL s position: Pool was a workplace within the meaning of the Act Blue Mountain was required to report each time a person was fatally or critically injured at a workplace 17

18 Bill 146 Occupational Health and Safety Act Don t forget R. v. Blue Mountain Does not technically change definition of worker Provides insight into the protection of nonworkers 18

19 Bill 146 Occupational Health and Safety Act Don t forget R. v. Blue Mountain the Ministry must be notified of a death or critical injury at a site, and the requisite report provided, where there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at a workplace. 19

20 Bill 146 Employment Standards Act: Temporary help agencies and client employers become jointly and severally liable for worker s overtime pay and regular wages Temporary Agencies must track and record every hour worked by a worker and retain the records for 3 years 20

21 Bill 146 Employment Standards Act: Obligation to provide ESA poster to each employee within 30 days of Act coming into force or hire 21

22 Bill 146 Employment Standards Act: Extends time limit for recovery of unpaid wages to 2 years Elimination of $10, cap on recovery ESA Officers can direct employers to selfaudit to determine compliance with the Act 22

23 Bill 146 Ontario Labour Relations Act: Reduces the open period for raids and termination of bargaining rights in the construction industry from three months to two months 23

24 Bill 146 If Bill 146 becomes law, clients of temporary help agencies should: Strengthen indemnity clauses Review and update health and safety protocols and training Review the allocation of work between temporary workers and permanent employees 24

25 Integrated Health and Safety Strategy and Workplace Requirements 25

26 Integrated Health and Safety Strategy Introduced December 16, 2013 Seeks to transform Ontario s occupational health and safety system and eliminate preventable workplace injuries, illnesses and fatalities. Focus is awareness 26

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28 Integrated Health and Safety Strategy Prevention Starts Here Poster O. Reg. 297/13: Awareness Training Working at Heights Training more? 28

29 Integrated Health and Safety Strategy Prevention Starts Here Poster: Required since October 1, 2012 Health & Safety at Work: Prevention Starts Here poster must be displayed 29

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31 Integrated Health and Safety Strategy O. Reg. 297/13: Awareness Training: Announced November 15, 2013 Comes into effect July 1,

32 Integrated Health and Safety Strategy O. Reg. 297/13: Awareness Training: Employer s must: Ensure workers complete basic awareness training program as soon as reasonably possible Ensure supervisors complete basic awareness training program within 1 week of working as a supervisor Maintain record of training Provide training certificate 32

33 Integrated Health and Safety Strategy O. Reg. 297/13: Awareness Training: Worker Training: Must include instruction on: Duties and rights of workers Duties of employers and supervisors Common workplace hazards and illnesses Role of JHSC or Rep. Role of MOL, WSIB and H&S Associations WHMIS training 33

34 Integrated Health and Safety Strategy O. Reg. 297/13: Awareness Training: Supervisor training: Must include instruction on: Duties and rights of workers Duties of employers and supervisors How to identify, assess and manage hazards Role of JHSC or Rep. Role of MOL, WSIB and H&S Associations Sources of information 34

35 Integrated Health and Safety Strategy O. Reg. 297/13: Awareness Training: Exceptions Workers and supervisors do not have to be trained again if previously completed required training (with proof) 35

36 Integrated Health and Safety Strategy O. Reg. 297/13: Awareness Training: Online Resources Ministry has provided numerous free, online resources to assist If using your own, ensure they include Ministry material at a minimum Record Keeping Be prepared to demonstrate compliance keep training records for all workers 36

37 Integrated Health and Safety Strategy Working at Heights Training: Working at Heights Training Program Standard is being created Initially voluntary and applies to construction sector or construction activity Expected to become mandatory in summer of 2014 Will later be expanded to all sectors 37

38 Integrated Health and Safety Strategy Working at Heights Training: To set out training requirements for approved training programs Consultations from March 10 to April 24, 2014 Will focus on: Proposed standards for training providers Proposed regulatory amendments How to apply to other sectors 38

39 Increasing Fines 39

40 Increasing Fines Occupational Health and Safety Act Charges Fines are steadily increasing 2005 / / / / / / / /13 Convictions ,191 1,303 1, Fines (1,000,000) ~Fine/ Conviction (1,000)

41 Increasing Fines Sentencing factors: Size of the company involved Scope of the economic activity in issue Extent of actual and potential harm to the public, and Maximum penalty prescribed by statute Remorse Correction of the conditions leading to the accident Personal appearance of corporate executive in Court Profits realized by the offence 41

42 Increasing Fines Bill C-45 Act of representative combined with negligent omission of senior officer can attract criminal liability Criminal liability based on negligence standard No intent required Intent-based offences can also be established by the act of one 42

43 Increasing Fines Bill C-45 Not only senior management, includes Front line supervisors Lower level managers, and Joint Health & Safety Committee Obligation to protect all persons, not just workers 43

44 Increasing Fines Bill C-45 To date, there have been: 10 instances of Bill C-45 charges 3 individuals and 2 corporations convicted, so far 44

45 Increasing Fines R v. Fantini (DOA: April 19, 2004) R v. Hritchuk (DOA: February 10, 2005) R v. Transpave (DOA: October 11, 2005) *First conviction R v. Lilgert (DOA: March 22, 2006) The Bill C-45 charges were withdrawn after the supervisor pled guilty to 3 of the 8 Occupational Health and Safety Act charges Fine of $50,000 plus VFS Individual pled guilty to unlawfully causing bodily harm but received an absolute discharge Corporation was fined $10,000 under Quebec s occupational health and safety regulations in separate proceeding Corporation plead guilty of criminal negligence causing death Fined $100,000 plus VFS (joint sentence) Individual convicted of criminal negligence causing death Sentenced to 4 years; 10 year prohibition from operating a vessel; appeal filed 45

46 Increasing Fines R v. Scrocca (DOA: June 12, 2006 ) R. v. Gagne DOA: October 13, 2006 R v. Millennium Crane Rentals et al (DOA: April 16, 2009) Individual convicted of criminal negligence causing death Sentenced to 2 years less a day (suspended and to be served in community with conditions) 2 Individuals charged with criminal negligence causing death Acquitted Individual and Employer charged with criminal negligence causing death Charges withdrawn (no conclusive evidence) Fined $70,000 plus VFS for OHSA charge 46

47 Increasing Fines R v. Metron Construction Corporation et al (DOA: December 24, 2009) R. v. Kazenelson (DOA: December 24, 2009) R. v. Wood (DOA: June 23, 2012) Corporation plead guilty and was originally fined $200,000 plus VFS Court of Appeal increased fine to $750,000 plus VFS (open sentencing) Individual fined $90,000 plus VFS for 4 OHSA charges Project Supervisor for Metron Construction Proceeding to trial for charges of criminal negligence causing death Two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. First Court appearance expected March 25,

48 Increasing Fines Metron Corporation: Corporation plead guilty and originally fined $200,000 plus VFS in open sentencing Ontario Court of Appeal (ONCA) increased fine to $750,000 plus VFS 48

49 Increasing Fines Metron Corporation: Why did the ONCA increase the fine to such an extent? Trial court should not have relied upon OHSA cases Trial court should not have put such emphasis on the corporation s ability to pay The original sentence did not fit the circumstances 49

50 Increasing Fines Metron Corporation: [89] In my view, while the sentencing judge was entitled to consider the range of sentences under the OHSA, reliance on the OHSA regulatory jurisprudence and the resulting imposition of a $200,000 fine (which itself was at the lower end of the OHSA range for fatality cases) reflect a failure to appreciate the higher degree of moral blameworthiness and gravity associated with the respondent s criminal conviction for criminal negligence causing death and the principle of proportionality found in s of the Code. This was in error. [90] I agree with the appellant that a corporation should not be permitted to distance itself from culpability due to the corporate individual s rank on the corporate ladder or level of management responsibility. 50

51 Increasing Fines Metron Corporation: [108] The economic viability of a corporation is properly a factor to be considered but it is not determinative. Certainly it is not a condition precedent to the imposition of a fine nor does it necessarily dictate the quantum of the fine. 51

52 Increasing Fines Metron Corporation: [114] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here, the respondent was convicted of criminal negligence causing death. Six workers were involved, four of whom met their deaths. One worker was seriously and permanently injured. The victims were young and had families, some with young children. The respondent had been operating with the faulty staging materials for more than two months. [115] A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business Denunciation and deterrence should have received greater emphasis. They did not. The sentence was demonstrably unfit. 52

53 Drug and Alcohol Testing 53

54 Drug and Alcohol Issues Drug and alcohol use in the workplace may be linked with numerous problems Unsafe work practices Absenteeism Use of sick time Poor decision making Production performance/errors 54

55 Drug and Alcohol Issues Human Rights Considerations: Drug and alcohol addiction is a disability under the Human Rights Code Employment decisions based on positive test result are discriminatory if disability exists To justify decision must demonstrate: Bona fide occupational requirement Accommodation to point of undue hardship 55

56 Drug and Alcohol Issues Privacy (Unionized) Considerations: Must balance employee s privacy against employer s legitimate interest in maintaining workplace free of drugs and alcohol use Highly personal information Bodily integrity Arbitrators balancing approach Privacy vs. safety 56

57 Drug and Alcohol Testing Testing has limited value Does not always test for current impairment Results are often not available immediately False positives 57

58 Drug and Alcohol Testing Methods Method What is being tested Current impairment? Limitations Breathalyzer Alcohol Yes Doesn t test for drugs Urinalysis Hair analysis Saliva Drugs and Alcohol Drugs and Alcohol Drugs and Alcohol No No Maybe Tests recent use but not quantity, False positives, Delay, Tests recent use, Cultural differences, Expensive, Delay Delay, possibility of false positives Blood Drugs and Alcohol Yes Delay in results 58

59 Drug and Alcohol Testing Pre-Employment Testing: Generally, not permissible, even for safety sensitive workplace/position Employer must prove policy is a bona fide occupational requirement ( BFOR ) Purpose must be rationally connected to job performance Adopted in good faith and necessary to accomplish particular goal 59

60 Drug and Alcohol Testing Pre-Employment Testing: Difficult to establish BFOR because test results retrospective Examples where testing may be permitted: Reasonable cause to suspect substance abuse Candidate discloses substance abuse Pre-employment medical indicates abuse Cross-border workers subject to US legal requirements 60

61 Drug and Alcohol Testing Pre-Employment Testing: If candidate fails test Opportunity for further medical assessment Be prepared to accommodate if addiction 61

62 Drug and Alcohol Testing Testing During Employment: Limited drug and alcohol testing may be permissible for safety-sensitive positions in the following circumstances: Reasonable belief of impairment Post-accident or near miss As a component of a return to work program Where significant workplace problem 62

63 Drug and Alcohol Testing Post Incident Testing: Permitted for safety-sensitive positions Random testing possible for known drug users Only permitted for non safety-sensitive positions: If warranted based on on-the-job behaviour If part of a larger demonstrated drug or alcohol abuse problem If testing carried out under reasonable conditions 63

64 Drug and Alcohol Testing Return to Work Testing: Typically permitted for safety-sensitive position May be permitted for non safety-sensitive position Rehabilitative testing requires balance between Privacy/human rights Safety 64

65 Drug and Alcohol Testing Return to Work Testing: Testing not necessarily discriminatory if: Validly connected to rehabilitation and monitoring purpose Used to demonstrate commitment to rehabilitation program 65

66 Drug and Alcohol Testing Return to Work Testing: If employee fails test Employer still must accommodate up to the point of undue hardship Even if testing is a condition of last chance agreement signed by employee 66

67 Drug and Alcohol Testing Random Alcohol Testing: CEP, Local 30 v. Irving Pulp & Paper Paper mill was a safety sensitive environment Under policy 10% of workforce randomly selected for breathalyzer Union challenged as breach of employee privacy rights Irving argued policy was necessary for workplace safety, cited past alcohol incidents 67

68 Drug and Alcohol Testing Random Alcohol Testing: CEP, Local 30 v. Irving Pulp & Paper SCC balanced privacy and employer s right to protect workplace interests Justifiable testing requires: Reasonable belief of current impairment; Accident or near miss ; Return-to-work testing after treatment; or Evidence of a generalized alcohol abuse 68

69 Drug and Alcohol Testing Random Drug Testing : Urine testing not permitted because: Does not detect current or future impairment Does not detect quantity of substance consumed Saliva testing not permitted because: Test results not available immediately therefore not justified to determine imminent safety risk 69

70 Drug and Alcohol Testing Critical Considerations for Testing in Any Workplace Establish policies that make employees aware of expectations and potential for monitoring Gather evidence to support need for monitoring; Is there a problem; What benefit will be gained? Consider whether the means of monitoring chosen is the least intrusive method AND can achieve the goal Don t forget about Human Rights obligations 70

71 QUESTIONS? 71

72 250 Yonge Street, Suite 3300 Toronto, Ontario, Canada M5B 2L Phone Hour Fax 72

73 The information contained in this presentation is provided for general information purposes only and does not constitute legal or other professional advice. Reading this presentation does not create a lawyer-client relationship with Sherrard Kuzz LLP. Readers are advised to seek specific legal advice from members of Sherrard Kuzz LLP (or alternate legal counsel) in relation to any decision or course of action contemplated. 73