Ch. 9: Health and Safety

Learning outcomes

After this chapter you should be able to: describe employer and employee obligations regarding Occupational Health and Safety (OHS); explain the impact of non-compliance; explain health concerns that can affect employees at work; list the three rights of workers; explain the elements of WHMIS 2015; identify the pictograms on product labels; explain how to identify a hazard at work; and explain the steps and reporting requirements of an incident investigation.

9.1 Introduction to occupational health and safety legislation

Since the 1970s the federal, provincial and territorial governments have all passed OHS laws that give rights to and impose duties on workers and employers in order to reduce workplace injury. Because of the division of powers in the Canadian constitution there are 14 jurisdictions: federal, 10 provincial and 3 territorial. A jurisdiction is a geographic district or industry sector that falls under the authority of Parliament or a provincial or territorial legislature.

Most employers and workers fall under the OHS law of the province or territory where they work. A small part of the workforce (the book mentions about 10% in one place and about 6% in another; the remaining 94% falls under provincial or territorial law) is covered by the federal Canada Labour Code: employees of the federal government and workers in industries that are interprovincial by nature, such as banking, telecommunications, interprovincial transport and uranium mining.

What does the law say? At federal level, the Canada Labour Code, and specifically the Canada Occupational Health and Safety Regulations, set out what employers and employees are responsible for. OHS falls under both federal and provincial authority. Health Canada coordinates the Workplace Hazardous Materials Information System (WHMIS), keeps track of radiation exposure at work and offers employee assistance and occupational health services to federal staff. In Ontario, the Occupational Health and Safety Act (OHSA) lays down best practices and the steps management and staff should take. Compliance with the OHSA (prevention) is overseen by the Ministry of Labour, Training and Skills Development, which cooperates with other health partners and with the Workplace Safety and Insurance Board (WSIB).

9.2 Rights and responsibilities

Everyone shares responsibility for safety, yet HR has a central part: it sets standards, ensures OHS laws are respected and keeps track of accidents at work. Any strategic HRM plan should give health and safety real weight. OHS legislation is made up of rights and responsibilities and rests on the internal responsibility system and on due diligence.

Reasonably practicable means taking precautions that are not only possible but also suitable or rational in the particular situation. Whether an employer met this standard is judged with the due diligence test.

Due diligence matters for two reasons: it prevents injuries by controlling hazards, and if an injury still happens, an employer that took these steps can use due diligence as a defence against penalties under OHS law.

Three rights of the worker. To balance the power employers get under the IRS, workers have three safety rights:

Responsibilities in Ontario (examples from the book):

A common misperception is that only employers have obligations; employees also have legal responsibilities.

COVID-19 and OHS. Early in the pandemic there was little awareness of the safety measures needed to protect people; the situation in Quebec long-term care homes (staffing and PPE problems) showed how important it is to understand risks. Ontario worked with federal and provincial health agencies on plans, awareness and information tools.

9.3 Record keeping and tracking incidents

Keeping a record does not mean the employee or the company is at fault, and it does not mean the employee is automatically eligible for workers' compensation. Record keeping mainly concerns the incidence rate: the number of injuries and illnesses per 100 full-time employees per year.

Because the rate is independent of company size, HR can compare it with other companies in the same industry. If it is above the industry average, HR might develop safety training.

Liabilities: the Westray Law (former Bill C-45). Companies may face legal and even criminal responsibility for breaches of health and safety rules. Bill C-45, which amended the Criminal Code on the criminal liability of organizations, took effect on 31 March 2004. It updated the way corporate criminal liability for deaths and injuries at work is determined. The bill:

• laid down how criminal liability for what their representatives do is assigned to organizations, corporations included;
• imposed a legal duty on everyone who directs the work of others to act reasonably to protect workers and the public;
• listed factors a court must consider when sentencing an organization;
• set out conditions of probation a court may impose on an organization.

An organization is criminally liable if a representative, acting within their authority, took part in the offence while a responsible senior officer departed markedly from the standard of care reasonably expected to prevent it. It is also liable if a senior officer acting within their authority took part with guilty intent (mens rea) and had others carry out the act, or failed to take reasonable steps to stop a representative from committing it. Under Section 217.1 of the Criminal Code, every organization and person who directs how others do their work must take all reasonable steps to prevent bodily harm to that worker or anyone else.

Examples. The Westray coal mine disaster in Nova Scotia (1992) killed 26 miners and led to the law. In 2008 the paving company Transpave was convicted of criminal negligence for an employee's death and fined $100,000 plus a $10,000 victim surcharge. A service manager at a Quebec auto dealership was charged after an employee caught fire while using a makeshift fuel pump that had been broken for years; he later pleaded guilty to unlawfully causing bodily harm.

Purpose of workers' compensation. The main aim is that the employee returns to his or her original job. If that is impossible because of permanent injury, four options are available:

1. Medical aid
2. Wage loss payments (when the worker's earning capacity has dropped)
3. Cash payouts (in case of permanent disability)
4. Vocational rehabilitation

9.4 Joint health and safety committee

Legal requirements for JHSCs differ by jurisdiction and organization size; smaller workplaces may only need a health and safety representative, so always check the applicable legislation. Unions can also negotiate mandatory JHSCs into collective agreements.

Tasks: assessing hazards, providing education and training, and investigating incidents. A JHSC may suggest ways to reduce hazards, but legally the employer decides how they are controlled; that makes JHSCs advisory, not decision-making bodies.

Effectiveness: worker participation tends to work better in larger workplaces and where there is a trade union. Workers in small firms or in workplaces relying on subcontracting and outsourcing are less likely to have a JHSC. Worker representatives who gather their own information, assert their knowledge of hazards, mobilize co-workers and propose alternative solutions are more effective than passive representatives. So employer safety behaviour is shaped both by workers' behaviour and by external enforcement by the state.

9.5 Powers, authority and legal implications

In the IRS the state's role is mainly education and enforcement. Governments run safety awareness campaigns and employ OHS officers who carry out worksite inspections to find and remedy violations. Inspections can be random, targeted (e.g. high-injury industries such as residential construction) or triggered by worker complaints. Inspectors also investigate serious injuries and fatalities.

Since the 2004 Criminal Code amendment, individuals and organizations directing work can be criminally prosecuted when a worker is injured and due diligence was not met. This is meant for cases of profound moral failure, such as the wanton disregard for safety at Westray. Only a handful of Criminal Code prosecutions have taken place, with few convictions.

9.6 Related legislation

OHS laws belong to a wider web of rules, a connected set of laws that restrict an employer's right to manage. Other laws with an effect on OHS are fire and building codes, rules for specific occupations, hazardous materials laws (both workplace and environment), employment standards, human rights and workers' compensation.

Hazardous products. WHMIS was set up under the federal Hazardous Products Act; employers must label hazardous materials and supply safety data sheets (SDS) (formerly material safety data sheets, MSDS) explaining the hazards. This backs up the right to know, and WHMIS is part of the OHS system in all 14 jurisdictions. Governments also set rules for particular occupations (such as training and permits for working with explosives) and adopt environmental laws on pollution of air, water and soil, on waste and on climate change; environmental and workplace hazards have no sharp dividing line.

Employment standards (also labour standards) acts set minimum terms and conditions of work, such as maximum hours and required rest breaks (preventing fatigue, which increases injury risk), limits on employing minors (more vulnerable to injury) and a ban on deducting the cost of customer theft from wages. They are unevenly enforced, which limits their contribution to injury prevention.

Human rights legislation bans discrimination based on grounds like gender, family status, age, sexual orientation and disability. This gives rise to the duty to accommodate: employers have to adapt work and workplaces, short of undue hardship, so that workers with temporary or permanent disabilities, injured workers included, are not discriminated against.

Workers' compensation. Historically, injury often meant poverty. Before workers' compensation, injured workers had to sue their employer, which they often could not afford and rarely won, leaving them dependent on family or charity. This unfairness caused social instability, so at the start of the 20th century provinces introduced workers' compensation with wage-loss benefits, medical treatment and vocational rehabilitation.

Ontario had Canada's first system, based on a 1913 Royal Commission led by William Meredith. The Meredith principles still underlie workers' compensation in Canada:

Each province and territory has its own WCB (Ontario's is the WSIB). When a serious work injury occurs (needing medical aid or keeping the worker home the next day), the worker, employer and doctor each have to report it. Whether a claim qualifies depends on the two-part "arises-and-occurs" test: an event arising out of the employment and occurring during it must have caused the injury. If this is unclear, the worker normally gets the benefit of the doubt. Some systems apply presumptive status: some diseases are tied so closely to particular work (farmer's lung, for example) that they count as work-related unless the opposite is shown.

Criticism of workers' compensation: claims tend to be viewed with suspicion and workers are at times put under surveillance, which can harm them psychologically; injured workers run a higher risk of poverty; and some jurisdictions reduce benefits when the WCB judges a worker employable even if no job turns up. Much of the concern is about funding and experience rating.

Experience rating is controversial. It reduces the number and length of claims, but it is unclear whether that reflects fewer or less severe injuries or gaming: maximizing rebates by means other than improving safety, such as suppressing claims or disputing claims, which undermines the no-fault principle.

Return to work (RTW) programs reintegrate injured workers, for example with modified duties, while they recover. Whether RTW itself is rehabilitative is hotly contested; less disputed is that it helps employers minimize claim costs and meet the duty to accommodate.

Accessibility for Ontarians with Disabilities Act (AODA). A 2005 Ontario law whose goal was a society without barriers, fully accessible to people with disabilities, by 1 January 2025, using accessibility standards for the public, private and non-profit sectors. A barrier is understood broadly: obstacles can be physical, architectural, informational, communicational, attitudinal, technological or rooted in policy. The law covers every organization under provincial jurisdiction, even a business with just one employee, with requirements that depend on size. Its five standards are found in the Integrated Accessibility Standards Regulation (IASR):

1. Customer Service Standard: accessible delivery of goods and services (e.g. service animals, individual support).
2. Information and Communications Standard: accessible formats, communication supports, accessible websites.
3. Employment Standard: equitable hiring, retention, accommodation and return-to-work processes.
4. Transportation Standard: accessible public transit (equipment, vehicles, communication).
5. Design of Public Spaces Standard: accessibility in new or redeveloped outdoor areas (sidewalks, trails, parking, amenities).

Compliance means accessibility policies, accessibility training and multi-year accessibility plans that are reviewed regularly; organizations may have to file compliance reports. The Act provides inspectors, penalties for non-compliance and periodic reviews of the law.

9.7 WHMIS

Employers have to shield workers from hazardous products (once known as controlled products). WHMIS (Workplace Hazardous Materials Information System) guards workers against the health effects of exposure. Worldwide rules on hazardous products are aligned through the GHS, short for Globally Harmonized System of Classification and Labelling of Chemicals; Canada followed suit in 2015 by moving to WHMIS 2015, which matches the GHS.

Labels. Two types:

Pictograms are graphics that let a worker instantly recognize the type of hazardous product and the immediate hazard (e.g. corrosive). They appear on the SDS and on the supplier label. WHMIS 2015 has 10 pictograms every worker must know.

Signal words. Every label contains a signal word: "Danger" or "Warning". Which one is used depends on the hazard classification of the product ("Danger" for the more severe hazards).

Safety Data Sheets. A supplier has to hand over an SDS before shipping. The employer keeps it where every worker can reach it 24 hours a day, 7 days a week (in a binder, on a computer or both). An SDS consists of 16 sections, and in Canada it has to exist in English and French. It covers first aid, use and storage.

Education and training. Every worker, existing or new, needs WHMIS 2015 training. Training covers where the SDSs are and how to read them, how to read supplier and workplace labels, the pictograms, and the rule that a worker who decants a product must immediately tell the supervisor so a workplace label can be attached. Training records must be quickly accessible, as a court, government agency, workers' compensation board, inspector or JHSC may ask for them.

Hazard groups, classes and categories.

9.8 Health hazards at work

Workplace hazards go beyond equipment and tools: they include illness, psychological health and issues linked to the type of work.

Other safety concerns: stress management, office injuries such as carpal tunnel syndrome, no-fragrance areas and provisions for communicable diseases such as COVID-19.

Cumulative trauma disorders (CTDs) are injuries to fingers, hands, arms or shoulders from repetitive motions such as typing. Carpal tunnel syndrome (CTS) is a common CTD affecting hand and wrist; contributing factors are the share of the workday at a computer, posture at the workstation and individual body features. CTDs are also seen in heavy texting and smartphone use. Special keyboards, chairs and other devices help prevent them; touch-based technology (e.g. Microsoft's "surface" technology) is one attempt to reduce CTD.

Chemical and fragrance sensitivities. Multiple chemical sensitivity (MCS), also called environmental illness (EI), means a person cannot tolerate a certain environmental chemical or group of foreign chemicals (with symptoms like headache, dizziness, breathing difficulties and muscle pain). A policy can be legally required and counts as best practice:

• A fragrance-free workplace policy (no scented lotions, hair products or perfumes).
• Limit air fresheners, cleaning agents and candles.
• Keep the ventilation system in good order.
• Provide workspaces with windows where possible, or an alternative workspace.
• Be careful with remodels and renovations that cause dust and odours.

A fragrance-free policy is usually placed under the dress code in the employee manual. Employers reluctant to impose one can simply request a fragrance-free zone by e-mail and other communication.

Chemicals. Chemicals must be labelled and employees must be able to cross-reference them with the safety data sheet on handling. WHMIS gives directives on labelling, use, management, storage and disposal. About 1,200 new chemicals are developed in North America each year, often with little known about their short- or long-term health effects, so employers need handling policies and proper warnings.

9.9 Stress

Job insecurity is a source of stress. Higher education usually brings more security (higher wages, benefits, pensions), while lower-wage contract, part-time, seasonal and freelance workers have less; more than half report strongly varying income and 60% have no pension or sick pay. Professional careers also face insecurity, with less pay, fewer benefits and no pensions. Uncertainty causes stress and affects health.

The stress curve (Figure 9.9.1, after Nixon, Murray and Bryant, 1979): stress improves performance up to a point; beyond that point the person becomes fatigued and performance suffers. Where that point lies differs by personality and coping mechanisms.

Why HR cares: stress leads to headaches, stomach trouble and other symptoms, and so to lost productivity, less creative output, higher health insurance costs and turnover. Stress reduction measures: making vacation mandatory and encouraging it (PricewaterhouseCoopers even uses a popup telling staff who send e-mail at the weekend to switch off), flex-time, concierge services, child care on site, wellness programs and massage therapy, all of which also strengthen loyalty and productivity.

Being a student can be stressful. The book lists common stressors for college students, such as death of a loved one, relocating, first semester, failing an important course, increased course load, financial problems, relationship changes, new job, long commute, working more than one job and impending graduation.

Workplace violence and bullying. About 2 million American workers are victims of workplace violence each year.

Examples of bullying: unwarranted or invalid criticism; blame without facts; being treated differently from the rest of the group; humiliation; unrealistic deadlines; spreading rumours; undermining or deliberately impeding someone's work. Lateral violence is a related term prominent in First Nations communities, seen in small communities where everyone knows each other.

Psychological health in Canada (CCOHS, 2016): 1 in 5 Canadians has a psychological health problem in a given year; it is the number one cause of disability; the cost is about $51 billion a year, $20 billion from work-related causes; 47% of working Canadians call work the most stressful part of daily life; mid-career workers are affected most; only 23% would feel comfortable talking to their employer about it. Prevention of bullying means a culture where employees feel comfortable speaking to HR and managers.

Employee privacy. Exposed private information is costly (identity theft). In Canada employee privacy is governed by PIPEDA (Personal Information Protection and Electronic Documents Act). Measures against identity theft:

1. Background and criminal checks on employees with access to sensitive data.
2. Limit who can enter places where data is kept, computers included.
3. Train staff who handle private employee information.
4. Keep information in locked or password-protected files.
5. Identify employees with numbers other than social insurance (security) numbers.

Monitoring: case law mostly holds that employees have no privacy rights when using the organization's equipment (with some exceptions); 73% of employers monitor e-mail and 66% web surfing (AMA, 2007). For employee buy-in: (1) develop a monitoring policy, (2) communicate what will be monitored, (3) give the business reasons for monitoring e-mail and Internet. Work with IT on data protection standards and communicate the privacy policy.

9.10 Incident investigation

Employers must investigate workplace incidents. Before the formal investigation, internal and external reporting requirements must be met.

Pre-investigation checklist:

• Have injured parties received the necessary first aid, and was 9-1-1 called if needed? Witnesses may need support too.
• Have internal stakeholders been notified: HR, health and safety representatives or committee, union representatives, leadership team?
• Have external stakeholders been notified: family of the injured, third-party contractors or employers, temporary agencies, legal counsel, head office, law enforcement, workers' compensation and government agencies?

Emergency contact sheets must include the government agencies to contact after an incident or death. Investigations aim to uncover how and why an incident happened so it can be prevented. A careless investigation undermines results and risks a repeat. Serious injuries must be investigated thoroughly, but minor injuries and near misses are also worth investigating because they reveal insights that may prevent future injury.

Example: the Babine sawmill (Burns Lake, BC, 2012). An explosion caused by a buildup of wood dust killed two workers and injured 20. In such serious cases the provincial government (WorkSafeBC) investigates. Access took 19 days (RCMP investigation, unsafe conditions). WorkSafeBC recommended charges, but the Criminal Justice Branch could not proceed because of serious flaws in the investigation: not all relevant information was collected, key witnesses were not interviewed and due process was not followed in interviews with managers. Inspectors had visited a month earlier without flagging the explosion risk. Government investigations have a different purpose (deciding on legal penalties) from employer investigations, but the case shows what goes wrong with a poor investigation.

9.11 Hazard recognition, assessment and control

Some hazards are easy to spot (an extension cord across a busy hallway), others hard (whether a cleaning agent is toxic or a machine too noisy), and some very hard (factors increasing stress or precursors of harassment). Likewise, some are easy and cheap to control, others expensive, part of the core production process, or requiring multi-faceted solutions. HRAC is further complicated by conflicting interests: workers and employers may disagree on what a hazard is, how serious it is and what the right control is.

9.12 Investigation steps

A successful investigation follows a consistent process, starts as soon as possible and is completed quickly: witness recall deteriorates, evidence can disappear, changes can be made sooner and reporting deadlines may apply.

Interview principles (step 2):

• Check first that the witness is well, physically and emotionally; counselling may have to come before the interview.
• Explain why you are interviewing: the aim is not to assign blame.
• Talk to each witness individually in a neutral setting; arrange a worker representative if the witness asks for one or the union agreement requires it.
• Do not lead: witnesses describe events in their own words.
• Only ask questions that clarify or draw out more information; avoid asking "why" they believe something happened.
• Listen actively: check your understanding by summarizing or repeating.
• Record the interview through detailed notes or, where appropriate, audio.
• Keep power relations in mind (for example when the interviewer supervises the witness), since they can distort what is reported.

Evidence techniques (step 3): a walk-through is a preliminary inspection of the scene to get an overall picture and decide which further techniques are needed. A re-enactment simulates the circumstances that led to the incident (witnesses act out events, or conditions are recreated); it shows how circumstances, events and behaviours interacted, which single witnesses with a limited view cannot show.

Root cause analysis (step 4) is where investigations often go wrong. The first causes that appear are immediate causes, usually worker error or something that seems uncontrollable. Stopping there gives an incomplete analysis and fails the main goal of preventing future incidents. Keep asking "why?" to reach the root cause. Two models help:

Both models are popular because they simply express the core principle: look beyond immediate actions to the underlying factors.

Step 5 can be seen as the most crucial phase: a careful investigation is worthless if the recommendations do not improve the situation. Every incident report contains:

• Who performed the investigation
• Details of the incident: date, time, persons involved, outcomes
• What the investigation involved and how it was carried out (timelines and so on)
• The factors that led up to the incident
• Clear identification of the root causes
• Specific recommendations to prevent future incidents

Report guidelines: templates with open-ended questions are better than checklists. Recommendations must be specific and directed at the identified causes, but not so specific that systemic issues are missed. They must be within the employer's control (the employer cannot control the weather, but can implement controls that neutralize its effect). Human error is identified without assigning blame. All affected parties get a copy (involved workers, JHSC, responsible managers). The employer is responsible for implementation; employers often delay, look for other solutions or call recommendations too expensive, which undermines safety and future investigations. An action plan with timelines and resources should accompany the report.

Follow up (step 6): the recommendations normally contain corrective and preventive measures. Check (1) whether they have been put into practice; if not, look again at the timelines and resources in the action plan and adjust them where necessary; and (2) whether they work. Since everyone belongs to the IRS, the area supervisor, the union if there is one, and the health and safety committee or representative should all help judge whether the measures work.

9.13 Promoting a culture of safety and health

As health benefits get more expensive, companies gain from hiring and retaining healthy staff; in the recession of the late 2000s, half of all workplaces raised or meant to raise their spending on wellness. A safe culture is not produced by an annual training day; it grows where people are able to spot hazards and are empowered and equipped to fix them. All employees should watch for safety problems, and managers should treat staff suggestions seriously, carry out the change and explain it. A real safety culture never ranks cost or output figures above safety; having safety compete with faster production is risky.

Techniques for a safe and healthy workplace:

1. Know safety laws.
2. Train employees on safety laws.
3. Have a written policy on how violations are handled.
4. Commit the necessary resources (time and money).
5. Involve employees in safety and health discussions; they may have good ideas.
6. Make safety part of every job description and hold employees accountable.
7. Understand how employee health affects the bottom line and implement supporting policies and programs.

Health and safety policy. Putting the policy in writing shows how much health and safety matter. In the book's example, the Environmental, Health and Safety policy of Cordis (part of Johnson & Johnson), the company commits to thorough risk management, preventing pollution, a culture of healthy living, ongoing improvement and sustainability, active partnerships and strong EHS skills. EHS is a core business value weighed in each task and decision, all incidents and injuries are preventable, and each associate carries responsibility and accountability for EHS.

Key terms at a glance

• Act / regulation / guidelines and policies: broad legal framework / enforceable application rules / more specific rules.
• Management rights: the employer's right to manage and direct the business, limited only by law and contract.
• Web of rules: the interlocking laws that limit the employer's right to manage.
• Presumptive status: an injury or disease is assumed to be work-related unless proven otherwise.
• Gaming: maximizing experience-rating returns by means other than improving safety.
• Return to work (RTW): programs reintegrating injured workers, e.g. through modified work.
• Stop-work order / worksite inspection / prosecute: inspector orders work halted / inspector checks compliance / court proceedings for a violation.
• Walk-through / re-enactment: preliminary overview of the scene / recreating the events of an incident.

Summary

Canada has 14 OHS jurisdictions; most workers fall under provincial law, a small share under the Canada Labour Code. OHS rests on the internal responsibility system: employers and workers share responsibility, employers must make work as safe as reasonably practicable and can defend themselves through due diligence (foreseeability, preventability, control), while workers have the rights to know, participate and refuse. Employers track incidence rates and can be criminally liable under the Westray Law. JHSCs are advisory; inspectors educate and enforce through orders, stop-work orders, fines and prosecution. OHS sits in a web of rules including hazardous products law, employment standards, human rights (duty to accommodate), workers' compensation (historic compromise, Meredith principles, experience rating) and the AODA. WHMIS 2015 rests on labels, SDSs and training. Health hazards include CTDs, chemical sensitivities, stress, bullying, cyberbullying and privacy risks. Incidents are investigated in six steps, with root cause analysis (domino theory, Swiss cheese model) and a clear report, and prevention depends on hazard recognition, assessment and control and a genuine culture of safety.