Increased powers granted by the BC Government to WorkSafeBC, the provincial workers' compensation insurer, are now in effect. Along with these changes, employers are now under additional obligations with respect to workplace incident investigation and reporting.
These changes come by way of the Workers Compensation Amendment Act, 2015 ("Bill 9") and enact several recommendations made to the provincial government in the wake of two tragic sawmill explosions which claimed the lives of four workers in 2012.
Bill 9 was introduced in two waves, with the first in effect on May 14, 2015, and the second in effect on September 15, 2015. An additional compliance measure, discussed below, is currently in force but is not expected to be implemented until early 2016. What follows is an overview of these changes and what they mean for employers.
For employers the substantive occupational health and safety standards which exist will remain unchanged. What has changed however are the steps employers must now take when a workplace safety incident has occurred.
When an incident requiring an employer investigation happens, such as a serious injury, fatality, or near-miss, employers must now conduct a two-part investigation:
- Preliminary Investigation and Report: Within 48 hours of the incident, employers must identify (as far as possible) any unsafe conditions or acts which contributed to the incident and prepare a report summarizing their findings. More importantly, the report must also identify what interim corrective action the employer plans to take between the date of the incident and the time the full report is due.
- Full Investigation and Report: Within 30 days of the incident, employers must complete a full investigation report and submit it to WorkSafeBC. The final report should expand on the findings made in the preliminary report to include any additional or more detailed findings on the conditions which led to the incident and the steps taken to rectify them. The final report must also identify the people who are responsible for implementing the final corrective action and the date it was taken.
In addition to these reporting obligations, Bill 9 has shortened the time window employers have to request a review of decisions related to prevention orders and penalties from 90 days to 45 days. As with before, an employer may avoid an administrative penalty if it is able to demonstrate it exercised due diligence. In practice the onus has always lied with the employer to demonstrate due diligence, however this has now been codified by Bill 9.
Expanded WorkSafeBC Powers
Bill 9 has both enhanced and expanded the tools available to WorkSafeBC to ensure compliance.
Stop Work Orders. Stop work orders have long been an important measure available to WorkSafeBC to protect workers from the risk of serious injury or illness. Bill 9 has lowered the threshold required to trigger a stop work order, which may now occur in either of two instances:
- if there is a "high risk" to workers of a serious injury, illness, or death (the threshold was previously "immediate risk"); or
- if an employer has a previous violation and there is a risk of serious injury, illness, or death.
Additionally, the scope of stop work orders is no longer limited to a single location and may now extend to other workplaces of the employer if there are reasonable grounds to believe similar unsafe working conditions exist.
Injunctions. Previously, WorkSafeBC had the ability to make an application to the BC Supreme Court to seek an injunction restraining a party from continuing contraventions of workplace safety laws. As with stop work orders, the scope of the available injunctions has expanded and may now restrain parties from carrying on an activity or from working in an industry generally.
Injunctions are available as a last-resort mechanism aimed at individuals who continue to fail to comply with workplace safety laws and will only be issued when WorkSafeBC has exhausted all other enforcement mechanisms.
Employer Citations. A new enforcement tool which will become available in early 2016 is an administrative penalty of up to $1,000 which WorkSafeBC will be able to issue more quickly and efficiently than the penalties it currently uses. Employers may be issued these citations if they commit a non-high risk violation of workplace safety laws. WorkSafeBC has been in consultation with various stakeholders on the new measures, and the enabling regulations are expected to be implemented in early 2016.
One important introduction effective September 15, 2015 is the ability for employers and WorkSafeBC to enter into compliance agreements. These agreements, voluntarily signed by the employers, outline the steps an employer will take in order to meet occupational health and safety standards. Previously, WorkSafeBC employed a 'top-down' approach when it came to workplace safety violations where it would issue a compliance order mandatorily requiring an employer to take one or more specified actions; non-compliance with these orders typically resulted in further sanction. While compliance orders still exist, these agreements function as an alternative.
Compliance agreements are not an automatic right granted to employers; they are offered by WorkSafeBC when it believes it is appropriate to do so. The criteria that an officer will consider before offering a compliance agreement includes:
- the violation must not be "high-risk" (as defined under WorkSafeBC policies);
- the officer must believe the employer is likely to fulfill its obligations under the agreement;
- the employer must not have violated the same provision of the Act or Regulation in the previous 12 months; and
- no previous compliance agreements with the employer have been cancelled in the last 3 years.
Note that compliance agreements are largely discretionary; in addition to the above criteria, an officer will also consider the employer's overall compliance history and willingness to enter into an agreement, the information provided by workers and union representatives, the overall effectiveness of the employer's workplace safety measures, and the likelihood of another incident occurring.
A compliance agreement will outline the specific measures an employer promises to take to achieve compliance and will provide a timeline for meeting them. Employers who enter into compliance agreements are required to report back to WorkSafeBC. Once satisfied, WorkSafeBC will not take any further enforcement activity in relation to that violation.
Employers would be well-advised to pay close attention to the preliminary investigation requirements discussed above. Even though preliminary, the responsibilities at this stage should not be taken lightly; if an employer is able to identify only some of the unsafe conditions which brought about a workplace incident, or can only describe them in general terms, WorkSafeBC has indicated the interim corrective action may require a full or partial shutdown of a workplace, removing equipment, or reassigning workers. In doing so, WorkSafeBC has signalled it expects employers to be diligent and proactive in conducting incident investigations.
The benefit for employers, however, is that in addition to complying with workplace safety laws, a proactive and diligent workplace safety investigation makes for good practice. When conducted properly, a robust incident investigation will help employers by providing an accurate and reliable picture of the facts, securing any evidence they may later require, and may ultimately help demonstrate due diligence in order to avoid an administrative penalty. If an administrative penalty is issued nonetheless, it is important to note that the time to request a review has been halved from 90 to 45 days, and exceptions are granted in limited circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.