WHAT ARE THE RISKS?
Key changes have been recently made to the Workers Compensation Act of BC (the “Act”). Both Bill 9 (WCA Amendment Act No. 1) and Bill 35 (WCA Amendment Act No. 2) were respectively passed on May 14, 2015 and November 17, 2015. Primary revisions include, but are not limited to:
- Expanded stop work order powers
- Compliance agreements
- Employer citations
The primary goals of these legislative changes were to improve workplace health and safety at the same time as strengthening the tools that WorkSafeBC uses to enforce the Act and the Regulations. Why has WorkSafeBC changed the law? Simply put, there are several Employers who fail to comply and the current powers of Officers are not sufficient to encourage compliance.
Do you understand the legislative changes as it relates to your business? Do you know your regulatory duties and know how to manage your health and safety risks to minimize your liabilities and maintain your due diligence? Are you ready to comply or are compliant?
WHAT ARE THE CHANGES TO STOP WORK ORDERS?
WorkSafeBC Officers now have expanded stop work order and injunction powers. This an obvious need as while several Employers are “doing the right thing” when its comes to the health and safety of their workers, many more Employers are not fully compliant and simply refuse to be.
Two major changes have now been implemented. First, an Officer can issue a stop work order if they “believe there is a reasonable grounds to believe there is a high risk of serious injury, serious illness, or death.” Second, and alternatively, a stop work order can be issued if an Employer:
- Fails to comply with the Act or Regulations;
- Has failed to comply with an order under that provision in the previous year; and
- There are reasonable grounds to believe there is a risk of serious injury/illness or death.
Simply put, an Officer can shut down your business/operations more quickly if you do not take your duties seriously enough, do not comply with previously issued orders, and/or if you are putting your workers at grave (or potentially grave) harm. Stop work orders can be issued if an Employer is not able, or unwilling to, fix the issues that can threaten the safety of their (and other) workers at their workplace.
Additionally, if implemented control measures are not sufficient to protect workers, a stop work order can be issued. Lastly, the threshold has been changed, from “immediate risk” to “high risk.” It is important to note that a stop work order can only be issued on unsafe work and cannot be extended to shut down work that is being done safely. Furthermore, WorkSafeBC can also now issue stop work orders at other workplaces or parts of other workplaces of the same Employers (called a “stop operations order”).
WHAT ARE THE CHANGES TO COMPLIANCE AGREEMENTS?
First, let’s go over what a “compliance agreement” is to begin with, if you so choose to engage in one. These agreements are voluntary with WorkSafeBC and are entered into by the Employer to facilitate compliance with the Act and Regulations.
It is an alternative enforcement tool to compliance orders. If you decide to enter into a compliance agreement, correct violations and report back to WorkSafeBC, then you will be less likely to receive enforcement activity. Items that, in writing, are addressed in a compliance agreement are as follows:
- The violation(s) that will be addressed by the agreement
- Corrective actions you agree to undertake
- How you will report back to WorkSafeBC
- Action deadlines, report deadlines and the ending date of the agreement
The agreement must be signed by an Employer representative and submitted to WorkSafeBC at an assigned or agreed to date. There are, of course, “rules of engagement” regarding compliance agreements:
- The violation(s) in question must not be considered “high risk” and must not pose a health and safety risk to workers.
- The officer must reasonably believe that you will fulfill your health and safety obligations per the agreement.
- You must have not violated the Act or Regulations in the last 12 months.
- You must not have had a cancelled compliance agreement in the last 3 years.
How does an Officer decide if you are eligible or have you enter into a compliance agreement? Note that only the Officer can initiate the compliance agreement process. There are several factors that would be considered for a compliance agreement; these include, but may not be limited to:
- Your compliance history;
- Overall effectiveness of your approach to worker health and safety;
- Your willingness to enter into the agreement;
- Information provided by workers and union representatives;
- Likelihood of an incident or exposure occurring and the likely seriousness of any injury or illness etc.
Can a compliance agreement end? The simple answer is yes, an agreement can be ended or cancelled. The main instance is if the Officer believes that worker health and safety is at risk or if the current compliance agreement does not adequately protect workers. However, agreements can be cancelled for other reasons, such as:
- You do not report to WorkSafeBC within established timeframe(s);
- You do not undertake correction actions outlined in the agreement;
- You provide misleading or incorrect information to WorkSafeBC with intent etc.
WHAT ARE OHS CITATIONS & HOW ARE THEY ISSUED?
OHS citations are yet another enforcement tool for WorkSafeBC Officer to penalize Employers who choose to not comply with orders or who fail to produce a compliance report that is not deemed “high risk” per the orders. If you, as an Employer, comply with your orders you will not receive an OHS citation. In addition, before issuing the citation, an Officer must give the Employer a written warning. However, if you still fail to comply even after the written warning, future citations will be generally imposed on you as the Employer. The maximum penalty for an OHS citation is $1,000.00, however, a first citation is half that amount ($500.00). The maximum amount can be applied on subsequent violations within 3 years of the first citation.
An OHS citation can be issued to Employers for any of the following non-compliance violations:
- Failure to comply with an issued order, per Section 115(1)(b) of the Act;
- Failure to prepare or send a compliance report to WorkSafeBC or meet other requirements under Sections 194(2), (3) or (4) of the Act;
- Failure to comply with Section 2.4 (“Prompt Compliance”) of the Regulations.
If a non-compliance violation has occurred, WorkSafeBC may impose an OHS citation if all of the following requirements are met on a specific inspection cycle:
- The violation is not related to “high risk” circumstances;
- You, as the Employer, committed the violation subsequent to receiving a citation warning;
- OHS penalty or OHS penalty warning letter has not already been imposed for the same violation or underlying violation; and
- OHS citation for the statutory maximum has not already been imposed.
OHS Global is here to help! We are an industry leader in the provision of professional, quality, timely and practical occupational health, hygiene and safety consulting and training services. We have nearly 50 combined years of experience in assisting hundreds of clients from various industry sectors in navigating and understanding the Act, Regulations, written orders etc., and designing practical, cost-efficient, and effective strategies/solutions to manage those risks.
Our related services include, but are not limited to:
- Interpretation of written regulatory orders/reports;
- Representation of your company to the assigned WorkSafeBC Officer(s);
- Design of compliance strategies, approaches and plans;
- Provision of required health, hygiene and safety consulting and training services;
- Preparation of regulatory required variances etc.
Contact us for further information about how we can help you meet and overcome your specific compliance risks/challenges.
About Craig Yee
Craig Yee is an Industrial Hygienist and Principal of OHS Global Risk Solutions. He earned his Masters Degree in Occupational and Environmental Hygiene at the University of British Columbia. He has over 12 years of direct experience in the hygiene, health and safety industry in both public and private sectors. You can connect with him on Google+.
Risk Identified. Risk Managed.