Michael Ford (post until Oct. 31/19)
Employment & Labour

Legislative changes heighten occupational health and safety issues

Health and safety are becoming more prominent concerns for employers, regardless of the types of workplaces they operate, Toronto employment lawyer Doug MacLeod tells AdvocateDaily.com.

MacLeod, principal of MacLeod Law Firm, says that employers of all kinds have felt the impact of a series of recent changes to Ontario’s Occupational Health and Safety Act (OHSA).

“Health and safety have always been an important part of managing a workplace, but because of these changes, employers are having to deal with these kinds of issues more often,” he says.

For example, MacLeod says businesses — where employees are concentrated in offices — have been particularly affected by Bill 132, which amended the OHSA by mandating employers to conduct investigations into incidents of alleged workplace harassment. The bill also explicitly expanded the definition of workplace harassment to include sexual harassment and provides provincial inspectors with the power to order an impartial investigation at the employer's expense.

The new law was a supplement to the earlier Bill 168, which introduced requirements for risk assessments and policies regarding workplace violence and harassment.

“Harassment can occur in any workplace, but where you’ve got workers in close quarters, personal conflicts are more likely to rise to the level requiring a complaint and investigation,” he says. “Employees are much more educated now on their rights, and are willing to file complaints, so it has gained more traction recently.

“For employers, they need to ensure they have a written policy regarding workplace harassment and the complaint process, as well as someone on staff trained in how to investigate them,” MacLeod says.

At the more dangerous end of the workplace spectrum, businesses in construction and manufacturing industries should be aware of OHSA amendments enacted last year that hiked the maximum fines payable by individuals and corporations convicted of violations, he says.   

For individuals, the top fine increased four-fold from $25,000 to $100,000, while the potential liability for corporations tripled from $500,000 to $1.5 million.

“Inherently unsafe workplaces such as construction sites, or manufacturers where heavy machinery is in use, are those where accidents are more common,” says MacLeod, who adds that many business owners are unaware that fines upon conviction will actually be considerably higher than the face value, thanks to a 25-per-cent victim surcharge automatically imposed by courts.

Although no case has come close to hitting the new caps, he says that could change as judges take a company’s size and previous accident record into consideration when setting penalties.   

“Fines for accidents involving fatalities have been creeping up steadily over the years, and unless you’re a really small employer, you could be looking at a six-figure amount,” MacLeod says.  

In any case, he says smaller companies could find themselves crippled by a fine that falls well short of the maximum levels, depending on their circumstances.  

“If you’re a large car manufacturer making billions per year, $100,000 is not going to have the same impact as if you’re an auto mechanic making $20,000,” MacLeod says. “One of the main factors judges will look at on sentencing is deterrence. They don’t want employers thinking they have a licence to run an unsafe work environment."

But, it’s not just fatalities that can result in convictions under the OHSA.

“Fines for workplace accidents that result in a ‘critical injury’ are also going up," says MacLeod, who explains that the definition covers a wide range of incidents involving broken bones or blood loss.

“It can be a fairly minor injury, relatively speaking, such as a broken finger, that attracts a significant fine,” he says.

According to the Ministry of Labour, a second OHSA conviction recently resulted in a fine of $90,000, plus the victim surcharge following a worker’s critical injury involving a forklift.

When workplace injuries occur, MacLeod says employers should immediately launch an investigation in conjunction with notifying the ministry, in order to collect evidence surrounding the incident.

“You’ll want to interview witnesses, take pictures, and determine if workplace policies and safety protocols were followed,” he says, adding that employers can defend against OHSA charges on the basis of due diligence.  

According to MacLeod, waiting until charges are laid is ill-advised since ministry officials often leave that decision until the end of the year-long investigation period they are given by law.

“By that time, you can’t really go back and investigate properly, so it’s hard to prove that you did everything to avoid the accident that was reasonably expected of you."

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