Employers generally know that they have a responsibility to ensure the health and safety of their own workers, but often do not understand that in certain cases they are also responsible for ensuring the health and safety of the workers of other employers. The latter obligation is imposed by section 115(1)(a)(ii) of the Workers Compensation Act.
This section of the WCA states that every employer must ensure the health and safety of “any other workers present at a workplace at which that employer’s work is being carried out”. Application of this section of the WCA has been quite controversial. The language is capable of being interpreted and applied very broadly so as to impose responsibility on employers for the health and safety of “other workers” in circumstances where employers had no idea that they had that responsibility. For example, if an employer hires a contractor to do repairs on its business premises, section 115(1)(a)(ii) of the WCA may impose an obligation on that employer to ensure the health and safety of the contractor’s workers. Similarly, if a franchisor exercises significant control over its franchisee’s operation and facility, it may have an obligation to ensure the health and safety of the franchisee’s workers.
WorkSafeBC’s Board of Directors recently approved a new policy (Prevention Manual Policy Item D3-115-1) to assist employers and other workplace parties by clarifying the interpretation and application of section 115(1)(a)(ii) of the WCA . The new policy became effective on May 1, 2013.
The new policy clarifies that the employer’s duty to be responsible for the health and safety of other workers arises in two circumstances: (i) where the workers of other employers are present at a workplace where the employer’s own workers are working; and (ii) where the workers of another employer are doing work for the employer’s benefit. Once the duty arises, the employer is required to take all reasonable steps in the circumstances to ensure the health and safety of the other workers.
According to the new policy, the extent of an employer’s safety obligations in a given case will depend upon three factors: (i) the employer’s degree of control over the work and workplace; (ii) the employer’s level of expertise in the work being performed; and (iii) the extent to which the employer is aware of or ought to be aware of what is occurring in the workplace.
The new policy describes the reasonable steps that an employer may be required to take where they are responsible for the health and safety of other workers. The steps include: (i) making reasonable inquiries, prior to a firm doing work on an employer’s behalf, to determine whether the firm is capable of safely doing the work and to ascertain the firm’s plans to safely conduct the work; (ii) preventing unsafe conditions or work that may affect the other workers and addressing those that arise; and (iii) ensuring that the employer’s own workers do not put the other workers at risk.
It is important for employers to fully understand their duty under section 115(1)(a)(ii) of the WCA as failure to fulfil that duty could result in sanctions, including substantial financial penalties.
Additional information on the new policy can be found here