Almost every employer will agree that a company’s most valuable asset is its employees. As such, one of the worst-case scenarios an employer will ever face is when an employee is injured on the job or an incident takes place that endangers the health and safety of its workers. Employers commonly ask about their occupational health and safety obligations when an employee is injured in the workplace. Below are some of the most common questions and answers:1
Q. What are an employer’s obligations to its workers under the Occupational Health and Safety Act2 (OHSA)?
A. An employer is obligated to take all reasonable precautions to protect the health and safety of its workers. Furthermore, an employer is obligated to instruct, inform and supervise workers to protect their health and safety, and to inform workers about any hazard in the workplace. Finally, an employer is obligated to cooperate with any joint health and safety committee that has been established at the work site.
Q. In what circumstances is an employer obligated to investigate and report injuries and incidents in the workplace?
A. According to the OHSA, injuries and incidents have to be reported to a Workplace Health and Safety Officer if they:
- result in a death;
- cause a worker to be admitted to hospital for more than two days;
- involve an unplanned or uncontrolled explosion, fire or flood that causes or have the potential to cause a serious injury;
- involve the collapse or upset of a crane, derrick or hoist; or
- involve the collapse or failure of any component of a building or structure necessary for the structural integrity of the building or structure.
If an injury or accident occurs at a work site, or if any other serious injury or accident that has the potential of causing serious injury to a person occurs at a work site, the employer must:
- carry out an investigation into the circumstances surrounding the serious injury or accident;
- prepare a report outlining the circumstances of the serious injury or accident, and the corrective action, if any, undertaken to prevent a recurrence of the serious injury or accident; and
- ensure that a copy of the report is readily available for inspection by an Officer.
Q. What considerations should an employer keep in mind when preparing an occupational health and safety workplace incident report?
A. Employers are increasingly aware of the value and importance of workplace investigations and reports. Some of these investigations are required by statute, and others are performed by employers voluntarily as a measure of due diligence on the part of the employer.
If an investigation is conducted and a report is created, care should be taken to be accurate. Employers should not speculate or guess as to any fact or the cause of the accident. Moreover, the investigation should include references to anything that would assist in the defence that the incident was not foreseeable. Specifically, documentation relating to Joint Work Site Health and Safety Committee minutes, prior policies, worker training, and work refusals should all be canvassed. In addition, the employer should consider whether the company has information in its possession that demonstrates that steps were taken to prevent the specific occurrence.
Furthermore, employers should consider undertaking the investigation at the direction of legal counsel. For incidents involving serious injury or fatalities, the employer should consider having legal counsel interview and prepare any management witnesses before an occupational health and safety officer conducts interview.
Although the OHSA does not require that employers conduct investigations and create reports for every workplace accident, employers often choose to do so for a number of reasons including fact-finding and prevention, uncovering information for insurance claims, and establishing a due diligence defence. In these circumstances, the following precautionary measures should be taken to ensure that these internal reports remain privileged:
- The commissioning of the report should be done by legal counsel (preferably external counsel) for the employer.
- It should be made clear to all parties involved that the report is being prepared in anticipation of actual litigation relating to the workplace accident/injury and that the investigation and the subsequent report are subject to solicitor-client privilege, litigation privilege, and confidentiality.
- Disclosure of the report should only be done through, and with the advice of, legal counsel to the employer.
- If disclosure of the report is necessary, it must be for an expressly defined, limited purpose and should state that disclosure does not constitute waiver of the solicitor-client or litigation privilege claimed over the report.
Q. What can an employer do to prepare for the arrival of an Occupational Health and Safety Inspector?
A. The OHSA provides Officers with significant powers to enter a workplace or project without prior authorization to ensure compliance with laws and regulations governing workplace safety. The following is a list of practical steps for employers to take prior to and during an Officer’s visit:
Before an Officer arrives:
- Designate one contact person at each location.
- Develop procedures for dealing with inspectors and train staff in these procedures.
- Maintain a separate file for material over which you wish to claim solicitor-client privilege.
- Keep in-house or external legal counsel apprised of any situations that may increase the likelihood of an inspection.
When an Officer arrives:
- Immediately contact the designated contact person.
- Check the Officer’s identification.
- Ask the Officer to explain the purpose of his/her visit. For example, is it a general audit or a more specific investigation? Are they investigating in aid of a possible prosecution?
- Consider immediately contacting legal counsel.
- Have someone (preferably the designated contact person) accompany the Officer at all times.
- Be careful not to obstruct the investigation. However, the employer may be able to make alternative arrangements for the time and date of the inspection.
- Keep notes of everything the Officer does and says in his/her visit.
- Remember that anything you say may be recorded by the Officer and used against the employer.
- Keep a record of all documents and other items taken by the Officer.
- Cooperate in any interviews, but consider asking the inspector to return later to conduct the interviews. This will give legal counsel an opportunity to meet with any persons to be interviewed before the interview.
- Request that legal counsel or another employer representative be present in any interviews.
- Ensure that everyone answers all interview questions fully and honestly.
- If the Officer has a search warrant, immediately contact legal counsel and ask the Officer to wait until your legal counsel has arrived. Although the Officer has no obligation to wait, most will.
- If you have any objections to anything the Officer is doing, note your objections on paper but do not attempt to obstruct the search.
Employers have a duty to keep their employees safe, and part of this obligation involves providing adequate safety and hazard awareness training to employees in order to ensure that workers understand and carry out their work according to established policies, practices and procedures.
An employer may be able to establish a due diligence defence to occupational health and safety violations by demonstrating that they took all steps reasonably practicable in the circumstances to prevent the specific offence from occurring. However, a defence of due diligence will fail where a system is in place, but workers and supervisors neither understand nor follow it. Furthermore, all of the elements of a "due diligence defence" must be in effect before any accident or incident occurs.
Remember: Due diligence begins well before the prosecution commences!