Even the safest and most successful business can have a workplace accident. The worker's well-being always comes first, but it is rarely the only concern. An accident can hurt a business's reputation, brand and bottom line. The Workplace Safety and Insurance Board (WSIB) and the Ministry of Labour each have their own overlapping, independent interests in an accident.
Here is how to manage the potential for costly liability.
Know what you're up against: health and safety costs
- An order. A Ministry of Labour inspector can issue orders that stop work in all or part of the workplace, with costs for lost productivity and compliance. Orders include stop-work orders, orders preventing certain equipment from being used, orders to correct an alleged hazard and orders keeping workers out of parts of the workplace. Business can't resume as usual until the order is complied with and lifted.
- A charge. Even after a routine inspection, an employer can be charged with violating the Occupational Health and Safety Act and its regulations. Each charge carries a maximum penalty of $500,000 for an employer, and $25,000 (or a 12-month jail term) for an owner, director or even a supervisor.
- Settlement or trial. A trial is almost always costly, financially, emotionally and physically. Unlike in a civil trial, a defendant in an occupational health and safety trial can't recover costs even if the outcome is favourable. A settlement or sentencing agreement can also be costly, especially when the accident is serious. The sentence depends on the size of the organization, the scope of its economic activity, actual and potential harm to the public, and deterrence. For a first offence resulting in a critical injury, a sentence of more than $50,000 is not unusual. A fatality can be well over $100,000.
Know what you're up against: workers' compensation costs
- Penalties for missed reporting. After a workplace accident, a Form 7 must be filed within three days if the worker needs health care or can't earn full wages. If the worker needs modified duties but hasn't lost wages, the Form 7 must be filed within seven days. An employer that doesn't file on time may face a maximum penalty of $100,000, and $25,000 (or a 12-month jail term) for an owner or director. As with OHSA charges, this is a regulatory offence and the actual fine depends on the circumstances.
- WSIB benefits. A worker off work because of an injury generally receives 85 per cent of take-home pay for loss of earnings during recovery: a worker who took home $1,000 a week would receive $850. The WSIB, not OHIP, also pays the worker's health care costs, such as an MRI, x-rays and physiotherapy. If the injury causes a permanent impairment, the worker receives an award based on the percentage of physical, functional or psychological ability permanently lost, from a few hundred dollars to tens of thousands.
- Your cost statement. The WSIB is an insurance fund, so payments to the worker are transferred to the employer's yearly cost statement, much like home or car insurance. With a prolonged recovery and a permanent disability, it is not unusual for a claim to cost an employer tens of thousands of dollars, and a claim continues to affect the cost statement and experience rating for three to five years, depending on the experience rating program.
- Breaching the re-employment obligation. In many cases an employer must re-employ an injured worker for up to two years after the injury, including providing modified work that meets the worker's limitations and ultimately returning them to their pre-injury job. Be extremely careful, and get legal advice, before terminating or laying off a worker during that period. A breach can lead to a penalty equal to the worker's annual salary.
Training
A strong health and safety training program is an ongoing responsibility. A worker's training certificates are important but not enough to show the worker is properly trained. You must provide training specific to the hazards of your workplace, whether you hire workers directly or through a subcontractor. Every worker needs a thorough orientation, including a review of your occupational health and safety policy. Hold training sessions, toolbox talks and quick safety refreshers often, and retrain all workers after a safety violation or accident.
In one case, an electrician was injured when he didn't shut off the power at the breaker panel before starting work, and admitted he hadn't followed safety procedures. The employer was still charged for failing to ensure he was properly trained. It argued he had a training certificate, experience and safety training from his apprenticeship. It was found guilty anyway, because it hadn't provided ongoing safety training or made sure safety procedures were followed.
Due diligence
Like a traffic offence, an Occupational Health and Safety Act charge is a strict liability offence: once charged, innocence is not assumed and must be proven. The usual defence is due diligence, meaning proof that the employer took all reasonable precautions in the circumstances. Because an OHSA charge is quasi-criminal, due diligence must be proven beyond a reasonable doubt, which is a very high standard.
In one case, a supervisor was charged with failing to take every reasonable precaution to ensure fall protection requirements were followed. The court said a supervisor isn't expected to "stand around all day watching workers", but general, unplanned and coincidental observation of workers on his way to lunch was not enough for a due diligence defence. Supervision should be planned and deliberate.
Getting the worker back to work
After an accident, getting the worker back to work is the fastest way to reduce liability. Once back at work, the worker no longer receives loss of earnings benefits, and studies show the chance of a long-term disability drops substantially. Ending loss of earnings benefits and avoiding a permanent impairment award reduce the impact on your cost statement and experience rating.
If the worker needs accommodation, the process is a joint effort between the employer, the worker and the union, if there is one. The employer has the right and the obligation to ask about the worker's limitations, and the worker must take an active part. If the proposed accommodation meets the worker's limitations, the worker must return to work.
Documentation
The best way to show training, due diligence and return-to-work efforts is documentation, including:
- an occupational health and safety policy that is reviewed and updated regularly
- records of all orientation, training and toolbox talks, kept on site or sent to a central location
- daily safety checklists for workers and supervisors to use at the start of each shift
- records of regular maintenance and safety inspections of all tools and equipment
- records of the joint health and safety committee's monthly inspections, and your own notes and checklists from workplace inspections
- records of every interaction with the Ministry of Labour
- records of your own investigation after a workplace accident
Record the good and the bad. It is all relevant, and it can show a strong health and safety culture in a WSIB appeal or an occupational health and safety prosecution. If you record a violation, also record every remedial step taken, including improvements made and discipline issued.