Accident Prevention e-News January 2009	Volume 4/Issue 1/Jan 2009
In this Issue: Safety strategies when contracting help Immigrant worker risks 2009 H&S promotions calendar Protecting workers from extreme weather In the News

Safety strategies when contracting help
By Ryan J. Conlin

Two recent court cases highlight the potentially tragic consequences when employers fail to take responsibility for contract help.

In September 2006, a temporary worker at Ganz, a novelty and toy distributor in Newmarket, ON, died from injuries sustained after falling 4 metres from a racking system. In November 2006, a temporary worker at Cam Tool & Die Ltd., also in Newmarket, was fatally crushed when a power press cycled. In November 2008, the two companies received fines of $250,000 and $120,000, respectively (see “In the courts” for more on these incidents).

Under Ontario’s Occupational Health and Safety Act, employers who hire temporary workers are legally responsible for their health and safety. Employers are also responsible for ensuring that contractors working on site comply with the act.

Appearing below are strategies and steps that employers can take. But first, what the law tells us.

Treat temporary workers as your own

No court case in Ontario has explained precisely how an “employer” may apply the standard of due diligence to contract employees. However, the case of R. v. Grant Forest Products Inc. provides a sense of the lengths to which an employer will be expected to go, particular with a young, unsophisticated, temporary contract worker, performing work on the employer’s own equipment and machinery.

In this case, Grant Forest Products Inc. employed temporary workers to plane boards beside operating equipment. Justice Belanger of the Ontario Court of Justice held that the employer failed to meet its due diligence obligations to protect the contract worker, who lost several fingers while adjusting machinery that had not been locked out.

Although the company had provided a mandatory half-day contractor safety orientation program to the workers, which included instruction in the dangers of touching live equipment, and had warned employees to lock out equipment before servicing, such training was deemed insufficient. The court found that the employer had provided only general training to the contract workers, and in the circumstances should have provided specific lockout instructions. These circumstances included a temporary worker performing work on the employer’s equipment, and who was not being actively supervised by a supervisor, the temporary agency, or the employer, Grant Forest Products.

Don’t go blaming the other guy

All three firms mentioned had hired workers from temporary placement agencies. Although the workers were employed by the agencies, and not Ganz, Cam Tool &Die, and Grant Forest Products, these firms were held partly responsible for the incidents.

They would also have been held responsible even if the temporary workers’ employers were on site, managing the work. This position—no one employer can rely on another employer’s failure to comply as a defence—was reinforced recently by the Ontario Court of Justice in R. v. National Wrecking Co.

In this case, American firm National Wrecking Co. had been contracted to demolish a building in Sault Ste. Marie, ON. National subcontracted Howard Avery Construction to perform the work. Avery supplied personnel, some supervision and equipment, and was in charge of safety for the project.

After a 2500-pound steel door was cut from supporting structures, it was left leaning against a wall. National's supervisor didn’t inspect the door, and instructed a National worker as well as one of Avery’s workers to remove the cut steel. The workers, not advised that the door was loose, pushed the steel pieces against it. The door fell on the subcontractor's foreman, who was fatally crushed.

There was no dispute that National was in charge of the project. However, as part of its due diligence defence, National argued that, as an American company, it had no knowledge of Ontario safety standards and that, for this reason, it gave Avery the task of ensuring the worksite was safe. Accordingly, continued National, Avery should be the entity liable for the incident, and the failure to charge Avery was an abuse of process.

The court rejected this reasoning, stating that there is no material distinction between construction/demolition safety in Ontario as compared to US states, and that the determination of where liability falls is not dictated by the entity in charge of the safety policy.

The court also frowned upon the practice of finger pointing: “Finger-pointing encourages a compartmentalization approach to safety thinking—you consciously, or more often subconsciously, delegate responsibility for safe thinking to others, without recognizing you are the gatekeeper for the protection of others.”

The court found that National, by arguing Avery should have been held responsible for the actions of its own employee, was relying on a civil concept of vicarious liability. Such a concept, noted the court, had no bearing on the approach to liability under the Occupational Health and Safety Act.

Taking precautions

Given the extended definition of “employer,” and the stringent court-developed comments on OHS due diligence made to date, a firm must ensure that the steps taken to ensure the safety of contractors’ and subcontractors’ employees are very similar if not identical in nature to steps it would take respecting its own employees. The standard of “due diligence” applied by the courts will be the same.

As an employer once removed from the situation, those due diligence steps will in some instances involve reviewing what the contractor has done. Where a contractor has little to no OHS program of its own, or where it may be appropriate that the contractor follow the employer’s program, in the words of the Justice in the Grant Forest Products case, due diligence may involve the entire panoply of what would be required if the worker were a direct hire.

Employers must creatively and effectively find the means to ensure this secondary due diligence for situations involving contracting for work or services.

8 strategies for hiring temporary workers

No license is required to operate a temporary agency, and my experience has been that many agencies fail to meet to due diligence standards. Given this unfortunate reality, an employer hiring temporary workers should, under no circumstances, expect and/or rely on full compliance from a temporary placement agency. Consider instead the following strategies.

• Do not blindly accept what a temporary placement agency tells you about their workers. Do some digging yourself. Ask to see evidence of a worker’s qualifications, licences, certifications and test results where applicable. When in doubt, carry out your own assessments or consult with industry regulators to ensure the appropriate certifications have been acquired. Do not accept naked promises.
• Assess whether the temporary agency is health and safety minded. Is it familiar with and knowledgeable about the Occupational Health and Safety Act? Is there a training program and policy in place? Is it being used and implemented? Is the agency at all concerned about the quality of your own safety program, your safety record, and what training initiatives you intend to apply to the new temporary workers?
• Be careful about dealing with temporary agencies that do not perform a safety audit of your facility and conduct a detailed site visit. Temporary agencies have legal obligations as “employers” under the act. Temporary agencies that do not perform site-specific safety evaluations of your workplace are not meeting due diligence obligations and should be avoided.
• Ask for a list of references. You are probably not the temporary agency’s first customer. Other employers have likely used workers from the agency and may be able to offer insight into how the agency operates, its level of regulatory compliance, training practices, and whether the workers are familiar with health and safety considerations generally.
• Be involved in the screening and selection process. You know what the job entails and are looking for specific qualifications and experience. Assist the agency by explaining your requirements clearly. You may even want to review the work history and qualifications of top applicants yourself and choose from the pile.
• Carry out your own pre-qualification assessment, training and monitoring. You must ensure temporary workers know how to perform the job safely. The case law has held, however, that a prudent selection process is not sufficient. Effective training and ongoing monitoring is also necessary. Even with an effective pre-qualification and/or training system in place, employers are at risk of being found to have fallen short of due diligence requirements without evidence of on-going monitoring.
• Address temporary workers in written policies, and clarify any processes for pre-qualification, training and monitoring. Do not deprive temporary workers of the training available to permanent workers. Where relevant, provide the same training. Maintain written records of any training given to temporary workers just as you would for permanent workers.
• Notify your temporary agency if and when the worker is assigned to different duties or different machines. Temporary placement agencies have a duty to ensure that workers are only doing the jobs they are trained to do and only operating the equipment they are qualified to operate. Ongoing, two-way communication between the agency and the employer will avoid gaps in safety

IAPA offers two courses specifically addressing contractor safety:

• Hiring Outside Contractors (half day)
• Managing Safety of On-Site Contractors (half day)

IAPA also offers

• two courses with new and young worker orientation as a component:
  • the international award-winning First 4 Weeks Health & Safety Orientation and Training (self-study)
  • Effective Supervision Part 1 (3 days)
• a free download: Orientation Training
• consulting services that can help you create a contractor safety program, or identify and eliminate gaps in an existing program.

Hazards to or posed by contract workers are one of 25 risk assessment errors discussed in an article from the December 2008 issue of Accident Prevention e-News. Read it here.

Immigrant worker risks
By Anita Dubey

Two new studies conducted by the Institute for Work & Health (IWH) show that immigrant workers may have higher injury risks, and experience potentially more hazardous working situations.

Immigrant men, for instance, are twice as likely to sustain workplace injuries that require medical care compared with men born in Canada. The second study showed that immigrants in general face poorer job conditions compared with their Canadian-born peers.

“Immigrants with five or fewer years in Canada are more likely to have higher qualifications than their jobs require, to have physically demanding jobs, and to work fewer hours than they want to,” says Dr. Peter Smith, a scientist at IWH and the lead researcher of both studies. New immigrants are also less likely to have supervisory responsibilities, to be unionized, or to have access to employment benefits.

Some of these situations, such as physical demands, raise immediate issues for injury prevention. But it is also likely these labour market experiences have long-term health implications.

Why their risks may be different

Take the example of a newly arrived, university-educated immigrant working in a manufacturing plant. His only work experience is in an office. This worker might not even think to ask about safety issues in his new job. He might not realize when work is becoming unsafe. In general, he might be unused to physical labour. His new job may only require a high school diploma, not a university degree. This type of over-qualification has been linked to health concerns in the long run.

As Canada’s immigrant population continues to grow, and the characteristics of workers change, workplaces will have to continually adapt their prevention strategies.

While the two IWH studies shed some light on immigrant workers’ situations, they also raise more questions.

For instance, it’s not clear why new immigrant men report a higher rate of medically treated injuries due to work. One explanation might be that new immigrants have more severe work injuries, possibly because they work in more hazardous settings, suggest Smith and co-author Dr. Cameron Mustard, IWH president.

To learn more, the institute is conducting further research, including a study of injured immigrant workers and their experiences. The studies so far have identified some specific areas of concern. For instance:

• Have immigrant workers (and in fact, all workers) received safety training?
• Have workers had safety training in a language they know well? Is it clear that they have understood the training?
• If immigrant workers have jobs in hazardous settings, do they know about injury prevention measures, such as machine guarding or personal protective equipment (PPE), such as safety goggles or hearing protection, that they should have access to?
• Do workers know they have the right to ask for PPE?
• Do they know they have the right to refuse unsafe work?

Working conditions may be worse for certain types of immigrants. In particular, immigrants who are visible minorities, whose mother tongue is not English/French, or whose highest degree is from outside Canada are more likely to be overqualified for their jobs, to lack supervisory responsibilities, and to be underemployed.

These two studies were funded by the Workplace Safety and Insurance Board’s Research Advisory Council. The study of working conditions was based on interviews with 76,000 workers, from four waves of Statistics Canada’s Survey of Labour and Income Dynamics (SLID). It was presented at a Statistics Canada conference in May. The study of work-related injury in immigrants was published online on July 9, 2008 in the journal Occupational and Environmental Medicine. It used information from 97,000 workers in the Canadian Community Health Survey in 2003 and 2005.

How IAPA can help

IAPA offers several resources that can help employers and supervisors reduce the risk of injury and illness among immigrant workers:

• First 4 Weeks Health & Safety Orientation and Training, an award-winning self-directed training program containing supervisor and worker programs. Also available: on-site facilitated training that combines group and self-directed learning
• Orientation Training, a free, 6-page download that includes a checklist of items to be covered in an orientation program
• Effective Supervision, a multi-module training program that helps supervisors learn how to manage their role in due diligence, risk analysis and more

Since young and immigrant workers share certain characteristics, IAPA young worker health and safety downloads may also offer value:

• Employing Young Workers – Tips for Employers/Tips for Supervisors, two downloadable pages each of insights and suggestions
• Protecting Yourself – Tips for Young Workers, injured worker Candace Carnahan’s story, in her own words
• Your Teen at Work – Tips for Parents, need-to-know information for parents, plus important questions to ask your teens about safety in their workplace

Anita Dubey is the Institute for Work & Health’s Manager, Communications: adubey@iwh.on.ca.

2009 H&S promotions calendar

Sustaining momentum for your health, safety and wellness programs and activities depends on a number of factors, including targeted promotions and campaigns. To help you leverage opportunities, IAPA offers the following calendar of health, safety and wellness promotions. Where known, related organizations are indicated. To learn more, Google those organizations.

Protecting workers from extreme weather

How prepared are you and your workers for extreme winter weather? Most workplaces already have some emergency planning in place, but not necessarily for winter storms that could trap workers on the road or at work.

Extreme weather poses special concerns, says IAPA consultant and joint health and safety committee member Gordon Leffley. “For instance, many companies have plans for evacuating people. But how many have thought through what happens when weather’s the issue and you can’t let anyone out? Companies need to have back-up plans in place, particularly in areas vulnerable to sudden, heavy winter storms, and where power sources may be less dependable.”

Are such plans really necessary? “It can be a life and death issue, especially when you’re talking about letting people head onto highways and roadways,” says Leffley. “But even if you never need to implement these plans,” says Leffley, “just having them in place tells workers that their personal safety is important to the organization.”

On a more pragmatic level, such plans can also minimize business disruption and help an employer fulfill its legal obligations. Conversely, an employer or manager who knowingly places workers at risk may be liable for the consequences.

Taking steps

After last year’s record snowfalls, and winter’s early arrival this season, many employers are considering additional measures to help keep workers safe and their operations running. Here are some options to consider.

1. Add the following to your emergency preparedness policy and procedures:

• a general statement about facility closing that reflects the expectations of your industry sector, the hazards posed to employees, and conditions under which the facility would consider closing, such as excessive snowfall, rain, sleet, tornadoes and other serious conditions that may endanger travel to and from work
• a decision-making hierarchy that specifies who has authority to close the facility
• a notification process for closing that takes into account how employees, clients and suppliers will or can find out about a closing. Possible options include an announcement on a local radio station, a recorded message on the company’s incoming phone line, and a calling protocol (e.g., employees contact their immediate supervisor)
• a list of essential jobs or functions that must be performed regardless of weather conditions and a process for ensuring that these essential services can be maintained
• an accountability system so that, if an emergency develops, you should know who’s on site and where they are

2. To ensure business continuity,

• develop a plan to ensure those essential jobs can be performed in extreme weather. Involve workers, suppliers and customers as needed
• develop alternative work plans (e.g., working at home, flex time) to help workers maintain productivity while responding to changing weather conditions
• establish support agreements with nearby firms, facilities or competitors. “Employers in a small community typically pool resources, so that emergency services like transportation in extreme weather and supplies such as blankets, pillows, cots and food can be shared,” says Leffley. “Also, businesses may engage in what is called reciprocal manufacturing arrangements, so that they can help one another in dealing with emergencies, including weather. For example, if a poultry processing firm’s refrigeration system goes down, such a plan would allow it to ship its product to another firm for storage or processing.”

3. To protect workers while on the road,

• make driver safety training compulsory for all workers required to drive as part of their job. At IAPA, these employees must renew their training every three years
• make snow tires compulsory on vehicles used by workers who are required to drive as part of their job. For all other workers, initiate a voluntary snow tire purchase program
• encourage workers to maintain emergency kits in their vehicles. See below for suggested kit contents
• assign discretionary authority so that workers can take action if extreme weather conditions are forecast. “I’m required to evaluate weather conditions,” says Leffley, “and if I consider them to be inappropriate, I’m expected to reschedule appointments. If I’m caught in a storm and can’t make it home, IAPA will cover my accommodation expenses. This means I can have confidence that my decisions about my safety will be supported by my employer, and that’s a good feeling.”

4. To protect workers who may be forced by weather conditions to remain on site,

• develop with worker input an on-site shelter plan. Workers can’t be forced to shelter in place, so obtaining buy-in early will increase the likelihood that they will be comfortable in deciding to stay, particularly when workers may be needed to maintain essential services or processes
• ensure the temporary accommodation has light and heat
• keep essential emergency supplies on hand, such as water, food, bedding and other requirements
• ensure access to a food preparation facilities so that workers can prepare food

An emergency kit for your car

Keep the following supplies in the trunk of your vehicle at all times. And keep the gas tank at least half full all the time.

• suitable container or carrying case
• first aid kit
• “Call Police” sign, SOS bag, banner, or fluorescent bag
• flashlight with batteries
• emergency triangle, warning light, or road flares
• candle, waterproof matches, and a deep can
• work gloves and coveralls
• foil emergency blanket
• fluorescent vest
• seatbelt cutter (kept in an accessible location, such as the glove compartment)
• shovel
• cell phone and portable charger
• change for public pay phone
• emergency phone numbers
• non-perishable food items, water, paper towels
• scraper and snowbrush
• antifreeze, windshield washer fluid
• spare tire, jack, and tools
• tow rope and jumper cables
• fire extinguisher
• roadmaps and compass
• sand, salt, or cat litter (for traction in snow)
• loud whistle
• multi tool/utility knife
• tire pump/inflator
• warm clothing, boots, and water-proof jacket
• small hammer to break a window

How IAPA can help

• Attend emergency preparedness sessions and exhibits at Health & Safety Canada 2009, IAPA’s national conference and trade show in Toronto, and regional IAPA conferences across the province. A conference program for Health & Safety Canada 2009 will be posted on IAPA’s website later this month, and mailed with the February/March issue of Accident Prevention magazine
• Talk to an IAPA consultant, who can help you conduct an emergency preparedness gap analysis, explore opportunities to improve existing precautions, and help you create and conduct preparedness tests. Call 1-800-406-IAPA (4272)
• Order Emergency/Disaster Guidelines and Procedures for Employees a comprehensive book that can help prepare you for eventualities arising from disasters or emergencies

In the News

Honours

Mental health advocates Michael J. Kirby and Paul E. Garfinkel were named Officers of the Order of Canada on December 30, 2008.

Michael Kirby, who will serve as honourary chair of Health & Safety Canada 2009, IAPA’s national conference and trade show, received the honour for his contributions to public policy and good governance in Canada, and more recently for his leadership of the Mental Health Commission of Canada. While serving as a senator, Kirby chaired a committee that studied mental health, mental illness and addiction. The committee’s final report, Out of the Shadows at Last, was released in May 2006. In March 2007, Kirby was appointed chair of the Mental Health Commission of Canada.

Paul E. Garfinkel received his honour for his contributions to the field of mental health, notably as a psychiatrist, advocate and researcher specializing in eating disorders. Garfinkel is president and CEO of the Centre for Addiction and Mental Health.

The Order of Canada, which recognizes outstanding achievement and service, is the country’s highest civilian honour for lifetime achievement. There are 3 levels of membership: Companion, Officer and Member.