Proposed Standard for Psychological Health and Safety in the Canadian Workplace
A new and surprisingly complex Canadian Standards Association (CSA) Standard may be arriving at and impacting Canadian workplaces soon. A proposed Standard has been developed, setting out optimistic goals and processes for achieving "psychological health and safety" in the workplace. Policies, procedures, hazard identification, incident investigation and monitoring activities may be required, in addition to all of the existing steps being taken to develop and manage occupational health and safety systems.
The CSA, which develops standards for business, industry, government and consumers, released the draft Standard on November 1, 2011 for a period of public consultation which ended on January 6, 2012. The final Standard, which is expected to be published in early 2012, is intended to provide organizations with the necessary tools and guidance to achieve "measureable improvements in psychological health and safety" for Canadian employees and prescribes specific steps for employers to take to develop and maintain psychologically healthy and safe workplaces. As currently drafted, the steps prescribed and obligations imposed by the Standard are significantly broader than those currently imposed on employers under occupational health and safety and human rights legislation and the breadth of the Standard raises concerns about its viability for Canadian employers.
For an introduction to and analysis of the Standard, please see Heenan Blaikie's OHS & Workers' Compensation Update "National Standard for Pscyhological Harm and Safety in the Candian Workplace Released".
An Employer is Liable for Acts of Harassment Committed by Those Who Exercise De Facto or De Jure Authority Over Employees
The provisions of article L. 1152-1 of the French Labour Code defining and prohibiting bullying do not provide any details as to the perpetrator involved.
In a recent case it was decided that the employer has towards its employees a "safety obligation" and must, therefore, protect their health and safety in the workplace, particularly with regard to bullying. This obligation applies to the employer himself and to all employees. It also applies with respect to the actions of persons who exercise de facto or de jure authority over the employees. The fact that the employer himself commits no personal fault does not exempt him from liability. In this case, a fast food manager was the victim of bullying by a manager of a third company that the employer had a license agreement with (Cass soc. March 1, 2011, n ° 09-69616).
A decision of 19 October 2011 (Cass. soc., October 19, 2011, n°09-68272) rules likewise for a cleaning person hired by the property management company of a building who was bullied by the director of the homeowners' association. An earlier case ruled likewise and considered the employer as being liable for his wife's behaviour towards the employee who she harassed (Cass. soc., May 10 2001, n°99-40059).
Every Person Counts When Reporting Accidents in Ontario
A skier suffers a broken arm. A student is knocked unconscious during class. A patient dies in hospital. While sad and unfortunate, such incidents did not generally attract an obligation to report to health and safety authorities. That is no longer the case following the decision of the Ontario Divisional Court in Blue Mountain Resorts (pdf).
In this case, a patron drowned in an unsupervised indoor swimming pool at the Blue Mountain resort. No Blue Mountain workers were in the pool area at the time and the drowning was not reported to the Ministry of Labour ("MOL") because it did not involve a worker. During a field visit, a MOL inspector learned of the drowning and issued an order requiring Blue Mountain to report the fatality based on subsection 51(1) of the Occupational Health and Safety Act ("OHSA"), which requires a constructor or employer to make a report to the MOL "[w]here a person is killed or critically injured from any cause at a workplace". The Ontario Labour Relations Board ("OLRB") upheld the order on appeal and Blue Mountain filed an application for judicial review.
Continue Reading...Obligatory Internal Health and Safety Service
An employer who employs more than 100 employees is obliged to create an internal health and safety service. It should be composed of its own employees appointed by the employer itself. This is a consequence of the ruling of the Supreme Administrative Court of 12 January 2011 (I OSK 1120/10). It had been disputed whether such an employer could, instead of creating an internal health and safety service, outsource this activity to an external service provider. The ruling cited above confirms that the employer may entrust the health and safety service to an external company only if it is able to prove that it does not have duly qualified candidates among its own employees. The employer must be able to prove not only that its employees do not have proper qualifications, but also that they are not willing to acquire them.
Dangerous International Employee Assignments: Littler Report Guides Employers Through the Issues
The current upheaval in Egypt and the rest of the Middle East serves as a reminder that overseas assignments can inherently be fraught with risk. The potential dangers of natural disasters, kidnapping, and terrorist attacks are wide-ranging, but the key legal, and practical, inquiries remain constant: to what extent did the employer have a legal or ethical obligation to prevent what occurred, and could the employer have prevented what occurred by implementing a thoughtful plan.
A February 2011 Littler Report, "Managing the Global Workforce: A Legal and Practical Guide to Dangerous International Employee Assignments," examines the issues facing employers under U.S. law and in a sampling of other jurisdictions. This guide also outlines a series of practical steps that employers can and should take to mitigate the risks inherent in international assignments. While there may be no way to absolutely prevent incidents of this nature, there is no substitute for effectively planning for the contingencies that may arise in international assignments. To learn more, continue reading this Littler Report, written by Philip M. Berkowitz and Michael G. Congiu.
Photo credit: Captura
Independent Contractors Count in Determining if Joint Health and Safety Committee Required
The Ontario Court of Appeal has ruled that independent contractors must be counted when determining if an employer has met the threshold number of employees required to establish a Joint Health and Safety Committee ("JHSC") under the Ontario Occupational Health and Safety Act ("OHSA").
In Ontario (Labour) v. United Independent Operators Limited (pdf), United Independent Operators Limited ("United") was charged with failing to ensure that a JHSC was established and maintained at its workplace. United operated as a load broker and retained independent truck drivers to perform work. It argued that it was not required to establish a JHSC because its independent contractors were not "regularly employed" and section 9 of the OHSA only required an employer to establish a JHSC where 20 or more employees are "regularly employed". The Court of Appeal rejected this argument and found that independent contractors are "regularly employed". The Court noted that making a distinction between traditional and non-traditional employment relationships would deprive workers in non-traditional relationships of the protections afforded by a JHSC and would be contrary to the purposes of the OHSA.
Report Recommends Changes to Ontario's Occupational Health and Safety Regime
The Expert Advisory Panel, which was appointed to review Ontario's occupational health and safety system, has released its report containing 46 recommendations. Among other things, the report calls for:
- The creation of a new Prevention Organization within the Ministry of Labour;
- Amendments to the Occupational Health and Safety Act to allow co-chairs of Joint Health and Safety Committees to submit written safety recommendations to employers;
- Mandatory training for health and safety representatives;
- Mandatory health and safety awareness training for all workers and supervisors;
- Mandatory entry-level training for construction workers;
- Mandatory fall protection training for workers working at heights, and
- A review of enforcement tools available to inspectors, including establishing administrative monetary penalties.
Complete Ban on Smoking in Workplaces
No more smoking rooms at workplaces since 15 November 2010. The Anti-Nicotine Act introduced a nationwide smoking ban in public premises. This includes workplaces. Exemption can be given by an owner or administrator of a building, where a workplace is situated, who has the discretion to create smoking rooms. Until 15 November 2010 it was held that smoking rooms were obligatory at workplaces. The amendment to the Anti-Nicotine Act does not change the regulation on technical requirements for smoking rooms. These requirements concern, e.g., the frequency of ventilation. An old ordinance on health and safety which requires smoking rooms at workplaces still technically applies today, but being contrary to a legal act of a higher rank it is not binding. The Minister of Labour and Social Policy is working to harmonize the ordinance with the new regulations in the Anti-Nicotine Act.
Avoiding the Hangover: Minimizing Liability for Holiday Parties
The end of the year is a time to celebrate. Employers often take the opportunity to join the celebration by sponsoring holiday parties for employees and sometimes their families. Employers consider such events an opportunity to foster team spirit by letting employees know that their work is appreciated. In turn, employees appreciate the chance to celebrate with coworkers outside the often hectic workday.
While the holiday party offers many positive rewards, it can also carry with it some unintended negative consequences for employers. This is especially true when alcohol is served, as alcohol consumption can quickly turn an otherwise innocuous office party into a minefield for employer liability.
Holding true to the maxim that "no good deed goes unpunished," employers may face liability for the conduct of employees who become intoxicated during office parties and thereafter behave inappropriately or illegally.
For a discussion of the types of claims that can result from holiday parties and a list of actions employers can take to minimize risks, continue reading Littler's ASAP, Avoiding the Hangover: Minimizing Liability for Holiday Parties, written by Alison Hightower and Gary Bethel.
Photo credit: cooknken
Employer Bans on Smokers: The Next Smokeout?
While the Great American Smokeout encourages smokers to use November 18th as a day to quit smoking or make a plan to quit, employers can use the occasion as an opportunity to review whether they want to implement tobacco-free policies and the potential legal issues involved in doing so. In recent years, many employers have introduced programs that encourage quitting smoking as a means to both promote healthier lifestyles and control health care costs. Other employers, however, have begun to implement strict no-smoking policies that include an outright ban on hiring applicants who are tobacco users. Towards which end of the spectrum an employer may choose to go depends, in part, on state laws that protect lawful activities - such as smoking - outside of the workplace. To learn more about employer bans on smokers, please continue reading at Littler's Healthcare Employment Counsel blog.
Photo credit: Zubi
