Employer Liability & Due Diligence
It is paramount to protect your business. We buy insurance to cover our liability, our automobiles, our life, our health, and we have WSIB insurance coverage that is mandated by the government to cover employees if they are hurt on the job. Numerous facets go into each employer’s liability and their due diligence to maintain a safe workplace. The Occupational Health and Safety Act is a set of laws detailing the duties and responsibilities of Employers, Supervisors, and Workers. Everyone is required to work within and follow Law and applicable Regulations. The Act puts the onus on the Employer to protect workers including the Due Diligence clause.
Internal Responsibility System
One of the main responsibilities is to ensure the Internal Responsibility System is functioning in the workplace. The Internal Responsibility System puts in place an employee-employer partnership in ensuring a safe and disease-free workplace. This is the underlying philosophy of occupational health and safety legislation in all Canadian jurisdictions with the foundation being that everyone in the workplace – both employees and employers – are responsible for his or her own safety and for the safety of coworkers. A functioning internal responsibility system:
- Establishes responsibility-sharing systems
- Promotes safety culture
- Promotes best practice
- Helps develop self-reliance
- Ensures compliance
As the owner of your business, you have put countless hours into starting up and growing your business. The liability that you are exposing yourself to can ruin all your hard work with one employee becoming injured or sick. You have a duty to ensure you take every reasonable precaution to ensure the safety of your workers.
This is referred to in health and safety as “Due Diligence.” Due diligence is the level of judgment, care, prudence, determination, and activity that a person would reasonably be expected to do under the circumstances. Due diligence is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. The defendant must be able to prove all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers. Due diligence is demonstrated by your actions before an event occurs to reduce your employer liability. When determining due diligence, an employer needs to ask themselves:
- Can a reasonable person predict or foresee something going wrong?
- How severe is the potential harm to workers?
- Is there an opportunity to prevent the injury or incident?
- Who is responsible for preventing the accident or incident?
How do you establish due diligence? Reducing employer liability and the chances of being charged can be done by implementing an effective workplace health and safety program. To limit employer liability nd increase due diligence, employers must:
- Have in place written OH&S policies, practices, and procedures.
- Have definite procedures in place to identify and control hazards in your workplace.
- Hold supervisors and workers accountable for safety and health
- Keep records of your program activities and improvement
- Provide the appropriate training and education to the employees so that they understand and carry out their work according to the established polices, practices, and procedures.
- Train the supervisors to ensure they are competent persons, as defined in legislation.
- Review your policies and procedures at least once a year and make improvements as needed
- Investigate unsafe situations or incidents and develop corrective actions and follow through with them
- Regularly inspect your workplace and document your findings
- Take corrective action
- Discipline employees, contractors, volunteers, or any other persons that violate your safety policies and document these occurrences
- Monitor the workplace and ensure employees are following the policies, practices, and procedures.
- Ensure managers and supervisors:
- Talk to new employees about safety during orientation training.
- Meet regularly with staff to discuss health and safety matters.
- Inspect areas of the workplace under their responsibility and respond promptly to unsafe conditions and activities.
- Pay attention to routine and non-routine activities, ensuring that employees understand the hazards and preventative measures.
Ministry of Labour, Training and Skills Development (MLTSD)
The MLTSD sets, communicates, and enforces the workplace occupational health and safety standards while encouraging greater workplace self-reliance. This is done through enforcing the sections and clauses of the OHSA and Regulations. MLTSD Inspectors may enter any workplace at any time without warrant or notice, collect items, test equipment, and require an area of the workplace to not be disturbed. MLTSD Inspectors will:
- Issue orders for non-compliance
- Stop work performed if unsafe
- Seize documents and items (provide you with written notification)
When the MLTSD Inspectors intervene, Employers need to:
- Provide required notices based on work performed
- Notify the MOL if anyone – whether an employee or not – is critically injured or killed at the workplace.
- Correct all substandard acts found
- Comply with all MLTSD Inspector Orders
- Never start work where a Stop Work Order has been issued unless MLTSD Inspector has removed Stop Work Order
- Notify your Health and Safety Representatives or JHSC of Orders
The WSIB administers compensation and no-fault insurance for Ontario workplaces. It is mandatory for most industries to have coverage. Employers have 10 calendar days from the day you hire your first employee to register.
The WSIB issues a clearance, known as a clearance certificate, to relieve the principal of liability for unpaid premiums and other amounts the contractor owes the WSIB, for the validity period of the clearance. Without a clearance, the principal may be liable for the payment obligations to the WSIB.
Businesses must meet WSIB registration, reporting, and payment obligations to have their accounts in good standing, and to be eligible for a clearance. Clearances are valid for 90-day periods and must be renewed.
Employers must report workplace injury within 3 days of learning about an employee’s workplace injury/illness to the WSIB using the WSIB Form 7 – Employers Report of Injury. It is against the law to discourage reporting of a workplace injury or illness. Fines can be issued for late reporting, discouraging reporting, or not providing the completed injury form to the worker.
When the WSIB intervenes, employers need to:
- Report all accidents to WSIB using Form 7 in the timeline required
- Provide workers with a copy of the injury report submitted to WSIB
- Respond to requests for information regarding injuries and return to work
- Pay premiums
- Obtain clearance certificates for company and contractors
- Follow Return to Work Requirements
It’s important to do everything reasonable under the circumstances to protect the health and safety of your workers and protect your business. Leaving this until you are forced to comply may cost your company thousands of dollars in one shot, where a steady expense can be built into your current budget and show you are dedicating resources to your health and safety program. When it comes to employer liability and their due diligence towards keeping employees safe, starting earlier is always better.
If you would like to inquire about different types of consultation services to ensure you are doing your due diligence at your workplace, please Contact Heartzap Safety for more information!