1) Understand that "Culture" Impacts Legal Liability
First and foremost, it is critical that your organization fosters a positive safety culture if it wants to limit its legal liability in the realm of occupational health and safety.
While it is extremely unlikely that an organization will be prosecuted for not exhibiting a positive safety culture, a positive safety culture can significantly impact your liability for workplace safety incidents in two ways.
Firstly, it can reduce the potential for and extent of safety-related incidents in the workplace, and thus reduce the likelihood and severity of OHS convictions.
Secondly, if an organization is convicted, it is an important consideration in OHS sentencing and generally speaking, the better the safety culture, the more favourable the sentence for an OHS offence.
2) Know that Other Organizations Can Impact Your OHS Obligations
Many organizations do not know that their ability to meet their legislative OHS duties can be effected by another employer.
Consider a scenario where an organization is the "Prime Contractor", and it hires a sub-contractor. Under s. 18(3) of the Alberta Occupational Health and Safety Act, if that sub-contractor has a "reportable" incident, the Prime Contractor is obliged to conduct an investigation, prepare a report and ensure a copy is available for inspection.
A practical issue can arise in this scenario where the Prime Contractor is unable to complete its duty to conduct an investigation into the incident because of an uncooperative sub-contractor. This is a common reality for many organizations, but can be avoided with appropriate contractual safeguards.
3) Understand How to Achieve Due Diligence
Within the context of OHS, due diligence does not mean that you must stop a negative event from occurring. Rather, it means you are able to demonstrate that you took reasonable practicable steps to try and prevent the negative event from occurring.
Unfortunately, while due diligence asks, "What did you do well?", many OHS investigations are designed to identify and focus only on your organization's faults, and fail to identify the positive steps taken to prevent or mitigate the incident. It is important that incident investigations help your organization understand both what was done well and what was done poorly, so that you have a balanced perspective of your performance, and are better situated to know whether you achieved due diligence.
Due diligence is rarely achieved by taking large, grandiose steps. Instead, it is usually achieved by all members in a group taking consistent, positive steps in their everyday actions and procedures.
4) Know the Importance of Front-Line Supervision
Many employers do not realize that the position that triggers the greatest liability for the organization is the front line supervisor giving direction to the person performing the work.
This is because in many cases, the actions of front line supervisors can bind the organization.Once an employer understands the key role of front-line supervisors in terms of workplace safety and OHS liability, it can ensure that it takes steps to mitigate this risk, including implementing proper training and appropriate policies and procedures.
5) Understand Your Organization's Risk Tolerance
Most OHS legislation in Canada identifies general standards that must be achieved through reasonable practicable steps. There are countless ways for an organization to achieve this general standard based on your specific circumstances. Your risk tolerance determines the extent that your organization will go to achieve these general standards.
What is your organization's OHS risk tolerance? Your organization should make this assessment before policies and procedures are drafted to meet these general OHS standards. Otherwise, your organization could find itself in the unenviable position of possessing certain OHS-related policies and procedures, but lacking the needed "buy-in" from important stakeholders within the organization to comply with those policies and procedures.
6) Acknowledge that OHS Can Be Political
It is important that employers understand that political changes can have significant impacts upon OHS legislation, particularly given the current and potential changes to our political landscape in Alberta and across Canada.
A prime example is the NDP's June 9, 2015 announcement that it will be reviewing the provincial OHS legislation and its application to farm workers, almost immediately following its May 2015 election victory. Currently in Alberta, farm workers are exempt from provincial OHS Legislation, and have been for many years. With the NDP's recent announcement, we may see a major change to the OHS landscape that could considerably affect both farm owners and farm workers.
The world of OHS is not insulated from political changes, and employers must recognize that their political environment can have significant impacts on their day-to-day operations.
For questions regarding your OHS policies and matters, please contact Shilo at sneveu@neumanthompson.com.