Practical suggestions and tips on economical ways to strengthen your safety program during the pandemic.

Written By Jennifer Miller, Simon Foxcroft and Mathieu LaFleche

"When fishermen cannot go to sea, they mend their nets."

The pandemic has created very challenging economic conditions while the health hazard of the virus has itself brought occupational health and safety (OHS) issues to the forefront. Complying with OHS laws is difficult at the best of times, but how do you cope when your budgets are slashed, your workforce is diminished, your work sites are at risk of viral contamination and workers may be working remotely?

In an effort to support organizations in these trying times, we wanted to share some ideas on how you can economically maintain or improve your OHS compliance and safety programs using existing resources.

Freebies

Everyone loves free stuff. Even lawyers.

One of the easiest ways to stay on top of the law and gain immediate access to free precedents is to sign up for OHS bulletins issued by your relevant regulator. Some of the links in Western Canada are as follows:

• For B.C., visit the WorkSafeBC website;
• For Alberta, visit the Government of Alberta website.

If your organization operates across Western Canada, staying up-to-date with legislative requirements can be difficult. WorkSafeBC, in particular, issues revisions to its requirements on a frequent basis. While this makes it difficult to keep hard copies of legislation current, OHS bulletins issued by the regulators will typically provide advance notice of when a change is afoot.

In addition to receiving advance notice of regulatory changes, regulators issue interpretive bulletins offering guidance about how the regulator itself interprets a particular legal requirement. Readers need to be cautious about such interpretive bulletins as they may differ from how a requirement may be interpreted by the Courts. With that lens in mind, it is always beneficial to know what your regulator is thinking as, if nothing else, it will signal their likely focus for any subsequent inspection or investigation. The regulators also maintain extensive searchable databases of forms and resources that are logically sorted by topic, industry and audience.

At their best, these online resources provide helpful and timely guidance on hot topics of concern to employers. A terrific recent example is the Alberta OHS e-bulletin on April 17, 2020, that provided a hyperlink to the Alberta Construction Association's paper on managing a response to the virus. This document sets out an exceptional approach to viral hazard assessment, elimination and control that could be adapted for almost any work site.

In addition to the regulators themselves, most provincial safety associations also maintain regular bulletins and online resources that provide industry-specific and highly educational information and precedents that are adaptable to the operations of many employers. In a similar vein, Bennett Jones has established a COVID-19 Resource Centre, which is accessible here .

Putting Existing Resources to Use

1. Consider Your Contracts

Unlike freebies, not everyone loves contracts. Despite that aversion, now is exactly the right time to dust off your existing contracts to review how they address OHS considerations. Why is this?  When everyone is busy and time is of the essence (literally and contractually), contracts can get signed in a hurry, if at all. The current situation offers an opportunity to consider revisions for future contracts to include robust and up-to-date OHS terms, and to assess if there are opportunities for financial efficiencies in existing contractual safety obligations. Here are some key questions to consider while doing this:

• Have your contracts taken into account recent legislative changes? For example, any provincially regulated contract for work in Alberta that pre-existed June 1, 2018, may have contained prime contractor obligations and compensation that may no longer be applicable given the restriction of that role to oil and gas, and construction work sites, and on April 6, 2020, a revised version of the B.C. Workers Compensation Act came into effect with reorganized numbering and revised wording; 
• Are there opportunities for further contractual collaboration on a multi-employer work site? For a project that attracts a prime contractor, section 178 of the Alberta OHS Code allows a prime contractor and the other employers at the project to collectively provide first aid services, supplies and equipment and provide a first aid room as required by Schedule 2 of the Alberta OHS Code. Collectively addressing first aid requirements will almost certainly result in cost efficiencies, but must be done through a written agreement;
• Have you considered your jurisdiction? If your organization works in the construction sector, the OHS laws applying to multi-party construction work in B.C. versus Alberta are very different. An Alberta precedent simply will not work in B.C. Work site "owner" obligations are also very different between OHS laws in B.C., Alberta and Saskatchewan;
• Are there obligations and costs that you can contract out of? For example, since 2018, the Alberta OHS Act has new safety obligations for work site owners, but also new opportunities to contract these obligations away; and
• Have you carefully considered which safety legislation is applicable to the activities being performed under the contracts? Depending on the nature of the activities anticipated by the contract, varying health and safety legislation will be applicable. For example, in Alberta there is often a singular focus on the requirements of the Alberta OHS Act while ignoring the potential application of the Safety Codes Act or the Public Health Act.

2. Do You Know Where Your Acceptance/Approval/Variance Is?

One of the items often lost in the shuffle of busy organizations is a vital acceptance, approval or variance that allows for a practice other than that prescribed by an OHS law. Now is an excellent time to determine if your organization:

• Has any (and also consider if they have expired);
• Is performing work in compliance with the alternative practice;
• Should consider withdrawing or refreshing the alternative practice due to a material change in any relevant circumstance (law, engineering standard, industry practice, etc.); and
• Has placed appropriate calendar reminders with respect to existing alternative practices for any future review or renewal that may be required.

A complementary activity is considering whether there may be legislated OHS requirements that are particularly unsuitable to your operations, which might be avoidable through an acceptance, approval, or variance. While OHS requirements apply generally, they are not always a "one size fits all solution" and there may be an equally safe and more cost-effective way to do something than that which is specifically set out in a legislated requirement. In these circumstances, bad habits of work-around solutions can develop. Organizations looking to avoid this should consider whether it is time to ask for an alternative practice, provided it can provide an equal or greater factor for safety.

The potential avenues that are open to organizations seeking alternative practices are ever-changing and so it is worthwhile revisiting this on a periodic basis. For example, in 2018, the Alberta OHS Act changed considerably with regard to alternative practices. Among other things, the Alberta OHS Act now includes an inter-jurisdictional opportunity where the regulator may approve, on certain conditions, an alternative standard or equipment that complies with the requirements in another Canadian jurisdiction. This avenue alone could create significant financial efficiencies (particularly for employers operating in multiple provinces) without compromising safety in any way.

3. Obtain a COR/SECOR

A Certificate of Recognition or Small Employer Certificate of Recognition issued by any of the Western Canadian Partnerships in Injury Reduction bodies provides external confirmation that your organization has established a health and safety management system. Certifying partners have implemented measures such as remote audits and modified audit procedures that respect social distancing practices, so there is no reason to take your foot off this particular pedal.

There is no question that this type of recognition has potential positive financial impacts for organizations such as:

• An enhanced health and safety program reduces the potential for workplace incidents or injuries and their corresponding financial impacts; 
• There are generally immediate consequential reductions in workers compensation board premiums; and
• The receipt of a COR/SECOR can improve an organization's competitiveness in future commercial bids or negotiations.

4. Dust off Those Policies and Procedures

Contrary to how you may be feeling, it is actually an excellent time to revisit your OHS policies and procedures. Like contracts, organizations can lose sight of how closely their OHS policies and procedures track work that is being performed and ever-changing OHS requirements. Here are some questions to ask your team:

• Do our policies and procedures comply with the current OHS law?
• Do our policies and procedures comply with the OHS law in the jurisdictions in which we are operating?
• Do our policies and procedures address the activities that our workers are undertaking?
• Do our policies and procedures address the equipment that our workers are using?

Of course, you will also need to modify and update your policies and procedures to address the new hazard presented by the virus.

In addition to periodically reviewing policies and procedures for compliance against changes to legislative requirements, organizations should also consider periodic review to address any changes to manufacturer's specifications for equipment and supplies. While these specifications are not the law, there are generally legal obligations to account for them. For example, the Alberta OHS Code requires that employers ensure equipment and supplies are erected, installed, assembled, started, operated, handled, stored, serviced, tested, adjusted, calibrated, maintained, repaired and dismantled in accordance with the manufacturer’s specifications (or the specifications certified by a professional engineer). An economic downturn may result in organizations having idle engineering capacity that can be deployed to assist with specification identification and review. Dispensing with specifications that are not applicable to your organization through an engineering review can offer potential cost savings in the future. Available engineering capacity can also be utilized to inspect and audit equipment fleets sitting in yards awaiting future deployment.

This type of evaluation also creates an opportunity to implement a system of periodic review to monitor and follow-up on OHS issues. Let us call these "improvement opportunities". For example: 

• If the OHS law requires a review of policies and procedures within certain time intervals, are calendar reminders being placed and being followed?
• How are issues raised in internal or external safety audits, inspections and investigations being remedied?

With staffing continuity issues on the rise, we recommend multiple personnel notification systems for any monitoring process so the departure of key team members does not result in major gaps occurring.

Although very serious, the economic downturn and pandemic are temporary issues. The importance and value of maintaining a safe work place is ongoing.

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