I thought I would start off in 2010, by sharing a few thoughts about how employers and management can ensure compliance with occupational health and safety (“OHS”) legislation, prevent injuries, and reduce workers’ compensation costs.  I head into my 27^th year of practice, with the vast majority of it focused on employment law, OHS law, and representing employers on workers’ compensation matters.

So here are some suggestions of how employers and management can ensure OHS legislative compliance, reduce risk of workplace accidents, and substantially reduce workers’ compensation costs.

1. Conduct Legislative Compliance Audit. 

It still shocks me how many large employers fail to audit, annually or ever, their OHS management system based on legislative or legal requirements.  I really do not understand why, when OHS legislation is what an employer will be measured against by OHS regulators across Canada, that employers do not take this issue seriously.  It is a simple matter of internally, or through an external consultant, performing a detailed audit based on a legislative compliance checklist.  At Gowlings, we have developed an OHS legislative audit that we have trademarked as the OHSLaw Gap Analysis™.  Although our checklist is proprietary, the concept is not.  Any organization, that is serious about OHS legislative compliance, in my opinion, should consider auditing its own OHS management system against the legislation that it must comply with.

2. Job Hazard Analysis

A job hazard analysis, referred to in some jurisdictions as a risk assessment, is a workplace or task specific review and analysis of the work to be done, the OHS risks associated with the work, and the means by which the risk can be either eliminated or controlled.  So, for example, if a construction company is starting up a new project, this would mean that all of the essentially tasks to be performed on the site should be reviewed, analyzed, and assessed for their OHS hazards.  Hazards can then be either eliminated, or more likely, controlled.  When you take a careful look at OHS regulations and in Alberta the OHS Code, you are essentially seeing control measures to protect workers from OHS hazards.  Therefore, in order to ensure that there is compliance with the regulation, but more importantly protect workers on the job, performing a job hazard analysis is an effective means by which workplace incidents and, injuries and workers’ compensation claims can be avoided.

3. Reducing Workers’ Compensation Costs.

Employers that complain about the workers’ compensation system in Canada often do not know its historical origins and the benefits that they have received under the system.  However, that does not mean that employers should be complacent about seeing workers’ compensation costs escalate, out of control, by blotted workers’ compensation Boards and bureaucracies.

I have three thoughts for employers reduce their workers’ compensation costs, none of which mean reducing payments to workers who are injured on the job and rightly deserving their benefits under the applicable workers’ compensation system in their jurisdiction.  First, help the injured worker get back to work and full pay.  Employers should remember that workers only earn a portion of their net average earnings from workers’ compensation benefits. Therefore, there is a strong economic incentive for workers to get back to work and employers need to assist workers in providing modified duties, early and safe return to work programs, and supporting initiatives of workers’ compensation Boards to provide rehabilitative services to workers.

Second, employers and employers’ associations need to get more involved in the management and financing of Workers’ Compensation Boards. I have suggested for years that employers be more assertive about the right to sit at the table with members of Workers’ Compensation Boards, that they fully fund, and demand more input, efficiency, and effectiveness in delivering benefits and services to injured workers and ensuring financial liability of the system. 

Third, employers need to challenge questionable or bogus claims.  From my experience, there is a very small but real group of workers who would rather “rip-off” the workers’ compensation system than play by the rules.  If management has concerns about the legitimacy or honesty of a claim that a worker was injured at work, employers should assert its rights to appeal through the appropriate authority.  Workers can reduce costs by successfully challenging questionable claims.  Workers will also win in that legitimate claims will be allowed, supported by employers, workers’ compensation benefits payable to those who are truly injured at work.

So there you have it, specific recommendations on how to improve OHS legislative compliance, reduce incidents and injuries at work, and reduce workers’ compensation costs.  Quite sincerely, if I never had to defend another OHS prosecution involving a workplace fatality, I would be delighted.  However, approximately 1000 workers are killed every year in Canada, on the job, that day seems a long way away.  However, as Gowlings assists clients in achieving OHS compliance, reducing incidents and injuries on the job, and reducing workers’ compensation costs, we are doing are part to help in that noble cause. 

Any comments or follow up on this is welcomed.  As well, subject to editorial review, be posted on our website.  Visit Gowlings’ OHS national practice group at www.gowlings.com/OHSlaw.  Please feel free to contact me at norm.keith@gowlings.com.