Tuesday, September 9, 2014

What is an employer "duty"?

Duty.  It’s a word we don’t use that often in the context of workers’ compensation and occupational health and safety.  When we do use it, we tend to gloss over it and may miss its real meaning and importance. 

Employers have a “General Duty”  to protect workers in the work place.  Every occupational safety and health regulation has a General Duty Clause.  The US OSH Act specifies it this way (in part): 

SEC. 5. Duties(a) Each employer --

                (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…

WorkSafeBC’s governing legislation uses similar terms and stated (in part) in section 115 of the Workers Compensation Act:

(1) Every employer must  (a) ensure the health and safety of

(i) all workers working for that employer, and

(ii) any other workers present at a workplace at which that employer's work is being carried out

Employers also have a “Duty to Accommodate”.  This duty may emanate from Human Rights legislation but may also be reflected in workers’ compensation legislation  (often in the form of a Mandatory Reinstatement provision).  Ontario’s Workplace Safety and Insurance Act, 1997 states both an “obligation” and a “Duty”

Obligation to re-employ41.  (1)  The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.

Duty to accommodate(6)  The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

The Victorian WorkCover Authority  (and others) use the term “duty-holder” – a term that is useful in conceptualizing that a duty has substance.  It also implies that someone, some individual or group is “carrying the ball” and that its possession may be “shared with” or “passed to” someone else but not dropped or abandoned. 

In common usage, “duty” has a stronger connotation than “responsibility” or even “obligation”.  We often read or hear that someone “ignored”  or “shirked” a responsibility or “walked away” from an obligation but we speak of “dereliction”  or  “failure” when referring to a duty unfulfilled. 

This sense of a duty being a mandatory obligation or moral requirement reinforces the importance of the General Duty, the Duty to Accommodate and other duties in workers’ compensation and OH&S; the specificity of the term “duty-holder” helps underscore the persistence of that obligation and the potential consequences that may flow from abandoning  or consciously neglecting to act. 

There are other “duties” in workers’ compensation,  OH&S, and our broader community.  Some are specified in legislation but others  are part of the moral framework of our society. Healthcare workers have a “duty of care”, injured workers have a “duty to mitigate loss”,  all of us have a “duty to provide the necessities of life” to children and others.  

A duty imposes a moral obligation on the duty-holder  to act.  Recognizing this relationship may help employers, workers and others in the workplace ensure every duty and duty-holder understands what is required and acts accordingly.


Courtney Galler said...

Very interesting article. I feel like this could help employees understand what they're responsible for, and what's expected of employers. It could possibly help out worker's compensation lawyers. http://www.nccompspecialist.com/Worker-s-Compensation/

Allan Reich said...

An employer must understand his duty towards his employees. Its his duty to protect his employees from any uncertainty. Great work Terry.

Workers Compensation Representative