Wednesday, October 28, 2015

What will elimination of the waiting period mean?

Workers’ compensation “reform” often means changes that effectively reduce costs and/or benefits.  That is not the case with the recently announced changes to one workers’ compensation system.  If the legislature approves the proposed amendment, the Workers’ Compensation Board of PrinceEdward Island will eliminate the waiting period effective January 1, 2016.  That will leave New Brunswick and Nova Scotia as the only two Canadian provinces with waiting periods.  (All US jurisdictions continue to have waiting periods of 3 to 7 days.)

A three-day waiting period was introduced in PEI as a cost-cutting measure in 2002.  In 2014 this “worker-deductible” was reduced to 2 days.  Stuart Affleck, Chair of the WCB, notes in a news release:

Eliminating the wait period will provide wage loss benefits to all workers from the day following an accident.  This measure will have a direct impact on our most vulnerable injured workers who might not have access to sick leave benefits during this timeframe.

The emphasis on the “most vulnerable” injured workers is important.  Day labourers, minimum wage earners,  new entrants to the workforces, or migrant workers must often rely on personal savings (or credit), welfare or the charity of neighbours to cover uncompensated wage loss due to work-related injury.  For these workers, the elimination of the waiting period for work-related injuries can provide 85% of net earnings (maximum annual earnings for 2015 are $52,100) tax free, substantially reducing the financial burden they must otherwise bear. 

Mr. Affleck’s focus on those “who might not have access to sick leave benefits during this timeframe” should not be read narrowly.  I am certain he doesn’t mean to imply that sick leave is a suitable alternative to workers’ compensation—it’s not. Even where sick leave is available, it is not intended to cover absences for work-related injury. 

Sick leave pay is typically available in medium to large firms and government entities.  In unionized organizations, sick leave is a negotiated benefit; in other words, the amount and structure of sick leave provisions (as well as short and long term benefit plans) are wage or salary cost items arrived at in the collective bargaining process; changes to wages, hours of work and even working conditions may well have been bargained to achieve sick leave provisions in collective agreements.  In non-unionized environments, sick leave provisions generally reflect industry standards—to be competitive in order to attract and retain talent. Whether or not the specific sick leave plan was the product of negotiations or market conditions, the value of sick leave is part of the financial compensation for the job.  Unlike workers’ compensation, sick leave pay is taxable and its benefits typically not intended to cover work-related injury, illness or disease.   

A key fact facilitating PEI’s policy shift has been the decreased frequency of work injuries.  The rate of workplace injuries and illnesses has fallen dramatically over the last three decades.  Recent “reforms” in Canada and the US have generally reduced employer costs; yet, rarely have reforms increased the worker access to or compensation for work-related injuries.  Waiting periods, long (or no) retroactive periods, low insured earnings (or weekly benefit) maximums, low benefit rates, and limits on benefit adjustments for cost of living  continue to shift a significant portion of the cost of work-related injury and disease to workers, their families and other systems. 

Work-related injuries that have durations shorter than the waiting period are essentially costless to workers’ compensation insurers.  Aside from some medical costs that may be payable, there is little financial incentive from workers’ compensation premiums to eliminate these short duration claims.  Uncompensated days of waiting period in longer duration claims also shift costs to workers and reduce the potential incentive workers’ compensation costs can have on improving workplace health and safety. 

For workers in PEI (particularly the most vulnerable), the elimination of the waiting period will mean improved access to compensation and less externalization of the cost of work injury to workers, families and communities.  It is also likely to increase the number of reported work-place injuries—not because of a decline in safety but because of increased workplace injury reporting. If improved reporting and cost incentives increase the focus on workplace health and safety, then this policy change is not only good for PEI workers, it is good for everyone. 

Friday, October 16, 2015

Are CCTV images available for workplace health and safety purposes?

If you travel on public transit, visit a public school, or simply walk in the hallway of your office building, there is a good chance your movements and actions are being caught on closed circuit television (CCTV). A 2007 ePolicy Institute survey found almost half (48%) of the companies surveyed use video monitoring to detect and discourage theft, violence and sabotage; some use CCTV to monitor work performance.  
Video monitoring and surveillance systems in the workplace are usually justified for public safety and the security of property.  What may be overlooked is their value to joint health and safety committees in investigating workplace hazards, injuries, and near misses.
Every institution or organization that has CCTV should have a policy regarding its live and recorded images.  Most jurisdictions have laws or guidelines for businesses and public bodies regarding CCTV (Guidelines for Overt Video Surveillance in the Private Sector March 2008  and Public Sector Surveillance Guidelines January 2014 are good examples of a concise, easy to follow guideline that addresses most privacy concerns)  These rules typically address purpose, signage and access but are often written from a privacy and security of property perspective; rarely do CCTV policies include worker health and safety among the reasons for surveillance.
Any business or institution with a CCTV installation should have policies that outline the purpose of surveillance and the rights of workers (and others) whose images are captured, recorded and retained.  A comprehensive policy will specifically address access  rights of workplace health and safety committees and safety officers to live or recorded images in carrying out their required duties.  Procedures will include specifics on how video records of workplace incidents, accidents and related events are requested and secured.  These video records are evidence that may have an important bearing on investigations into causation or proving adherence (or violation) of OH&S laws and regulations. 
Every place with a video camera is someone’s workplace.  A park is a groundskeeper’s workplace.  A transit platform is a transit attendant’s workplace.  A public hallway in a school is the workplace of custodians, teachers, teaching assistants, and others in the course of their employment (copier service technician, courier, fire inspector).  As you walk through your workplace and the workplaces of others that you encounter in your day, think about how the CCTV cameras you see could be used for worker health and safety purposes.  Here are a few examples to get you started:
A joint health and safety committee or safety officer could use CCTV to:
  • Investigate the source of reported hazards (oil in a hall that is a risk of slips and falls)
  • Confirm witness descriptions (a reported incident of an act of force by a dementia patient)
  • Observe a specific risk (congestion in a passageway during a fire drill)
  • Establish the sequence of events that led up to an injury
I’m neither advocating for more CCTV nor proposing new controls on CCTV use.  What I am suggesting is that every organization that uses CCTV (or any of the proliferating video capture technologies) explicitly address worker health and safety in their video surveillance policy and procedures.  Joint health and safety committees and corporate safety officers should review their access to video records for the health and safety purposes.  If no policy regarding the use of CCTV for worker health and safety currently exists, the issue should be addressed in the next policy review.  Once a policy does exist, workers and managers need to be made aware of the policy as it may pertain to them in the course of their employment.  This is critical to preserving the video record for potential use in the health and safety investigation.   
With the plunging cost of video capture and recording technologies and their growing use in workplaces, workplace injuries, exposures and risks will increasingly be captured in video records.  CCTV and other recorded images may be impersonal but their objective witness to events may reveal the cause of otherwise contentious injuries and exposures as well as expand opportunities to improve workplace health and safety. As the capture and retention of video images of people at work and in the course of their employment proliferates, policies that support their proper use for health and safety purposes need to be developed, formalized and maintained.    
Some Questions for Joint Health and Safety Committees (for a specific incident, near miss or health/safety issue):
  • Would a video record of the incident assist in the investigation?
  • Was the area of a reported hazard, incident, near miss or injury being examined by the committee under video surveillance? (This is an important question even if the incident is not on the employer’s worksite.)
  • Does the current policy regarding video surveillance include worker health and safety within its purpose?
  • Does the policy define the retention and terms of access for the committee?
  • What are the procedures for the committee to request and view CCTV and other captured images for the purposes of carrying out their duties?