Older Workers: Are we meeting their OH&S and Workers' Compensation needs?

The number of “older” workers is rising at an unprecedented rate.  Older workers- those age 65 and older- have always been present but their proportion in the workforce has been on the rise at rates that far exceed any change in their proportion of the population. 

For my recent presentations to audiences in the US, Canada and Australia, I customized the country-specific data on older workers.  Aside from scale, the charts from each country were remarkably similar. In each of those countries, data about older workers shows:

• Workers over the age of 65 are increasingly continuing in, returning to, and entering the workforce
• Older workers are increasing in both full and part-time categories
• The trend has picked up pace since the early 2000s

Older workers are an increasing reality in the workforce

The phenomenon has not gone unnoticed.   Recent articles in the popular press have highlighted this change. 

“More than 53 per cent of Canadian men aged 65 or older were working in some form in 2015, including 22.9 per cent who worked full-time throughout the year, compared with 37.8 and 15.5 per cent, respectively, in 1995…”  [Michelle McQuigge, “More older Canadians choose to keep working, census finds,” McLean’s / The Canadian Press . Nov 29, 2017 ]

“Overall, 255,000 Americans 85 years old or older were working over the past 12 months. That's 4.4 percent of Americans that age, up from 2.6 percent in 2006, before the recession. It’s the highest number on record.”  [Andrew Van Dam, “A record number of folks age 85 and older are working,” Wonkblog Analysis , Washington Post, July 5, 2018]

“[T]he number of people over 65 remaining in the workforce has increased from 9.4 per cent in 2006 to 21 per cent in 2016.”  [Gegory Bray, “Older workers are still clocking on beyond retirement age”, The Observer, July 12, 2018]

The US quarterly data demonstrate this dramatic increase.  The 1999-Q4 count was just under 4 million workers age 65 and older.  By 2018-Q2, the number was just shy of 10 million.  And employment is not limited to those in their mid-to-late sixties.  Older workers who are farmers, clergy, or supreme court justices may make headlines but workers in their seventies, eighties and beyond are increasingly represented across a broad spectrum of occupations. 

“A record number of folks age 85 and older are working.
Overall, 255,000 Americans 85 years old or older were working over the past 12 months. That's 4.4 percent of Americans that age, up from 2.6 percent in 2006, before the recession. It’s the highest number on record.”[ Andrew Van Dam, “A record number of folks age 85 and older are working. Here’s what they’re doing,” Washington Post [Wonkblog-online], July 5, 2018]

Similar trends in US, Canada and Australia

Using employment data from the US Current Population Survey (CPS).  Employment of those over age 65 has risen from about 10% of the population in that category in the early 1980s to 19% in 2018-Q2 [extracted from CPS using Unadjusted Employment – Population Ratio- Quarterly data].   

Charting this phenomenon in terms of full and part-time work shows trends that persisted despite the global economic crisis of the early 2000s—and may have accelerated, in part, because of it.  For the Canadian data, I compared the growth in both full and part-time employment to the change in population category. This chart is based on a CANSIM extract of monthly employment data, not seasonally adjusted. 

For a recent Australian presentation, I looked at monthly data but restricted the extract to categories of workers who identified and “full time” and reported 35 hours or more of work in the previous week.  For the part-time, I selected only those who identified as working part time and reported from one to 34 hours of work in the previous week. These restrictions likely understate the count but provide solid evidence of a steep increase in the working populations in both full and part-time categories. 

Implications for older workers … and those who will eventually joint their ranks

What are the implications of increasing numbers of older workers?  There are risks to workers themselves.  While there is strong evidence that work is actually good for your health and well-being, older workers have some greater risks:

Bodies change with age putting different joints and systems at risk of injury and disease

• Co-morbidities tend to increase with age, a factor that may complicate risk
• Working more years increases exposure to toxins and processes associated with work (thereby increasing the possibility of occupational disease)
• Recovery times for many injuries increase with age
• Degenerative conditions and the processes of normal aging may increase the risk of injury for previously “safe” work
• Medications necessary to control common conditions associate with age may alter perception, reaction times, strength, tolerance and stamina changing the factors that influence risk (and recovery). 

Some implications for Employers

Employers have a duty to protect all workers and older workers may face different risks as they age, even if they are in the same occupation and work location.  A female care aide in a long-term care facility always faces slip and fall risks but the risk of fracture as a consequence of that fall climbs sharply with age.  Employers need to know how risks change with age and take steps to reduce risk and prevent injury.

We all know older individuals who are extremely fit in mind and body.  We know that an astronaut can effectively do that job in his late seventies and that there are marathon runners in their 90s.  We all age but we age individually.  Arbitrarily banning all those over 80 from driving would be ageism; functional testing can avoid some arbitrary age limits.  How testing might be applied to power-line electricians, transport vehicle operators, or airline pilots may be successfully implemented but there are still risks.  Commercial airline pilots face age restrictions in some countries but the maximum age limit may be 60 or 65, apply to either or both captain and co-pilot, and may be absent all together in some countries.  Employers and regulators must address these risks for the safety of all their workers and others in the workplace.

We know that “newness” to a job is a risk factor for work-place injury.  Many older workers may be engaging in new jobs or working in new locations that may carry different risks from past experiences.  Employers must avoid the pitfall of assuming age, knowledge and experience obviate the need for orientation and risk-specific awareness. 

And for workers’ comp (and disability) insurers and law makers

Public policy decisions are developed in a context that often includes limited data. Most data sets are historical and that typically means legislation is driven forward while looking in a rear-view mirror. 

Laws or policies that have an inherent assumption of retirement at a specific age or based on historical norms are no longer adequate.  The default assumption that, but for a work injury or disability, retirement would have occurred by age 60 or 65 is no longer be justifiable.  Wage continuance and compensation for injured or disabled workers beyond age 65 ought not to be arbitrarily limited when societal expectations have changed so dramatically.

There are implications for rehabilitation and return-to-work practice as well.  Disability management professionals and return-to-work coordinators will increasingly face accommodation challenges for older workers who anticipate and expect to work rather than be steered to a pre-mature and unwanted departure from the workforce.  With societal acceptance and even need for older workers, the parameters of “early retirement” may well move north of 70.

Changing expectations of when we will retire

In the 1980s and 90s, the expectation of “freedom 55” was common among the working population.  According to recent surveys of the working population:

• In  the US [2017 data], the majority of workers (53 percent) plan to work past age 65, (13 percent plan to never retire). [Transamerica, 18^th Annual Transamerica Retirement Survey: A Compendium of Findings About American Workers, June 2018, TCRS 1364-0618]
•  In Australia [2016/17 data], 50% of workers intended to retire between 65 and 69 years (53% of men and 47% of women) and 20% intended to retire at 70 years and older (22% of men and 18% of women) [Australia Bureau of Statistics,  6238.0 - Retirement and Retirement Intentions, Australia, July 2016 to June 2017, December 20, 2017]
• In Canada [2015 Census Data], Over 53 per cent of men and 38 of women aged 65 or older were working.  [ Statistics Canada, Census in Brief: Working Seniors in Canada,  Release date: November 29, 2017]

           

The reality of an increasing population of older workers requires adjusting our expectations and actions toward employment, prevention/OH&S, and workers’ compensation.  The trend toward greater participation of older workers in the labour force is not going away.     It is time to reassess policies and our own perceptions regarding the length of our working careers. 

What are the Workers' Comp/OHS implications of Temporary Foreign Workers?

The demographics of the Canada, the US and Australia are changing.  Falling birth rates, increasing longevity, and shifts in participation rates have consequences for the composition of the labour force.  One demographic effect is the importance of temporary foreign workers who are increasingly filling demand at all skill levels in the economy—a fact that has implications for occupational health and safety (OH&S) and workers’ compensation on both the policy and practice fronts.

The need for temporary foreign workers (TFWs) is often lost in the political rhetoric about undocumented workers and economic migrants.  Changing demographics of the labour force may create skill or personnel shortages in specific sectors or occupations.  When a country has insufficient personnel willing, trained and able to fulfill position necessary to the economy, foreign nationals may be invited or encouraged to fill vacancies.  In some cases, this may be a prelude to a formal application to immigrate; more often than not, however, the legal work authorization is restricted to a specified employer, designated occupation and for a specified time frame.  Seasonal agricultural workers, for example, may be permitted legal authority to work for a specific farmer through the farming cycle (mid-February to October in Canada); work beyond the specified time, for non-specified employers or in roles unrelated to farm duties (childcare, for example) are not permitted.

International students typically are granted authority to work either in their discipline as part of their training or as a means of supporting their continuing education.  “Working holidays” are also encouraged by many governments, as a labour source, a means of encouraging eventual migration, and as part of reciprocal agreements that provide similar opportunities for a country’s own citizens.

How many documented temporary foreign workers are there?  Comparative data are hard to find. OECD published material (OECD, International Migration Outlook 2014) provides the following temporary migration data:

US

Australia

Canada

The rising use of legally authorized temporary foreign workers is evidence of the need for them to fill skilled positions in the economy. In Australia, (Subclass 457 quarterly report quarter ending at 30 June 2016) more than 85% of visas were issued to professionals, technicians, skilled trade workers, and managers.  Local labour market shortages for lower level positions such as cooks, developer programmers and café or restaurant managers for most of the remaining visa authorizations granted. 

Canada has two main streams to consider: 

·         International Mobility Program International Mobility Program (By exempting some foreign nationals from needing a Labour Market Impact Assessment before being able to work in Canada, the IMP aims to provide competitive advantages to Canada and reciprocal benefits to Canadians)  and

·         Temporary Foreign Worker Program (requires Labour Market Impact Assessment)

Looking at the number of individuals with valid work permits at year end in these two categories demonstrates the rising presence of authorized temporary foreign workers in workplaces across the nation.  [Note:  in most cases, any accompanying family members of authorized temporary foreign workers are also granted permission to work].

It is true that not all temporary foreign workers will have formal work authorizations.  Where demand is high for a particular occupation, workers without appropriate status may be enticed to take on jobs.  The enticement of (relatively) higher wages and (relatively) safer or better working conditions than available in their home country may fuel the supply of would-be temporary migrants or permanent immigrants.

Comparative data on undocumented workers is even more difficult to obtain for most countries.  In the US, there are 8.1 million undocumented workers; about half work in agriculture [Jeffrey s. Passel and D’Vera Cohn,  Size of U.S. Unauthorized Immigrant Workforce Stable After the Great Recession, Pew Research Institute, November 3, 2016].  That represents about 5% of the US labor force.  Even the supply of undocumented foreign workers is changing.  In the case of the US and Mexico, improving economic conditions in Mexico has contributed to a decline in the flow of undocumented workers.  [Note: undocumented workers may be characterized as “illegal immigrants” but this may incorrectly imply intent to settle rather than return to their home country].

The significant size of the temporary foreign workers (documented or otherwise) component of the labour force has implications for policy and practice in OH&S and workers’ compensation.  These workers are technically subject to the same occupational safety standards and usually have legislative eligibility for workers’ compensation laws as nationals in the employed labour force.  These protections and entitlements are not always clear to the temporary foreign worker or employer.  

Language and cultural barriers may isolate a temporary foreign worker from resources or contacts to facilitate their understanding of and access to the appropriate OH&S and workers’ compensation authorities.  Fear or anxiety regarding immigration status may pose a further barrier to accessing the protections and compensation entitlements.

For documented temporary foreign workers in larger organizations, safety and human resource management systems are likely to overcome some of the barriers.  In general, temporary foreign workers who are documented, educated, fluent, working in larger organizations and originating from countries with strong OH&S policies and robust social insurance that covers work injuries are less vulnerable than other temporary foreign workers. 

For inspectorates in the field and other OH&S professionals, the usual challenges may be complicated by similar barriers. Undocumented workers in particular may fear that reporting a hazard or refusing unsafe work may result in a referral to immigration authorities.  Worker reports and responses to questions are important inspection inputs and prevention factors; understanding and overcoming reticence among TFWs and undocumented workers is essential to identifying hazards, controlling risks and correcting errors that can cause injury, death or disease to workers and others in the workplace.

Adjudicative staff in workers’ compensation programs may experience TFW reluctance to disclose causation because of fear regarding return employment/recall rights for injured TFW in seasonal agricultural worker or guest worker programs in the hospitality industry.  Undocumented workers may not wish to pursue entitlements for fear that reporting by the workers’ compensation agency to immigration or other authorities.  Even if the worker makes a successful workers’ compensation claim, questions about ongoing treatment, rehabilitation, and employability in the TFW’s home country will arise.  What wage rate should be used?  What alternative occupations for loss of earnings determinations should be considered for an undocumented worker who must return to his or her home country following an injury? 

Active claim and hazard/injury reporting suppression may also occur.  There may be misperceptions regarding the responsibilities of employers.  For example, many contracts require TFWs who are unable to work to return to their home country; an employer may legally cease to supply room and board to a worker unable to work thus making return home the only economic alternative for the worker. This may limit diagnosis, treatment and rehabilitation options as well as discourage an injured TFW from filing a  workers’ compensation claim.

For policy makers, there are important questions that may cut across jurisdictional lines.  These include:

• ·         How can we ensure TFWs are adequately informed of their protections and entitlements under the law?
• ·         Do TFWs need different approaches to provide equivalent protections and compensation?
• ·         How can cultural, social and language barriers that inhibit access be minimized?
• ·         If the worker must return to his or her home country, what standards of treatment, fee schedules, reporting procedures and monitoring should be applied?
• ·         Can a “mandatory reinstatement” provision be enforced if a worker has no legal rights to remain in or return to the country of injury after recovery?
• ·         Should there be provisions to assist injured TFWs to continue to stay in the country while receiving treatment for work-related injuries. 
• ·         How should TFW exposures to occupational toxins and other agents of occupational disease be tracked?  What provisions should there be for occupational disease claims once the TFW leaves the country?

Beyond the TFWs, students and “working holiday” participants noted here, there are other categories of non-citizen workers in the economy.  Refugees are an obvious group who may seek temporary protection due to persecution, genocide, insurrection, or war.  The compassionate act of providing refuge is meaningless without providing a means of support such as authorization to work.  Even if refugees intend to return to their home countries when conditions allow, the OH&S and workers’ compensation issues overlap with the TFW issues noted here. 

The data suggest documented and undocumented TFWs are likely to be present in the economy in substantial numbers for years to come.  Without coherent, specific policies and sensitive, responsive practices workers’ comp and OH&S jurisdictions, at least some TFWs may be disproportionately at risk or exploited.  Incident and injury under-reporting or suppression may obscure serious risks and deficiencies.  Not only is this unfair to TFWs and their families, it may also put citizen workers and others in the workplace at risk

At a minimum, the presence and extent of TFWs in the economy deserves closer attention and research. I could find no specific published studies on the incidence rate of injury or workers’ compensation claim rate among temporary foreign workers.  (Do TFWs have similar injury rates to citizen workers?)    Improved statistics, tracking and reporting are important but the special needs of this segment of the labour force need to be addressed is such a way as to counter fears and overcome the inherent challenges of a temporary foreign resident who suffers work injury or disease.

What will the Trans-Pacific Partnership (TPP trade agreement) mean for workers’ compensation?

Trade deals often contain provisions regarding labour, social security (including workers' compensation), occupational health and safety (OH&S).  The Trans-Pacific Partnership text  contains several clauses of note. 

Aside from its aspirational purpose statements in the beginning of the document, Article 19.3: Labour Rights notes [item 2]:

Each Party shall adopt and maintain statutes and regulations, and practices thereunder, governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.

You might be forgiven for assuming that this clause implies there will be some external standard-setting body or authority on what “acceptable conditions” might be.  A footnote in the agreement, however, narrows the potential impact of the scope considerably:   

[Footnote 5 page 19-2] For greater certainty, this obligation relates to the establishment by a Party in its statutes, regulations and practices thereunder, of acceptable conditions of work as determined by that Party.

Article 19.10 opens the door to “cooperation” on many issues including:

(c) innovative workplace practices to enhance workers’ well-being and business and economic competitiveness;

(e) work-life balance;

(j) occupational safety and health;

(p) social protection issues, including workers’ compensation in case of occupational injury or illness, pension systems and employment assistance schemes;

There is also an article on “Non Degrogation”.  Article 19.4 reads in part:

The Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in each Party’s labour laws.

The TPP clearly anticipates the criticism that trade agreements can put downward pressure on social security, working conditions, OH&S and workers’ compensation.  There were concerns over  “a race to the bottom” on safety, health and workers’ compensation issues that followed the implementation of the North American Free Trade Agreement (NAFTA), for example. 

Will the TPP result in improved workplace health and safety or workers’ compensation overall?  I’m not sure from my quick review that there is any will to fund the independent research necessary to answer such questions.  That sort of research is complex, time-consuming and expensive.   However, the only way the public in every member nation will know if the TPP is helping or hurting the safety, health, and workers’ compensation protections is through objective, well-designed study that assesses each system against common standards. 

The economic benefits of the TPP may well improve the OH&S and work-injury financial protections for workers;  we won’t know for certain unless its implementation and progress is objectively assessed against credible standards.

Hopefully, member states will fund the research necessary to establish the baseline comparison, monitor changes and assess the impact of the TPP on workplace health, safety and compensation issues. 

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?

What are the OH&S / Workers' Comp implications of "Voluntary" events and activities?

Workers are often asked to “volunteer” for certain activities that have some association to employment.  The association may be strong (volunteering for overtime) or weak (attending a company picnic) but there are implications for safety and health as well as workers’ compensation. 

Most volunteering” cases involve a worker working on a special project, putting in overtime to clear a backlog, or participating in a special events like conferences, open houses, or community event (parade, “home and garden” show, cultural festival) .  The connection to work in these examples is pretty clear.  A worker may volunteer to participate in these activities and events but injuries that may arise out of and in the course of these events are as work-related and typically accepted as compensable in most jurisdictions. 

This coverage is an important protection for workers and employers. Workers continue to have access to the workers’ compensation coverage for themselves and their families; workers’ compensation coverage protects employers from suit for work-related injuries that may arise.  If the voluntary event were not deemed work-related, the employer might still be faced with liabilities in the event of injury. 

Just because a voluntary event or activity such as working to clear a backlog may be covered by workers’ compensation does not mean an employer can forget about health and safety.  Occupational health and safety standards still apply.  Before initiating a voluntary weekend shift to clear a backlog or asking someone to pull an “all-nighter” to prepare a presentation for the next morning, an employer needs to ask questions about health and safety like:

•  Are the protections normally provided available to the worker(s)?
•  Are there special risks or hazards associated with this work that need to be identified? 
• If the worker is working alone, what provisions are required and in place for his or her protection?

Suppose there is a big order due out on Monday and you ask for “volunteers” to work the weekend to fulfill the commitment.  Are the usual weekday resources for the health and safety of the workers available on the weekend?  Is there access to a qualified first aid attendant, open lunch area, alarm and production stops working, etc.? Does the week-end site security system change the risk of intrusion?  Are there scheduled maintenance activities such as floor washing and waxing or system purging that could increase risks to those not normally on site when these activities take place?

And then there are the “voluntary events” like corporate picnics, softball tournaments and project celebration parties.  Are these truly voluntary or are they “work-related”?  Depending on the jurisdiction and the circumstances, injuries arising from participation in such events may well be compensable.  Each case will be determined on its own merits but adjudicators tend to look at the expectations for attendance, where the event takes place, how involved the employer is in sponsoring the event, and the degree to which the activity or event furthers the objectives of the organization. 

Expectations for attendance and participation are tricky.  A worker may feel compelled to participate particularly if the firm organizing or sponsoring the activity promotes it as a “team-building” event or if there is an implied advantage or accepted requirement of participation as part of career development.  Failing to participate may be what we used to call a “career-limiting” decision.   Is a participant really “free” to choose non-attendance in the event?

Employer benefits such as improved worker health and morale, higher corporate profile, and better standing in the community may be enough to bring an event into the scope of “work-related” activities.  One can imagine photographs of the event or activity published on intranet sites and used in recruiting brochures as evidence of corporate social responsibility and accountability—an important corporate goal. 

If you want to enhance trust among team members, you might organize a rock-climbing event.  A day of river rafting may help an executive team bond, refresh and foster creativity.  Having teachers/faculty voluntarily attend graduation ceremonies, homecoming, and alumni events clearly advances the interests of the school, college or university.  The “work-relatedness” of any of these events may be sufficient to bring injuries that may occur into the scope of workers’ compensation coverage.

My point is not to discourage corporations from offering such events and activities.  These activities can clearly further the corporate objectives.  When arranging, sponsoring or organizing any corporate activity and event, be aware of its “work-relatedness”, have your health and safety professional look at the hazards that may be inherent in the activity, venue, or event,  and ensure compliance with occupational safety and health standards. 

How does the workers' compensation scope of coverage influence the OH&S mandate?

Governments implement legislation to fulfill a specific societal desire or “social policy objective”.   One social policy objective is:

to protect workers from work-related injury, disability, illness and death in a compassionate and sustainable way that still allows the economic activity and innovation necessary for societies to operate and thrive.

The statutes created by legislators to achieve that objective vary.  There is, however,  a set of “levers” that can be used to achieve the objective .  Governments create “statutory agencies” to control the levers.  Where the percentage of “employed labour-force”  covered by workers’ compensation approaches 100%, it makes sense to place all the levers of control in the hands of a single statutory body that can set, adjust, and fine-tune the levers to achieve the social policy objective.  This is exactly what we find in practice in Canada. 

The following table is based on data from the Association of Workers’ Compensation Boards of Canada (AWCBC.org):

For the statutory agencies near the top of the list, the workers ’ compensation board of commission generally controls all the levers (workers’ compensation and OH&S).  In jurisdictions towards the bottom of the list, workers’ compensation levers can have no impact on those outside the scope of coverage.  The ability of one  statutory agency  to fine tune or set the full range of levers  for the part of the labour force not covered is lost. 

In order to achieve consistency across the economy, jurisdictions with low percentages of employed labour force covered must struggle to achieve the social policy objective with only half the tool set  for those outside the scope of coverage.  The need for consistency across all workplaces, however, requires the enforcement, regulation, education/training and prevention levers  that influence the health and safety outcomes in the workplace be applied (largely) independently from what happens in workplaces within the scope of workers’ compensation coverage.  The tool set that can be used by the statutory agency responsible for OH&S  is restricted.  To achieve the social policy objective, the incentives tend to be more “stick” oriented (including increased use of prosecution and fines).

The statutory agencies responsible for workers’ compensation in these low-coverage jurisdictions have a limited tool set as well.  Often, this spawns more aggressive use of  the levers within its exclusive control like experience rating, classifications, surcharges, discounts and other  incentives (including retrospective rating systems and rebates).  This dichotomy—even in the presence of extensive consultation—can result in perverse outcomes including claim suppression. 

There may be other social policy reasons to decide to exclude significant portions of the employed labour force from workers’ compensation coverage.  It is up to each jurisdiction to determine if some other objective is of greater importance to justify that exclusion.  There is nothing inherently wrong with doing so.  It is up to the constituency of each jurisdiction to determine its own priorities.  My point is simply that decisions on the scope of coverage for workers’ compensation systems have consequences for workers and employers both inside and outside the scope of coverage.  It also has consequences for the range and precision of the levers that can be applied and coordinated to achieve safe and healthy workplaces in a thriving economy.  

What is the "social policy objective" of workers' compensation?

There is no shortage of work for those of us connected with workers’ compensation and occupational health & safety (OH&S).  People continue to get hurt, develop disease and even die as a result of work-related activity.  Investigating injuries, adjudicating claims, caring for victims and families while reducing and eliminating the causes to prevent future occurrences are the obvious “reasons” behind what we do.   Exactly how we organize and what we do vary greatly with the jurisdictions in which we work.  Virtually every developed and developing nation has systems and organizations that deliver workers’ compensation and OH&S services.  So, what is the underlying “social policy objective” each society is trying to address?

The ubiquity of workers’ compensation and OH&S public policies reflect an underlying and universal social policy objective:  to protect workers from work-related injury, disability, illness and death in a compassionate and sustainable way that still allows the economic activity and innovation necessary for societies to operate and thrive.  This social policy objective recognizes that all human activity takes place in the presence of hazards to the health and safety of individual workers.  It also recognizes societal expectations that a vibrant economy is desirable. 

In deciding how to achieve this social policy objective, legislators have a series of direct and indirect levers they can adjust that will impact workers, employers, work activities and work processes.  These control mechanisms cluster under the general headings of workers’ compensation and OH&S. 

On the workers’ compensation side, legislators can determine the scope of coverage—both who and what will be covered.  Making workers’ compensation coverage mandatory imposes a cost on firms and an oversight obligation on behalf of authorities.  Premiums can be modulated to achieve effects.  Bringing hearing loss into the scope of workers’ compensation, for example, increases compensation costs and therefore premiums.  The increased premiums can provide an incentive for reducing noise induced hearing loss in the workplace.  The same argument may be made for mental injuries and illnesses due to stress and bullying.  Bringing these outcomes into the scope of workers’ compensation can certainly provide an incentive for prevention.   Experience rating (also called experience modification) is another lever that can be fine-tuned to apply economic pressure to firms with greater frequency or claims costs.  To mitigate costs, greater investment in prevention and rehabilitation/return-to-work and work accommodations are the typical workplace responses.  Other incentives including retrospective rating, rebates and discounts for specific prevention or RTW initiatives round out the control panel on the workers’ compensation side.

On the OH&S side, there are four main levers:  regulation, enforcement, education/consultation, “prevention” promotion.  The regulation lever can be set widely or narrowly and adjusted towards being more prescriptive or performance based.   All regulation has a cost in terms of the freedom of an enterprise to extract economic gains from a process.  Whereas workers’ compensation policies will impose costs associated with injuries to the firm, regulation on the OH&S side may increase production costs but prevent injuries or exposures that would lead to workers’ compensation claims. 

The enforcement lever can be set with respect to intensity and severity.  Who gets inspected , how often and with what consequences (financial penalty, stop work order, etc.) are the main policy desisions.  The effectiveness of this control for well-performing firms is really not an issue.  For poor performers who ought to know better, the enforcement lever will only be effective if set to level where the expected cost of detection (financial and reputational) of regulatory violation  exceeds the expected value of gains possible by violating the regulation.   

The education/consultation control  has little impact on high-performance organizations (they already know and do what needs to be done).  For workplaces who do not know or who have a new or difficult safety or health issues, increasing resources and efforts in this area can be effective. 

Finally, the prevention promotion lever can be set broadly or narrowly but lacks precision.  It is great for increasing awareness and shifting attitudes at a societal or sectoral population (health care workers, welders for example) level but requires sustained exposure to target audiences to achieve intended results. 

Those are the levers that legislators have to achieve the social policy objective.  Legislators typically delegate the authority to set and adjust the controls to commissions, statutory agencies or other bodies.  Often, feedback mechanisms or oversight agencies or reports are also mandated to determine the performance of the system in achieving the social policy objective. 

My own view is that these levers must be operated in concert.  The setting of each control has an impact on the overall movement toward the desired objective.  Where the scope of what is covered is wide and the percentage of employed labour force covered is high, it makes sense to create statutory structures with the high degree of control over all the levers that can impact the social policy objective.    

How do I know if our Joint Occupational Health and Safety Committee is effective?

The research literature reflects a consensus that effective joint occupational health and safety committees (JOHSCs) make a difference in the workplace.  Just because you have a JOHSC that meets the regulatory requirements, is properly constituted and meets regularly does not guarantee its effectiveness.  How would you assess the effectiveness of your committee? 

A good place to start is with the questions on the Canadian Centre for Occupational Health and Safety (CCOHS) website at http://www.ccohs.ca/oshanswers/hsprograms/hscommittees/effective.html: 

1.       Are members' duties clearly defined?
2.       Is a list of duties available to each member?
3.       Do members understand what their duties are?
4.       Do members carry out their duties?
5.       Is the structure and duties reviewed periodically and revised when necessary?
6.       Do members know the extent of their authority?
7.       Do members exceed their authority [or fail to address health and safety issues within their authority]?
8.       Are the chairperson's duties and authority clearly specified?
9.       Are the secretary's duties clearly specified? 

This is a great starting point in assessing the effectiveness of your JOHSC.  If all members of the JHSC have positive responses to all questions except 7, you have the makings of an effective committee.   I’ve added the clause shown in square brackets to question 7 for a reason.  If there is any doubt in the responses, mixed responses, or if you find question 7 responses depict a committee or its members exceeding their authority or failing to exercise their authority, your committee may not  working as effectively as it could.  In this case, failure to address substantive issues within a committee’s authority may be more serious than overzealousness.  If a committee’s members find they are continually bumping into issues that are beyond their understood authority, there may be something wrong with their understanding or the responsibilities and authority defined for the committee.  In either case, the health and safety of workers and other persons in the workplace may be at stake.  At a minimum, a “yes” answer to question 7 should spark some serious discussion.  

The CCOHS questions (with my proposed amendment to question 7) are internally focused.  A important measure of effectiveness is the degree to which the JOHSC is perceived by management and staff to be an important and potent facet of health and safety in the workplace.   So, I recommend adding the following question to the list:

10.    Do management and staff perceive the JOHSC to be effective?

There are many ways of informing a response to this question.  The methods include:

·         Directly asking managers and staff members the question in a staff survey
·         Counting of issues and questions referred to the committee as a performance measure
·         Tracking the number of page visits to the JOHSC minutes posted to the organization’s intranet site

Each of these or several in combination will provide an indicator of the importance and confidence workplace participants place on their JOHSC. 

If you are just starting a committee or looking for ways to improve its effectiveness,  WorkSafeBC offers a Joint Occupational Health and Safety Committee Foundation Workbook.  The workbook is full of resources and space for committee members to develop and improve the operations of their committee.  

Is it time to introduce cone-zone cameras?

It happened again.  Another flag person was hit and badly hurt in another roadway incident.   Another community shocked by the tragedy; another call from police looking for witnesses. Add another tragic case to approximately 400 or so that occurred in this province alone in the last decade.  This particular incident occurred in Northern BC on July 21^st, but a quick scan of any news feed will show you just how common this sort of incident really is in North America. 

In the US, the Bureau of Labor Statistics reports in their Fatal occupational injuries by selected characteristics, 2003-2011 publication 373 entirely preventable worker deaths while directing or flagging traffic.  Despite our best efforts at education, on-site warnings, large signs proclaiming “My Mommy works here”,  even labeling cones with the words “Mom” and “Dad”,  it just keeps happening. 

A few days ago I was out for a walk.  At one intersection, a crew of electricians was working on the overhead traffic signals.  A flagger was controlling some of the traffic lanes and also directing pedestrians to cross when safe to do so.  She was about five and a half feet tall but with the hi-viz fluorescent green/yellow coveralls and jacket, hard hat and safety boots she had a six foot presence.

I watched as she used her body language, voice, stop/slow sign, and eye contact to effectively manage the flow of most drivers and pedestrians.  However, in the space of two minutes, she was nearly hit twice.  Both drivers were down the road in an instant; and one actually slowed down, turned and sheepishly mouthed “Sorry”… the other just accelerated through the intersection in a literal cloud of dust. Through all of this, the flagger stayed calm and focused on her immediate task: the safety of crew, drivers and pedestrians like me.

In an extended break in the action as the equipment and crews were out of the intersection, I asked her about her job and, in particular, what she thought was behind the two close calls I witnessed.  She said, “It happens all the time” and added, “If you could see the [stuff] I see…”. 

She described people on their cell phones or texting, others with dogs on their laps, and even a cab driver—supposedly a professional driver—eating noodle soup from a bowl.   “If you could see the [stuff] I see…”

Her comment got me thinking.  Red light cameras are widely accepted.  I note some jurisdictions are putting photo radar in construction zones (Saskatchewan).  Others are banning cell phone use in construction zones (in Illinois, any phone use at all, hands-free or hand-held, is illegal statewide in school and construction zones) but I don’t know of any jurisdiction that installs “cone zone cameras” –not to detect speeding in construction zones but to actually record what the flagger actually sees.  Why don’t we have “cone zone cameras” ? 

Police cruisers are fitted with dashboard cameras, cabs have cameras that record passengers, some police forces and security personnel have wearable video recorders.  Why not flaggers?  Video evidence is curtailing property crime and has been invaluable to investigators when serious incidents occurs on transit systems, in airports and at public events. 

Most of us respect flag personnel.  Most of us understand the inherent risk their jobs entail.  Most of us will not speed by them, cut corners, or disobey their directions.  For the few that do, my guess is that the behavior is not isolated to a particular cone zone and one particular time.  Identification and intervention may make a difference but most of our ad campaigns and public education are preaching to the converted.  Perhaps a database of outrageous violations will help us identify those that really need to hear the message.   

Flagging should not mean putting your life on the line or under the wheel of a distracted driver’s car or a bloody image in the rear view mirror of someone who really couldn't care less.  Cone zone cameras focused on the “stuff” flaggers actually see might be an added deterrent and could help make a difference.