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.

How does health, safety and workers’ comp measure up in China?

The digital display registered 431 km/hour. The Shanghai landscape flashed by the window of the worlds’ only Magnetic Levitation (Mag Lev) commuter train. Safe, fast, economical—the MagLev is emblematic of the “new” China and of the inherent consideration for occupational health and safety that is essential to its design, construction and operation.

For any observer sensitive to safety, China offers ample opportunity to examine safety systems as they apply to old technology, massive urban renewal projects, and advanced technological installation such as the MagLev . There are obvious similarities and striking differences in safety protocols and standards from what we see in the West. Whether observing a construction projects in the growing hospitality sector in the rice-terraced hills of Longji (Guilin) or in the inner precincts of the walled city of Xi’an, practices that protect workers from harm are inherent in the processes and procedures.

Watching a welder on a new high rise in Shanghai, I could see virtually no differences in the protections evident from those I have seen in any western metropolis. The worker, his equipment and the safety environment around him were equivalent to what I have seen in Vancouver, Melbourne and New York. I noted many co-workers wearing hardhats (all with engaged chin straps) working behind guardrails floor after floor, in much the same way observed in Western centres.

In the mountainous rice terraces of Longji, a lone construction worker in soft shoes and no hard hat was slowly, methodically, building a brick wall between concrete pillars of a third floor of a cliff-topping guest house. Clearly, not what might be seen adhering to western safety standards; yet, when I speak with the locals (many have some English in part because of the tourism in the area), they report few injuries. Without personal protective gear like hardhats and steel toed boots, workers carry out complex tasks without excessive injuries. How can this be? When I asked one local engineer why injuries were not more common, he attributed the relative safety he observed to “the Chinese way of doing things”.

There is a tendency to confer the qualifier of “safe” on the visible protections observed in a workplace. Hard hats, fall arrest systems, safety googles are obvious examples. Such apparatus, however, are but one layer of protection. The barriers or safeguards that protect workers from the inherent active and latent hazards in the workplace are not always as visible as personal protective equipment (PPE). For example, much of what I observed in China was extremely patterned work. Many buildings were not unique. The design and methods used to create them were very standardized. Many of the workers were evidently very experienced. In essence, one observed experienced workers, building nearly identical structures with the time-proven methods. These “systems” of doing things embody worker protections in the designs, work procedures and shared culture.

Workplaces around the world rely on these less visible, less “prescribed” worker protections. Barriers, safeguards and defenses that protect workers extend well beyond the visible personal (and most immediate level) of PPE; one can see safety in the design, work processes, supervision and training (and experience). Are these enough? Probably not…in China or anywhere else; in China as in the West, all work generates hazards to workers. The challenge is the same in every workplace: managing the risks and reducing the frequency and magnitude of the defects in the barriers, safeguards and defenses that protect workers from occupational injury and disease.

Work-related injuries occur in China as they do in the West, so security in form of compensation and rehabilitation are also needed. According to the ILO, China has effective employment-injury coverage for about 22.5% of the labour force (World Social Protection Report 2014/15 ). This is low by European , Australian and North American standards but this is double what it was about a decade ago. And the mandated coverage provides innovative incentives toward safety and prevention. For certain degrees of disability, the accident employer must provide suitable employment –something like the mandatory reinstatement provisions present in some workers’ compensation legislation. The Chinese solution, however, goes further. It anticipates that reinstatement may not be possible so mandates the employer pay a pension equal to 60 per cent or more of the monthly net income of the injured worker.

Challenges still exist, of course. Demographic, political, economic and environmental challenges will continue to test China’s people and leadership. The care and protection of the most vulnerable in the labour force and society must continue to be a priority in China as they are with other nations.
That said, China is changing. Its economy continues to lead the global recovery. Its technological advances are often leapfrogging the incremental paths other nations have taken. Hopefully, the safety and health of workers as well as their care and support after injury will continue to be part of China’s agenda.

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.    

What, if anything, does a “near miss” have to do with health and safety?

“Well, no one died, so what’s the problem?”  I have heard lines like this before and I heard it again yesterday.  What irks me is that the people saying (or reported to have said) these words are often in supervisory or managerial positions.  Some even have a title or function that includes “safety and health”.  The truth is, the absence of injury is not a true measure of workplace health and safety.   And how a “near miss” is reported and reviewed reveals much about the safety culture of a workplace.

I instruct classes and seminars with learners and talk about safety with a lot of workers.  When I ask about their health and safety experiences, they often relate incidents like the following—serious incidents but without injury: 

•  The ladder I was on began to slide sideways and I had to jump off.     
•  The patient suddenly lost balance and collapsed on top of me.
•   The student I was helping impulsively started the drill press while my eye was next the bit aligning the project.    
• As I pulled out the top drawer, the file cabinet began to fall forward… I was just able to step out of the way before it went crashing to the floor.        
• Someone had sprayed a lubricant in the hallway and I nearly slipped and fell when I stepped in it.
• The metal plate broke loose from the winch and missed my toes by a fraction of an inch.

The workplaces above are varied:  a paint job on a residential site, a clinic, an industrial education shop in a school, an office, a hallway in a public building, a fabrication shop.  From an outcome perspective, there were no injuries, no lost days due to accidents, no need for doctor’s visits or alternate duties.  Yet, most of us would recognize that what separated the worker from injury in each case was a matter of luck (or millimetres) and not safety. 

Regardless of the workplace, each of the above incidents is a wake-up call, an opportunity to review the “near miss” to see if there are improvements or changes that might prevent a repeat of the incident.  Each case is worthy of an incident report and an investigation by the site safety committee. 

Safety is a function of the safeguards, barriers and defenses that protect workers from harm due to the hazards inherent in all workplaces.  Every near miss reveals active or latent defects in the barriers, safeguards and defenses that protect workers from harm.  Design, supervision, training, safe work procedures are some of the safeguards, barriers and defenses I’m talking about; an effective investigation will reveal the possible defects that had to align in order for the near miss to occur. 

If you are looking for a leading indicator of your workplace health and safety program, focus on incident or “near miss” reports.  How many are we getting?  Are they being investigated and discussed at the Joint Health and Safety Committee?  Are means of preventing future incidents being considered?  If incidents are not being reported, don’t assume they aren’t occurring.  And if incident reports are met with a “no one died” or “that’s just part of the job” sort of response, you’ll know a true concern for health and safety is not part of the culture of your workplace.  

What percentage of the working-age population receives Disability Benefits in Canada and the US?

My post on the US Social Security Disability (SSD) issue generated a lot of email.  .  Most of the feedback I got expressed disbelief that 4.7% of the population aged 18 to 64 in the US are in receipt of SSD.  A few offered theories as to why certain states would have high or low percentages of working-age residents on SSD.  Others asked if the US average of 4.7% of the working age population is low or high compared to other countries, particularly Canada, which has a similar economy and social security system.  I thought that might be interesting to examine.

The closest comparable plan to US SSD is the Canada Pension Plan- Disability benefit (CPP-D).  There is a specific but very similar plan in Quebec so data from both CPPD and the Quebec Pension Plann (QPP) have to be considered in any comparison.

Primary recipients of SSD and CPP-D are workers unable to work because of a disability from injury or disease.  SSD and CPP-D  have differences that influence who qualifies for the benefit.    CPP-D benefits are payable to workers who meet the contribution requirement (contributions to CPP in four of the last six years, or three of the last six years if there are at least 25 years of contributions), are under 65 and have a condition that meets the test of being “severe and prolonged”.  SSD in the US is designed to pay disability benefits to workers who have worked long enough to qualify and have a medical condition that  “ has prevented you from working or is expected to prevent you from working for at least 12 months or end in death." 

The qualifying years are more generous under the US SSD. The following table appears in a publication by the Social Security Administration:

The averages and maximums payable under the plans also differ significantly.  SSD  pays an average of $1,148  with a maximum of $2,642 per month in 2014.  CPP-D  provides an average of $896.87 with a maximum of   $1,236.35 per month in 2014.  [Values in US$ and Canadian$ respectively]. 

So, what percentage of the population receives SSD or CPP-D?  In Canada in 2013, there were 22,851,645 people aged 18 to 6 and an average of 234,423 CPP-D recipients... but remember Quebec, which has a similar program, had 74,893 recipients in late 2012 for a total of 309,316 disabled workers in receipt of CPP-D or the Quebec equivalent.  For Canada,  1.35% of the working age population (18 to 64) is in receipt of either  CPP-D or disability under the QPP —a significant percentage but substantially lower than the 4.7% noted for the US SS-D.

Are the top causes of disability similar? Each system classified disorders in different ways so direct comparisons are difficult.   In the US, “Mood Disorders” account for 15.1% of the SSD cases and “Musculoskeletal and Connective Tissue” account for 29.8% of SSD cases.  In Canada, “Mental Disorders” total 30% of cases while “Diseases of the Musculoskeletal System” accounted for another 23%.

Both SSD and CPP-D have some interplay with other social insurance programs including workers’ compensation.  The rules vary by state and province but there is often some reduction in benefits paid to a worker under a workers’ compensation plan when there is a benefit payable from SSD or CPP-D. 

The human and financial cost of work injury and non-work injury that removes workers from the labour force is unacceptable.  Prevention remains the best approach to reducing these costs but building resiliency, fostering greater accommodation and return to safe, durable employment are the best way forward.