Worksite ‘Danger’ Redefined in Canada

By Roy Maurer Feb 16, 2015
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A clearer definition of “danger” for the purposes of stopping unsafe work and changes to the work-refusal process at federally regulated workplaces in Canada went into effect in late 2014.

Section 128 of the Canada Labour Code grants workers the right to refuse work if conditions, performance of activity, or the use or operation of machines constitutes a danger to the employee or to another employee. However, a pressing concern has been that the majority of work refusals (80 percent) were found to be unjustified, according to the Canadian Department of Finance.

One problem, according to the federal Labour Program, which protects the workplace rights and well-being of workers and employers, was the definition of danger, which included “potential hazards or conditions, or any current or future activity that could reasonably be expected to cause injury or illness.”

The new definition of danger is more restrictive: “Any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”

The result is that work refusals will only be justified where an employee is faced with animminent or serious threat to life or health. “Danger in the workplace will no longer be a question of perception,” said Labour Program official Nathalie Lemay.

Investigation Process Changes

The labor code was further amended to provide the Labour Program with more discretion and flexibility to conduct work refusal investigations, including the right to decline to investigate refusals to work that are deemed frivolous or made in bad faith.

Workers who feel they are in danger are instructed to start the work refusal process with their manager. The employer then should conduct an assessment and inform the company’s health and safety committee, which should launch an investigation.

At the end of the investigation, the employee is notified if a danger was found and will be corrected or that there is no danger. If the employee is told to return to work but still feels he or she is in danger, the employee can request a continued work refusal. At that point, the Labour Program is contacted and conducts its own investigation, the results of which were previously turned over to a health and safety officer for a determination. That decision could then be appealed by the worker or the employer.

The labor code changes remove the health and safety officer determination step, giving the Labour Program more flexibility to decide whether or not to investigate continued refusals.

“If we find that (the refusal) was trivial or in bad faith, we might decide not to investigate,” said Lemay. “In the past we had to investigate everything, now we might not investigate at all.”

Lemay said the changes were made to both speed up the investigation process for employers as well as to promote internal resolutions between employers and employees.

In addition, employers are now required to prepare a written report outlining the findings of their investigation, which the Labour Program can review without having to visit the site before making a decision whether or not to investigate.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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