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Effective Safety and Health Programs

The key to a safe workplace and
a defence of due diligence

 


 

 

Description: This guide contains important information for employers, supervisors, and workers who must ensure that their occupational safety and health programs meet WCB standards. Using a question-and-answer format, this guide defines due diligence, describes how the WCB applies due diligence, explains how the WCB assesses compliance with regulations, identifies the elements of an OSH program, and explains how OSH programs help establish due diligence.

The following information can also be obtained as a printed pamphlet (reference number PH33) by contacting the Films and Posters Section of the WCB.  

 

 


 

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Effective Safety and Health Programs

The key to a safe workplace and a defence of due diligence

By regulation, it's the employer's responsibility to implement an occupational safety and health (OSH) program to prevent workplace injury and disease.

OSH programs must meet certain standards. These standards can be met if the employer adheres to the due diligence standard of care. OSH programs that meet this standard establish a defence when Workers' Compensation Board (WCB) regulations have been allegedly violated.

Using a question-and-answer format, this pamphlet:

  • Defines due diligence
  • Describes how the WCB applies due diligence
  • Explains how the WCB assesses compliance with regulations
  • Identifies the elements of an OSH program
  • Explains how OSH programs help establish due diligence

This pamphlet is mainly for employers and supervisors who must ensure that their OSH programs meet a standard acceptable to the WCB.

If you are a worker, you will find the pamphlet useful because you must also act with reasonable care or due diligence when performing your job. It will also help you identify your employer's health and safety responsibilities.

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What is the standard of due diligence?

Due diligence simply means taking all reasonable care to protect the well-being of employees or co-workers. To meet the standard of due diligence, you must take all reasonable precautions in the circumstances to carry out your work and your safety and health responsibilities. This is the standard of care required to comply with the safety and health regulations and orders made under the B.C. Workers Compensation Act and enforced by the WCB of B.C.

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What is the defence of due diligence?

In prosecutions for violations of safety and health laws, the prosecutor must prove that the accused committed a prohibited act. To be acquitted, the accused must then establish that on a balance of probabilities all reasonable precautions were taken in the circumstances to comply. This is the defence of due diligence.

The standard the courts apply to determine whether an employer has acted with due diligence isn't absolute -- as an employer, you aren't expected to anticipate and prevent every possible accident. You must take all the precautions that a reasonable and prudent person would take in the circumstances.

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Is the WCB legally required to recognize the defence of due diligence?

The courts will recognize a formal defence of due diligence in prosecutions. In practice, the WCB will also recognize a defence of due diligence and may relieve employers of monetary penalties for violations of the regulations -- if employers can establish that they were duly diligent.

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How does the WCB encourage compliance with its regulations?

The WCB encourages compliance with safety and health regulations through consultation and education, and by issuing orders for correcting violations of the regulations.

The WCB has the legal authority to levy monetary penalties, known as sanctions and penalty assessments, on employers for failing to comply with regulations or orders. The WCB can also stop hazardous work and levy sanctions on employers who use work practices that pose a high risk of death, serious injury, or disease.

Examples of high risk work practices include:

  • Working on equipment that isn't locked-out
  • Working in an excavation over four feet deep without adequately supporting or sloping the sides of the excavation
  • Failing to fall snags (dead trees) and using domino falling procedures in logging
  • Permitting workers to be exposed to situations or conditions that are immediately dangerous to life or health

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Can orders be issued to employers and workers?

Consider the example of a WCB officer who, while inspecting a work site, finds a piece of machinery missing a guard. The officer determines who is responsible for the violation. Was it due to a failure to inspect the work site regularly? A lack of training or supervision? The isolated act of one worker?

If the officer finds that the violation occurred because the instruction, training, or supervision provided to the worker was inadequate, the employer will be issued an order. If the officer finds that a worker -- despite adequate training and supervision -- deliberately violated a regulation, or violated it due to carelessness or neglect, WCB policy requires the officer to issue a report on the worker. In effect, this policy requires the officer to consider if it was the employer or the worker who failed to meet the due diligence standard.

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How does the WCB apply due diligence to sanctions?

When a WCB officer recommends a sanction, the employer is notified and is given the opportunity to make submissions to a sanction review officer, or officers, in writing or at a meeting.

Sanction review officers consider many factors that indicate whether an employer took reasonable precautions in the circumstances and therefore exercised due diligence. These include:

  • Whether a violation occurred
  • The degree of hazard associated with the violation
  • The employer's past history of compliance
  • Whether the employer deliberately violated regulations
  • Whether the employer has a complacent attitude toward compliance
  • The adequacy of the employer's OSH program, and evidence that the employer is actively pursuing a program of compliance with the regulations
  • The training and instruction workers receive on how to perform their jobs safely
  • The training provided to supervisors and managers about their safety and health duties
  • The disciplinary policy and practices for workers, supervisors, and managers who don't follow safe work procedures

See the pamphlet, Guide to the Sanction Review Process, for more information. You can obtain this publication by contacting the Variance and Sanction Review section of the WCB at (604) 276-3215.

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In what circumstances does the WCB consider prosecutions?

The WCB considers prosecutions of employers, supervisors, and workers when:

  • Violations could or did result in the death or serious injury of a worker.
  • WCB officers are deliberately obstructed in performing their duties.
  • Employers knowingly (or recklessly) expose workers to significant hazards without taking reasonable measures to ensure their well-being.
  • Workers continue to be exposed to a hazard despite repeat orders from a WCB officer, warning letters, or penalties.

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Why is the OSH program critical to establishing due diligence?

An ongoing OSH program that controls specific hazards in your workplace may form the basis of a defence of due diligence.

If you, as an employer, can show that the OSH program elements required by WCB regulations are in effect and working well, you will generally be able to establish due diligence.

You will also have to establish that you took special steps in controlling a specific hazard to show that you exercised due diligence in the particular circumstances. Generally, the greater the risk, the greater the need for specific policies, practices, and other measures to control the hazard.

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Why is documentation important?

Records provide a history of the activities of, and improvements to, the OSH program. They are evidence that you have a program that is working as intended.

However, a written program won't help you prove due diligence unless you have implemented it. Similarly, copies of written safety rules and procedures won't help you prove due diligence unless they are understood and followed by workers.

Documentation can show that you took steps to control or eliminate specific hazards. It can also show that you have provided workers with adequate instruction, training, supervision, and discipline to work safely.

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What kinds of records will help establish an active OSH program?

Examples of the types of records you should keep include:

  • Worker orientation records
  • Records of worker and supervisor training with the date, attendance, and general content of the program
  • Records of meetings and crew talks where safety issues were discussed
  • Inspection reports
  • Accident investigation reports and records of actions taken to solve problems
  • Supervisors' notes and logs of safety contacts with workers
  • Records showing the use of progressive discipline to enforce safety rules
  • Subcontractor prequalification documents
  • OSH committee minutes showing what steps have been taken to address safety and health issues
  • Equipment log books and maintenance records
  • Forms and checklists such as confined space entry permits that show that you require workers to follow safe work procedures
  • Medical certificates, hearing tests, and first aid records
  • Sampling and monitoring records of exposures to harmful substances
  • Statistics on the frequency and severity of accidents

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Many people believe that accidents just happen . . . how can anyone foresee them?

Accidents are caused by unsafe acts or unsafe conditions, or by a combination of unsafe acts and unsafe conditions. A key activity of an OSH program is to assess hazards to prevent harmful events in the future. This is also a critical factor in the due diligence standard.

You should routinely observe workers to identify and correct unsafe acts and poor work practices. Poor judgment by workers and poor work practices cause or contribute to many accidents. You may have to supervise some workers very closely or provide additional training to correct poor work habits. In some cases, you may have to discipline workers to ensure that they observe safety rules. Supervisors, managers, and senior managers should also be disciplined for failing to carry out their health and safety responsibilities.

Your OSH program must include activities that prevent the recurrence of accidents. Analyzing jobs and work procedures to identify hazards and taking steps to eliminate or reduce hazards are examples of these activities.

Your system of identifying and correcting hazards must include three basic steps:

  1. Eliminate hazards posed by equipment and work processes at the source. For example, redesign the work process, substitute a safer chemical for a hazardous chemical, or buy new equipment.
  2. If it's impractical to eliminate hazards, control the hazard to reduce the risk to workers. Machine guards and noise enclosures are examples of controls.
  3. If it's impractical to reduce the hazard with the preceding types of controls, protect the worker from the hazard. Methods of protecting workers include personal protective equipment, and adequate instruction, training, and supervision.

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OSH PROGRAM ELEMENTS

The Industrial Health & Safety Regulations refer to the following required elements of an OSH program:

1. OSH Policy

  • States the employer's commitment to safety and health and the OSH program objectives
  • Defines responsibilities and roles of the employer, supervisors, and workers

2. Regular Inspections of Premises

  • Show if the work site, machinery, equipment, and work practices meet safety and health standards
  • Identify conditions and unsafe acts with the potential to cause injury so that corrective measures can be taken
  • Must be conducted at intervals that will prevent the development of unsafe working conditions

3. Supplementary Instructions (Written Safe Work Procedures)

  • Identify hazards and clarify what must be done to eliminate or minimize the hazard to comply with WCB regulations
  • Guide and direct workers in the safe performance of their jobs
  • Are used as training standards

4. Management Meetings

  • Must be held regularly to review the OSH program activities and to decide how to make improvements

5. Investigation of Accidents

  • Determines causes of accidents, near misses, injuries, and diseases so that corrective actions can be taken to prevent them from happening again
  • Identifies unsafe conditions, unsafe acts, and unsafe work procedures along with solutions to prevent a future occurrence

6. Records and Statistics

  • Document the OSH program's history and improvements
  • Provide a record of program activities such as orientation, training, inspections, accident investigations, and sampling
  • Help identify trends, unusual conditions, and problem areas

7. Joint (Management-Worker) OSH Committee

  • Identifies safety and health problems
  • Allows workers to participate in safety and health
  • Provides a forum for solving safety and health problems
  • Recommends ways of improving safety and health activities to management

8. Instruction of Workers

  • Makes workers proficient in the safe performance of their jobs
  • Includes on-site direction and instruction by supervisors to ensure that workers perform their jobs safely
  • Includes training (e.g., orientation, crew talks, on-the-job training, and refresher training) to make workers proficient in the safe performance of their jobs

First Aid and the Workplace Hazardous Materials Information System (WHMIS) are also part of the OSH program. The Occupational First Aid Regulations specify the first aid equipment, supplies, facilities, and services required to provide workers with prompt first aid treatment. The WHMIS Regulations specify the information, labeling, and training requirements for hazardous substances.

Refer to the WCB publication, How to Implement an Effective Occupational Safety and Health Program, for more information on OSH programs. You can order this publication from the WCB Films and Posters Section.

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Can you give an example of how to meet the standard of due diligence?

Consider the example of a piece of equipment that you will be installing in your workplace. Health and safety should be considered in the selection process.

You should do an assessment to determine if special procedures are required for protecting workers who operate or service the equipment. What about noise or vibration -- have you chosen the quietest piece of equipment? What about ventilation -- will harmful emissions be captured and removed before workers are affected? What about lock-out?

If the assessment shows that it will be necessary to lock out the control devices to service or repair the equipment, you should take the following steps to prevent an accident from occurring:

  • Install devices that allow locks to be applied.
  • Develop written procedures that describe a step-by-step process for locking out all required points on the equipment and checking that the locked-out equipment can't be operated.
  • Train workers in the procedures and document that training.
  • Issue locks to the workers.
  • Post signs on or near the equipment reminding workers that lock-out procedures are required for servicing the equipment.
  • Observe the workers the first time that they use the procedures to ensure that they know how to use them correctly.
  • Monitor lock-out procedures from time to time to ensure that workers are following them. If you observe any problems, correct them on the spot and give refresher training to workers, if necessary.
  • Develop a system of progressive discipline and be prepared to use it when workers, supervisors, and managers deliberately ignore safety rules and regulatory requirements.
  • Review your lock-out program at least annually to determine its effectiveness.
  • Document the review process and the corrective action you take.

By following a similar process in all your work activities, you will be more likely to meet the due diligence standard of care.

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If an employer can prove that a worker attended a training session, why should the employer be held responsible if the worker has an accident?

Evidence that a worker attended a training session doesn't necessarily prove that the worker understood the training, nor does it prove that the worker intended to apply the training. You must take reasonable steps to ensure that the worker understood the training and was able to apply it successfully on the job. You should routinely monitor workers and correct unsafe work methods with instruction or refresher training as needed.

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Shouldn't workers be expected to use their common sense to recognize hazards?

Never assume that a worker will be aware of a hazard because "it's common sense". You must bring every risk -- even if it seems obvious -- to the attention of the workers you supervise. An effective system of supervision is a key part of the due diligence standard.

The employer must also know about a worker's right to refuse hazardous work and inform workers of this right. You must be familiar with the steps to follow in a work refusal situation.

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All this sounds fine in theory -- but how can employers feel confident that they are taking all reasonable precautions?

If you can answer yes to the following questions without hesitation, you should feel confident that you have met the test of due diligence:

 

YesNo
Do you know and understand your safety and health responsibilities?
Do you have systems in place to identify and control hazards?
Have you integrated safety into all aspects of your business?
Do you set objectives for safety and health just as you do for quality, production, and sales?
Have you committed appropriate resources to safety and health?
Have you assigned safety and health responsibilities to employees?
Have employees been given sufficient training so they can successfully discharge their safety and health responsibilities?
Do you hold managers, supervisors, and workers accountable for safety and health just as you do for productivity?
Do you keep records of your program activities and improvements?
Do you keep records of the training each employee has received?
Do your records show that you take disciplinary action when necessary?
Do you review your OSH program at least once a year and make improvements as needed?

 

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Need more information?

  • For more information on OSH programs or answers to other safety and health questions, contact your local WCB officer or the Prevention Information Line at 1-888-621-SAFE or (604) 276-3100.
  • For information on presentations and courses on OSH programs, contact your local WCB officer or call the Prevention Division's Outreach-Education section at (604) 276-3099.
  • To order WCB publications and videos, contact the Films and Posters Section at (604) 276-3068 or 1-800-661-2112, local 3068.  

 


 

The above information can also be obtained as a printed pamphlet (reference number PH33) by contacting the Films and Posters Section of the WCB.

 

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© Copyright Workers' Compensation Board of British Columbia
Richmond, B.C., Canada.  1996.  All rights reserved.  http://www.wcb.bc.ca
This information may be freely distributed but cannot be altered in any way.
 

This page last modified: July 9, 1997.