Surviving Workplace Inspections
by Jean Lian
The Ontario Ministry of Labour’s (MOL) 2018 inspection blitzes took place on April 1 and will run until March 21, 2019. The blitzes target specific areas in the following sectors: construction (working at heights, reversing equipment on construction projects); industrial (new and young workers, machine guarding, health and safety in warehouses and big-box retail); mining (conveyor guarding in mines and mining plants, mobile equipment); health care (violence prevention) and cross-sector initiatives (chemical handling, the Workplace Hazardous Materials Information System, ergonomics and musculoskeletal disorders).
Some people view workplace inspections as finding fault with businesses so that they can be prosecuted. “That is a little unfair,” Cynthia Sefton, partner with Aird & Berlis LLP in Toronto, said at Partners in Prevention health and safety conference and trade show held in Mississauga on May 2. While inspections often do result in prosecutions, “the main focus is really to help workers be safe.”
Each year, inspection blitzes protect workers’ rights under both the Occupational Health and Safety Act and the Employment Standards Act by focusing on sectors with a history of violations, employ vulnerable workers and have a rising number of employees, according to the MOL website. While the targeted industries are announced in advanced, the specific workplaces are not. Sefton says workplaces should know where they stand on the list because each year, the blitzes focus on different sectors, businesses and workers.
“It is not just about identifying contraventions, but also preventing non-compliance,” said co-presenter David Reiter, partner with Aird & Berlis LLP. Construction notices and high-risk businesses can also trigger an inspection. “It doesn’t have to be an accident. If an inspector shows up on a blitz and finds a contravention,” Reiter explained, “you are still open to prosecution and charges.”
An inspection is not an investigation, although it can lead to one. “The inspector comes to see if there is compliance; the decision to investigate as a possible offence comes later,” Sefton said. But the fact that an inspection can potentially lead to an investigation does not mean that workplace parties can assert their rights by not talking to an inspector. “In fact, it is an offence to refuse to cooperate on an inspection, and that should be fairly etched in your mind.”
One of the key areas that an inspection focuses on is the internal responsibility system (IRS), which refers to the system in an organization where everyone has direct responsibility for health and safety as an essential part of his or her job. As Acts and regulations do not always prescribe specific steps to take for compliance, employers are responsible for determining such steps to ensure the health and safety of all employees. Each person takes initiative on oh&s issues to solve problems and make improvements on an ongoing basis, individually or co-operatively.
Under the IRS, business owners, employers, directors, supervisors and instructors all have specific obligations to make sure the workplace is as safe as possible. For premises that hire contractors, keeping proper documentation and records of workplace-safety training is key so that they can be retrieved easily upon request by an inspector. “If you can’t prove it, it didn’t happen. That is the bottom line,” Sefton said.
The failure to provide oh&s training records is one of the things that inspectors issue orders for, Reiter added.
Even for contractors that a company has worked with for a long time, “it is really important to have some system whereby the quality of what they do — not just from a performance perspective, but also a safety perspective — is checked. And if there is a problem, it has to be brought to their attention,” Sefton said.
The same applies to temporary workers. “You have an obligation to be satisfied that [a temporary] worker has the same degree of skill and knowledge that your regular workers do if they are exposed to the same risks,” Sefton added, noting that some staffing agencies provide training to workers before assigning them to undertake certain types of work. “One way you can satisfy yourself is getting some proof from the agency that that person has had the appropriate training,” she advised, stressing that temporary workers need to be supervised more closely.
Inspectors have a lot of powers: they can interview workers; ask for certain testing to be performed; and issue orders to not use an equipment if it presents a hazard that can be immediately corrected. And it always pays to be respectful to an inspector.
“There is no need to have a confrontational attitude. They have a job to do and they have to do it,” Sefton said.
One of the things that employers need to be mindful of is that people do not always interview well, “not because they don’t know what they are doing; but they don’t necessarily know how to articulate it,” Sefton cautioned. As such, employers should consider training staff on how to communicate with inspectors.
The other recommendation, particularly those in high-risk industries, is to invite an inspector to a plant tour to help them understand the workplace prior to an inspection. “It is important to try and meet these “cops” before bad things happen, and they appreciate it because they may not understand your business as well as you do,” Sefton suggested. “If you can explain to them and give them some materials and show how it works, what systems you already have, it goes a long way to not being confrontational when they come either to inspect or investigate.”
For new workers, Reiter recommends the following preparations:
- Prepare an introduction package to be given to new workers on their first day of work and have them sign off on that;
- Assign a senior worker to serve as an official mentor for the new worker. The mentor should schedule documented interactions to ensure that a new worker is aware of the risks and their obligations;
- Organize interview sessions for new workers so that they can interact with joint health and safety committee members and understand workplace-safety issues;
- Have a supervisor take a new worker on inspections so that they understand what inspections look for; and
- Monitor and enforce compliance.
Jean Lian is editor of OHS Canada.