A safe work environment is the greatest benefit you can give your employees. However, is it possible that the cost of safety be too much for a company to bear? For some companies, safety can seem like an expensive and unnecessary burden, so where should we draw the line?
This post is going to cover a couple of different aspects of workplace health and safety, and how they can impact your company, so bear with us as we go through this one step at a time.
The first thing we want to mention is that regardless of the size of the organization, there will be some basic health and safety standards that need to be adhered to.
In Canada, certain Occupational Health and Safety (OH&S) regulations come into play as companies grow. This means that the more workers who are employed, the more complex the requirements will become, but it's important to keep up with these changes so that everyone has a chance of going home in one piece at the end of the day.
For example, in Alberta, organizations that employ less than 20 workers are required to have health and safety documentation, but do not need to have a full OH&S program in place. Once they exceed 20 workers, they need to have a health and safety committee, as well as a full OH&S program for their workplace.
If a company is finding it difficult to find the time and resources to comply with the applicable Occupational Health & Safety regulations, they may want to think about slowing down just a little. While the demand might be there for them to grow to better accommodate clients, an employer's first duty should be to ensure their workplace is safe for all workers.
Now let's start getting into the more complicated areas of the subject.
So, I suppose the first thing we should do is figure out exactly what due diligence is. Due diligence is defined by the Oxford dictionary as:
Reasonable steps taken by a person in order to satisfy a legal requirement, especially in buying or selling something.
In an OH&S setting, as defined by the Canadian Center for Occupational Health and Safety (CCOHS), due diligence means:
...that employers shall take all reasonable precautions, under the particular circumstances, to prevent injuries or accidents in the workplace.
Basically, the employer is responsible for making sure that all reasonable policies, procedures and other control methods are in place to protect all workers from injuries and illnesses at work.
This can include a comprehensive safety program, appropriate PPE, the correct guards on machinery, access to Safety Data Sheets, and of course, documentation that demonstrates everything the company is doing to ensure due diligence.
If anything were to happen to one of your workers, legally, you would need to prove that you had done everything within reason to protect them. A few things employers can do to make sure they meet the requirements of due diligence include:
- Create safety policies and procedures.
- Inform employees about health and safety policies and procedures.
- Keep records about health and safety.
- Monitor the safety progress of the business and evaluate how the policies are being applied.
- Ensure supervisors are competent.
- Document safety meetings and enforce disciplinary actions.
- Keep records of safety inspections.
- Keep equipment records.
- Record details of incidents and investigate them thoroughly.
- Document emergency plans.
- Give employees appropriate training and orientation.
Now that you know what your legal obligation to your workers is, let's talk about your obligation to workers with special circumstances.
Duty to Accommodate
Here's where that all starts to become a bit of a grey area, and can start causing companies a few headaches.
There may be instances where a worker requires some adjustments or special arrangements in order to have an equal opportunity at succeeding, and, legally, employers have a duty to accommodate them in a way that makes it possible for all workers to fully participate in company activities. But where do you draw the line?
For example, if at all possible, wheelchair access or a work from home position should be considered for those with physical disabilities, special screens can be provided for workers with visual impairments or light sensitivities, and workers with chronic illnesses or injuries have the right to time off for doctor's appointments. This all makes sense, and most of us would agree that if we needed any of the above, our employer would be happy to try to work out a solution to whatever issue we have.
But when does the duty to accommodate cross into the territory of being a "burden" on a company?
It is important to note that duty to accommodate can only go so far. Depending on the size of your company, accommodating a worker may be the difference between keeping your doors open, and closing the doors permanently.
The Ontario Human Rights Code uses the following criteria to determine whether or not undue hardship exists:
- Whether other sources of funding are available
- Health and safety requirements that may exist
OK, let's break these down a little further.
Cost: Will the cost of this adjustment or accommodation create a financial burden or threaten the financial viability of the business? There is no specific cost that defines undue hardship. It really depends on the financial stability of the company in question. If putting in that wheelchair ramp is going to bankrupt the company, you may want to look into the possibility of that individual working from home instead.
Are other sources of funding available: Under certain circumstances, there may be some financial assistance available to help put these accommodations in place. There are many social assistance programs who help businesses become more accessible or offer training and support for various other disabilities or health conditions. Just make sure you do your research before you make any promises to the workers in question.
Existing health and safety requirements: This could be one of the most important points we discuss when it comes to due diligence. If the necessary accommodations compromise any of the legislated health and safety policies or procedures already in place, they are creating a potential hazard and, therefore, placing an unreasonable burden on your company. For example, if you have a worker in a position that requires driving, and they are on medication which makes them drowsy, they are putting themselves, and everyone else in the workplace at risk.
It's important to note that there is some overlap between duty to accommodate and undue hardship, meaning, if the duty to accommodate is unreasonable for a company, it may be classified as undue hardship. The Canadian Human Rights Commission gave this example, which illustrated this concept pretty well:
A pilot for a small airline develops a medical condition that limits his peripheral vision. Because of his condition, he is no longer allowed to fly planes. The airline has very few employees, and there are no other jobs to offer him. The employer could argue that keeping the pilot on their payroll would cause undue hardship, and that letting him go is their only option.
Basically, if you can't offer the worker a different position, or modify their current position to meet their needs, claiming undue hardship and letting them go could be an option.
We are aware that this whole process isn't always this black and white, and outlining all the situations you may encounter would make this the blog post that never ends. So, we present to you the Canadian Human Rights Commission's Duty to Accommodate cheat sheet. If you ask the question, there's a really good chance that this document has the answer.
Ok, let's wrap it up.
Cost of doing business
Regardless of the size of the company, there will be OH&S costs. And these are crucial to creating a safe environment for yourself, your workers, and any guests who step foot in your workplace. If general health and safety regulations are weighing you down, chances are that you can't afford to have a major incident occur on site, or be able to support an injured worker.
While you should do everything in your power to accommodate workers' specific needs, it may not always be in the best interest of your company to do so. It is important to keep in mind that any employer willing to invoke an undo hardship claim needs to do their homework and be able to provide proof that this is the only way to proceed.
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