Effective Health & Safety Programs: The key to a safe workplace and a defense of due diligence

YOU CAN DO IT!

This pamphlet is designed mainly for employers and supervisors who must ensure their OHS programs meet a standard acceptable to WorkSafeNB. However, if you’re a worker, you’ll find this 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.

It’s the employer’s responsibility to implement an occupational health and safety (OHS) program to prevent workplace injury, illness and disease. If an employer has a good health and safety program and is attentive to health and safety practices, they are likely to be successful in avoiding accidents. If an accident occurs, the employer may well be successful in establishing a defence against a charge that the Occupational Health and Safety Act (OHS) has been breached.

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

• Defines due diligence.
• Describes how WorkSafeNB views due diligence.
• Explains how WorkSafeNB asesses compliance with regulations.
• Identifies the elements of an OHS program.
• Explains how OHS programs help establish due diligence.

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 health and safety responsibilities. This is the standard of care required to comply with the health and safety regulations and orders made under the New Brunswick OHS Act.

What is the defence of due diligence?

In prosecutions for violations of health and safety 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 standards the courts apply in determining whether an accused has exercised due diligence is not absolute – as an employer, you aren’t expected to anticipate and prevent every possible accident. However, you must take all the precautions that a reasonable and prudent person would take in the circumstances.

How does WorkSafeNB encourage compliance with its regulations?

WorkSafeNB encourages compliance with health and safety regulations through consultation and education, and by issuing orders to correct violations of the Act and Regulations. WorkSafeNB’s officers are legally authorized to enforce health and safety regulations in New Brunswick. WorkSafeNB can stop hazardous 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 more than four feet deep without adequately supporting or sloping the sides of the excavation.
• Failing to fell snags (dead trees) and using domino felling Procedures in logging.
• Permitting workers to be exposed to situations or conditions that are immediately dangerous to life or health.

Can orders be issued to employers and workers?

Consider the example of a WorkSafeNB health and safety officer who, while inspecting a work site, finds a piece of machinery missing a guard. The officer determines the violation. Was it due to a failure to inspect the work site regularly? A lack of 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, an order will be issued to the employer. If the officer finds that a worker, despite adequate training and supervision, deliberately violated a regulation or violated it due to carelessness or neglect, the officer will issue an order to the worker. In effect, the officer will consider whether it was the employer or the worker who committed the infraction.

Under what circumstances does WorkSafeNB consider recommending a case for prosecution?

WorkSafeNB considers recommending prosecutions of employers, supervisors and workers when:

• Violations could or did result in the death or serious injury of a worker.
• WorkSafeNB 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 WorkSafeNB officer.

Why is the OHS program critical to establishing due diligence?

An ongoing OHS 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 OHS program elements are in effect and working well, you may be able to establish due diligence. You’ll also have to establish that you took steps to control the specific hazard that caused the accident 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.

Why is documentation important?

Records provide a history of the activities of, and improvements to, the OHS 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.

What kinds of records will help establish an active OHS 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 health and safety issues were discussed.
• Inspection reports.
• Accident investigation reports and records of actions taken to solve problems.
• Records showing the use of progressive discipline to enforce safety rules.
• Subcontractor prequalification documents.
• Joint health and safety committee (JHSC) minutes showing what steps have been taken to address health and safety 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.

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

Accidents are caused by unsafe acts or unsafe conditions. A key activity of an OHS program is to assess hazards to prevent harmful events in the future. Foresight 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 OHS program must include activities that prevent the recurrence of accidents; for example, analyzing jobs and work procedures to identify hazards, and taking steps to eliminate or reduce those hazards.

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.

OHS Program Elements

The following elements should be included in your OHS program:

1. OHS policy:
• States the employer’s commitment to health and safety and the OHS 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 health and safety 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 N.B. health and safety 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 OHS program activities and 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 OHS 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) health and safety committee (JHSC):
• Identifies health and safety problems.
• Allows workers to participate in health and safety.
• Provides a forum for solving health and safety problems.
• Recommends ways of improving health and safety activities to management.
8. Instruction of workers:
• Makes workers proficient in safe job performance.
• Includes on-site direction and instruction by supervisors to ensure that workers perform their jobs safely.
• Includes training (orientation, crew talks, on-the-job training and refresher training) to make workers proficient in safe job performance.

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 to protect 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.
• Provide locks to 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 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.

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 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.

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 the worker’s right to refuse hazardous work and inform the worker of this right. You must be familiar with the steps to follow in a work refusal situation.

All this sounds fine in theory, but how can employers feel confident 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.

YES	NO
[   ]	[   ]	Do you know and understand your health and safety responsibilities?
[   ]	[   ]	Do you have systems in place to identify and control hazards?
[   ]	[   ]	Have you integrated health and safety into all aspects of your business?
[   ]	[   ]	Do you set objectives for health and safety just as you do for quality, production and sales?
[   ]	[   ]	Have you committed appropriate resources to health and safety?
[   ]	[   ]	Have you assigned health and safety responsibilities to workers?
[   ]	[   ]	Have workers been given sufficient training so they can successfully discharge their health and safety responsibilities?
[   ]	[   ]	Do you hold managers, supervisors, and workers accountable for health and safety just as you do for productivity?
[   ]	[   ]	Do you keep records of the training each worker has received?
[   ]	[   ]	Do your records show that you take disciplinary action when necessary?
[   ]	[   ]	Do you review your OHS program at least once a year and make improvements as needed?

Need more information?

For more information on OHS programs or answers to other health and safety questions, contact the WorkSafeNB regional office nearest you.

You can also check out the CCOHS website, www.ccohs.ca, or call 1 800 263-8466 for health and safety information.

WorkSafeNB offices

Grand Falls
Tel: 506 475-2550
Toll-free: 1 800 222-9775
Fax: 506 475-2568

Bathurst
Tel: 506 547-7300
Toll-free: 1 800 222-9775
Fax: 506 547-7311

Dieppe
Tel: 506 867-0525
Toll-free: 1 800 222-9775
Fax: 506 859-6911

Head office (Saint John)
Tel: 506 632-2200
Toll-free, Claims Inquiries: 1 800 222-9775
Toll-free, Assessment Services: 1 800 222-9775
Fax, Assessment Services: 506 632-2819

Grand Bay-Westfield Office and Workers’ Rehabilitation Centre
Tel: 506 738-8411
Toll-free: 1 800 222-9775
Fax: 506 738-4050

Acknowledgment: most of the information in this booklet comes directly from a publication produced by WorkSafeBC.