Be prepared if an inspector knocks at your door

by Karen M. Sargeant and Daniel M. Pugen

In most Canadian provinces, occupational health and safety legislation provides for government inspections.

Besides random or regular audits, workplace accidents often will prompt inspections, and especially where an accident has taken place, prosecution of the employer and managers is a potential outcome. Inspectors generally have broad powers to enter a workplace, operate or test machinery, interview employees, and seize records, samples, or equipment.

Regulatory climate
The climate is chilly to say the least. In recent years, Ontario’s Ministry of Labour (MOL) has hired hundreds of new inspectors and has put renewed focus on enforcing compliance with occupational health and safety legislation. An example of this can be seen in the MOL’s efforts to curb workplace violence.

As discussed in our blog entry Workplace Violence: Health and safety legislative and regulatory responses, the MOL has devised a workplace violence prevention initiative and has instructed inspectors to make orders and issue directives to employers in certain industries lacking workplace violence prevention programs.

In addition, health and safety legislation has been amended in recent years to institute severe penalties for legislative noncompliance. As an example, in Ontario, the Occupational Health and Safety Act now imposes a maximum fine of $500,000 for corporations and, for individuals, a maximum fine of $25,000 and/or imprisonment for 12 months. Individuals are now being charged with offenses more often than before, both with and without their employer being charged.

Finally, in response to an explosion at a mine in Nova Scotia that killed 26 miners, the Criminal Code of Canada was amended to impose a legal duty on organizations and individuals who direct how others work and to expand the kind of individuals who can be seen as acting for an organization. As a result, it’s now easier for the courts to impose criminal liability for health and safety accidents. (See articles on Bill C-45 amendments and exposure to criminal liability.)

Given this climate, it’s imperative for organizations to have sound and diligent health and safety practices. You also should have procedures in place to deal with health and safety inspectors when they arrive in your reception area.

Tips for responding to health and safety inspectors
The tips below will assist your organization in ensuring that a health and safety inspection in your Canadian operation is conducted in an orderly and reasonable fashion with minimal disruption. Following the tips will provide procedural safeguards against overzealous inspectors and also will decrease the risk that your organization will be charged under health and safety legislation.

Before an inspector arrives

• Designate a contact person (and backup) at each location.
• Develop procedures for dealing with inspectors and train staff in those procedures.
• Maintain a separate file for privileged material (e.g. communications with your attorney).
• Keep in-house or outside legal counsel informed of any situations that may increase the likelihood of an inspection (e.g. a workplace accident, an employee injury on the job, a “near miss,” defective machinery, etc.)

When an inspector arrives

• Immediately contact the designated contact person.
• Check the inspector’s identification.
• Ask the inspector what the purpose of his or her visit is. Is it a general audit or a more specific investigation in aid of a possible prosecution? The inspector’s powers, and your procedural rights, may differ based on the inspector’s answer.
• Consider immediately contacting legal counsel.
• Have someone (hopefully the designated contact person) accompany the inspector at all times. Never leave the inspector alone.
• Be careful not to obstruct the investigation (which could be considered an offense). However, you may be able to make alternate arrangements for the time and date of the inspection.
• Keep notes of everything the inspector does and says in his or her visit. The notes will be invaluable to your counsel if the inspector’s actions need to be challenged in court.
• Remember that anything you say, even if you think it’s “off the record” may be recorded by the inspector and used against the employer or you later.
• Keep a record of all documents and other items taken by the inspector. Object if the inspector requests privileged documents.
• Cooperate in any interviews, but consider asking the inspector to return later to conduct the interviews. This will give legal counsel an opportunity to meet with any persons to be interviewed to help them be prepared. It also will give you a chance to conduct any further internal investigations.
• Request that legal counsel or another employer representative be present in any interviews. If the interviews may lead to prosecution, the individuals have a right to have counsel present.
• Ensure that everyone answers all interview questions honestly. “I don’t know” is an acceptable answer.
• Inspectors may create a “witness statement” and ask the interviewee to sign the document. There is no obligation to sign the statement. However, if forced, the interviewee should sign the statement but note his or her objection in order to avoid obstruction charges.
• If the inspector has a search warrant, immediately contact legal counsel and ask the inspector to wait until your legal counsel arrives. Although inspectors have no obligation to wait, most will. Ensure that the inspector’s activities don’t extend beyond the parameters of the search warrant.
• If you have any objections to anything the inspector is doing, note your objections on paper but don’t attempt to obstruct the search.
• Don’t underestimate the importance of an inspector’s visit. Information gathered by an inspector could form the basis for a prosecution down the road.
• Everything you say or do during an investigation is therefore very important.

New top 10 rules for video surveillance in Canada

By Barbara A.  McIsaac and Rachel Ravary

By now, we all know that video surveillance of employees is a touchy subject and should be used only as a last resort. But when you’ve examined all of the alternatives and have come to the conclusion that no other solution will do, we can at least give you some guidance on how to do it right.

Recently, the Federal, British Columbia, and Alberta Privacy Commissioners got together to issue new guidelines for the use of video surveillance.

Who is covered under the guidelines? Well, technically, they apply to all federally regulated employers such as banks, railways, air transportation, and inter-provincial trucking companies, as well as employers in British Columbia and Alberta. That being said, the guidelines are general rules that can and should be considered no matter what Canadian jurisdiction you’re operating in.

The guidelines set out a top 10 list of factors to consider when deciding whether to use video surveillance and when putting your video surveillance plan in place. Remember that under most provinces’ privacy laws, as well as the federal law, the rule is that personal information cannot be collected, used, or disclosed unless it’s reasonable in the circumstances, and even then, only with the consent of the individual involved. In Québec, the standard is a little higher and requires that the information be necessary.

Here is our summary of the guidelines.

Top 10 guidelines for video surveillance
1. Consider the alternatives. Before you resort to video surveillance, consider whether you can achieve your goal with a less invasive alternative.

2. Set the ground rules. Develop a policy on the use of video surveillance.

3. State your purpose. Narrow down the specific business reason for using video surveillance – and use it only for that reason.

4. Don’t go overboard. Limit the use and viewing range of cameras as much as possible.

5. Smile! You’re on camera. Inform your employees – and the public if the camera is in a public area – that video surveillance is taking place.

6. Guard the evidence. Store any recorded images in a secure location, with limited access, and destroy them when they are no longer required for business purposes.

7. Be transparent. Be ready to answer questions from employees or the public. They have the right to know who is watching them, why, what is being recorded, and what is being done with recorded images.

8. Hand it over. Give individuals access to information about themselves. This includes video images.

9. Train your people. Educate camera operators about the obligation to protect the privacy of those who are being filmed.

10. Re-evaluate. On a regular basis, reconsider whether you still need video surveillance.

The guidelines also offer some practical tips for setting up your video surveillance system to collect the minimum amount of information necessary to be effective. For instance:

• Have cameras record for only limited periods in the day rather than having them on continuously. Even better, if you’re targeting a specific problem – such as theft by a particular employee or in a particular area – only turn the camera on when the targeted activity is suspected or observed.
• Try to position cameras to avoid capturing images of individuals who aren’t being targeted.
• Don’t put cameras in places where people have a heightened expectation of privacy, for example, washrooms or into windows.
• Make sure that your system doesn’t allow camera operators to manipulate or reposition cameras to capture inappropriate images.
• Sound should not be recorded unless there is a specific need to do so.

If you have questions about these guidelines or related issues, lawyers in McCarthy Tetrault’s Labour and Employment and Privacy groups can help you. We regularly advise clients on issues relating to various forms of employee surveillance and/or monitoring and compliance with federal and provincial privacy legislation.

McDonald’s fails to accommodate employee unable to wash hands

by Daniel M. Pugen and Earl G. Phillips
In Canada, human rights legislation provides that employers have a duty to accommodate disabled workers unless such accommodation would cause “undue hardship” on the employer.

A recent case involving McDonald’s Restaurants before the British Columbia Human Rights Tribunal illustrates the high standard of accommodation expected of employers. It also shows the kinds of proactive measures employers may have to take before accommodation is considered “undue hardship.”

In the case, the tribunal found that McDonald’s improperly terminated the employment of a long-time employee. McDonald’s didn’t do enough to accommodate the employee who developed a skin condition that prevented her from working and meeting the restaurant’s hand-washing policy. (more…)

Health and safety legislative and regulatory responses

by Daniel M. Pugen

Workplace violence has become a hot topic among labor, employment, and health and safety regulators in Canada. Of course, workplace violence is hardly a new phenomenon. Certain workers like police officers have an inherent risk of workplace violence. Also, put enough people in an enclosed area under stressful conditions (i.e., the typical office scenario) and some form of conflict is bound to result.

Whether it’s actual physical aggression or other forms of workplace violence like threats or harassment, some research suggests that such conduct is on the rise.

Some stats
The statistics on workplace violence are revealing.

The Canadian Initiative on Workplace Violence found that 66 percent of employers surveyed reported an increase in aggressive acts in their workplace over the past five years. On February 16, 2007, Statistics Canada released a report titled Criminal Victimization in the Workplace. Some of the findings:

• Nearly one-fifth of all physical and sexual assaults in Canada in 2004 happened in the workplace.
• Of the 356 violent incidents that occurred in Canadian workplaces in 2004, 71 percent were physical assaults.

These statistics, and various high-profile incidents at Canadian and U.S. universities and workplaces, have prompted legislators and regulators to take action. In Canada, the result has been:

• imposing duties and liabilities regarding workplace violence on employers under health and safety legislation; and
• requiring employers to implement standards and practices to reduce the risk of workplace violence.

What is workplace violence?
Workplace violence is not limited to acts of physical aggression. The Canadian Centre for Occupational Health and Safety defines workplace violence as:

• Threatening behavior – such as shaking fists, destroying property, or throwing objects.
• Verbal or written threats – any expression of intent to inflict harm.
• Harassment – any behavior that demeans, embarrasses, humiliates, annoys, alarms, or verbally abuses a person and that is known or would be expected to be unwelcome. This includes words, gestures, intimidation, bullying, or other inappropriate activities.
• Verbal abuse – swearing, insults, or condescending language.
• Physical attacks – hitting, shoving, pushing, or kicking.

The Ontario Ministry of Labour has defined workplace violence as “the attempted or actual exercise of any intentional physical force that causes or may cause physical injury to a worker. It also includes any threats that give a worker reasonable grounds to believer he or she is at risk of physical injury.”

Workplace violence may occur within a traditional workplace or off-site at conferences, work-related social events, or even at a home office via telephone or e-mail.

Regulation of workplace violence
Federal and provincial occupational safety legislation, like the U.S. Occupational Safety and Health Act, contain general prohibitions to ensure that the workplace is safe. These prohibitions may be broad enough to recognize (and impose liability for) violence, threats, or any such conduct that makes the workplace unsafe. Such legislation also usually contains provisions protecting persons who work alone or in remote locations.

More specifically, employees in Quebec are also protected against “psychological harassment” in the workplace. The Canadian provinces of Alberta, British Columbia, Prince Edward Island, and Saskatchewan also have enacted specific provisions on workplace violence in their health and safety laws.

In addition, there is a proposed federal regulation and a proposed amendment to Ontario’s health and safety law. These provisions go further than the general provisions and spell out specific standards and requirements for employers. Under most of these laws employers must generally:

• create a comprehensive workplace violence prevention policy;
• conduct “risk assessments”;
• to the extent reasonably practicable, develop “controls” and “procedures” to eliminate or minimize workplace violence;
• provide training for managers;
• develop procedures for investigating and reporting incidents and calling for assistance when required;
• allow employees to refuse to work where they reasonably believe they may be in danger of workplace violence; and
• maintain various records.

Regulators taking note
Regulators have taken their cue from the increased legislative action.

For example, the Ontario Ministry of Labour, in a joint effort with the Ontario Workplace Safety and Insurance Board, has made workplace violence a priority through their workplace violence prevention initiative.

Health and safety officers have been instructed to make orders and issue directives to employers in certain industries either because there is no workplace violence prevention program in place or because the program is lacking in some way.

Government health and safety officers have broad powers under health and safety legislation to allow them to enter a workplace and perform various activities to enforce compliance with health and safety legislation.

For example, officers may conduct safety audits and inspections. They may also investigate the circumstances surrounding the report of a contravention, work accident, refusal to work, or hazardous occurrence. Offenses can lead to significant fines, and in some cases, imprisonment.

What should employers do?
Unfortunately, workplace violence seems to be on the rise. In addition to the legal risks, incidents of workplace violence take their toll on organizations in other ways. These may include lower worker morale, turnover, blemished company image, and loss of clients.

Some things that employers should consider doing are as follows:

• Review legislative and regulatory requirements to ensure compliance.
• Establish a comprehensive workplace violence policy.
• Undertake the risk assessment and other measures outlined above.
• Offer a confidential Employee Assistance Program to allow employees subject to workplace violence or those with personal problems to seek help.
• Ensure that proper security measures are in place.
• Keep detailed records of any workplace violence, investigation or work refusal.
• In short, as employers you should be vigilant and you should ask your employees to be vigilant.

What to do when U.S. national security, Canadian employment laws clash

by Rachel Ravary

No one can deny that security concerns have taken on monumental proportions in the post-9/11 era. Buzzwords like national security, homeland security, border security, supply chain security, perimeter security, and security threats have become part of our daily vocabulary. National security is also high on the list of priorities of our respective lawmakers.

In the past several years, the U.S. State Department has become increasingly strict in its enforcement of export and transportation controls, most importantly the International Traffic in Arms Regulations (ITAR).

Unfortunately, these controls are often at odds with Canadian employment laws especially those dealing with privacy and human rights – leaving companies whose business depends in whole or in part on trade in ITAR-controlled materials between a rock and a hard place.
What are the issues? Could you be exposed? What is being done to resolve them? How can you limit your risks in the meantime? Those are some of the questions that this week’s blog will address.

Q. What are the ITAR?

A. The ITAR were adopted under the U.S. Arms Export Control Act, which essentially regulates the export of U.S. defense articles and services. Among other things, the ITAR impose strict licensing requirements before any non-U.S. person or company can come into contact with ITAR-controlled materials.

To be granted a license, the person or company must guarantee that no citizen of any one of the 25 “embargoed countries” will be permitted access to or contact with ITAR-controlled materials. This includes individuals who are Canadian citizens but who hold dual nationality with an embargoed country.

Companies who violate the ITAR by failing to restrict access to unauthorized individuals expose themselves to hefty fines, not to mention contractual liability and the resulting damage to their business.

Q. Who must comply with the ITAR?

A. Don’t be misled by the title – the ITAR have a far wider reach than military arms dealers. By definition, the restrictions apply to any company involved in the export or import of U.S. defense-related articles and services. This obviously includes such things as firearms and military equipment, but it also extends to less likely suspects such as protective personal equipment, training manuals and materials, fire control equipment, radiological devices, air and spacecraft, to name a few.

As well, the regulations cover any components, parts, accessories, and technical data used in those articles and any related services, for example, training, design, assembly, testing, repair, and maintenance. To date, the aerospace, transportation, and telecommunications industries seem most affected.

Q. Why should we be concerned by the ITAR?

A. The ITAR controls clash with Canadian human rights laws, which generally prevent an employer from discriminating against an employee on the basis of nationality or country of origin. As well, compliance with ITAR raises issues of infringement of privacy to the extent that employers will have to ask about their employees’ national origins, whether they still hold citizenship in those countries, etc.

Finally, complying with ITAR could put some employers in direct conflict with their employment equity or affirmative action obligations.

Q. Is it possible to comply with ITAR without violating Canadian employment laws?

A. The ITAR have a lot of Canadian critics, and most of them seem to be saying, “No.” More revealing is the position of Canada’s Department of National Defence (DND), which has clearly said that compliance with ITAR restrictions would be inconsistent with the Canadian Charter of Rights and Freedoms and human rights legislation.

Q. How have the Canadian authorities responded?

A. To date, human rights complaints have been filed in Quebec, Ontario, and Manitoba by employees or former employees who were either fired, reassigned, or denied professional opportunities because of the application of ITAR restrictions. Without exception, the provincial human rights commissions have taken the firm position that the ITAR restrictions are discriminatory and violate human rights laws.

Presumably, fear of the larger implications has led all of these cases to be settled before hearing. As such, we don’t have the benefit of any decision on the merits of the issue – in particular whether the application of the ITAR rules could be viewed as a bona fide occupational requirement.

Q. What is being done to resolve the problem?

A. Talks between the Canadian Minister of Foreign Affairs, DND, and the U.S. State Department began in 2006 and have recently resulted in an agreement to allow DND personnel who are Canadian citizens, including dual nationals, to access ITAR-controlled materials on a need-to-know basis, subject to a minimum secret-level security clearance. Discussions are continuing to try to reach a similar arrangement for private Canadian businesses.

Q. What can you do in the meantime?

A. There are no easy answers to this one. While we wait for a politically negotiated arrangement to address the difficulties raised by the ITAR, the best advice we can offer is:

• Clearly identify the parts of your activities that are subject to the ITAR and the affected employees as narrowly as possible.
• Ensure that your U.S. parent or U.S. business partners are aware of the challenges that the ITAR pose with respect to Canadian employees.
• To the extent possible, offer employees work on projects that are subject to the ITAR on a voluntary basis, specifying that ITAR compliance is a condition of the assignment.
• Specifying ITAR compliance as a job requirement at the recruitment stage may discourage some candidates who don’t meet the requirements from applying. However, because human rights and privacy laws generally prohibit you from asking an applicant about national origin, and discrimination protections typically apply to the hiring stage, this approach has its limits.
• Avoid at all costs firing, demoting, or otherwise compromising the professional advancement of an employee as a result of ITAR constraints.
• If problematic situations arise, deal with them on a case-by-case basis, and attempt to resolve them in a way that is satisfactory to the affected employee.

How will your business respond to Family Day?

by Brian P. Smeenk

A new statutory holiday, Family Day, has been declared in the province of Ontario. It will be celebrated on February 18. In subsequent years, it will fall on the third Monday of each February.

Employers should begin considering how their organization will respond. In particular, employers should begin reviewing existing employment contracts and collective agreements to determine whether they will treat Family Day as an additional holiday for employees.

Many employers already provide employees with more contractual public holiday rights and benefits than required by the minimum employment standards laws of Ontario – the Employment Standards Act (ESA). For example, a number of employment contracts and collective agreements provide “floater days” in addition to the original eight statutory holidays.

Employers should be aware that under the ESA, if the provisions of an employment contract or collective agreement provide a “greater right or benefit” than those provided by the ESA for the same subject matter, the contractual provisions apply and the ESA doesn’t apply. (more…)

Big Brother is here: Ontario’s integrated approach to enforcement

by Daniel M. Pugen

Ontario’s new Regulatory Modernization Act, 2007 may sound like a bland piece of regulatory updating, but it actually contains significant changes to regulatory enforcement processes, including those in the employment field.

Passed by the Ontario legislature on May 17, 2007, and going into effect on January 17, 2008, this law will have real consequences for companies operating in Ontario.

The new law significantly affects the scope of government workplace investigations. It also affects the penalties and sentences for noncompliant employers by broadening the powers of all of the Ontario government’s enforcement branches, including the Ministry of Labour.

Most importantly, the Act permits government departments, or “ministries,” to:

• Share information collected and observations and findings made in the course of their investigations;
• Consider an employer’s compliance record including previous convictions and penalties imposed under other legislation when determining appropriate sentences for legislative violations; and
• Make available to the public the information collected in the course of workplace investigations, including the employer’s compliance record. (more…)

Biometric hand scanners vs. religious beliefs: What does the law say?

by Daniel Pugen

In Canada, employers must accommodate their employees’ religious beliefs to the point of “undue hardship” for the employer. But what if you don’t consider an employee’s religious beliefs “mainstream”?

That doesn’t matter, according to a recent decision by an Ontario labor arbitrator.
Following on a Supreme Court of Canada ruling, the arbitrator ruled in 407 ETR Concession Co. and C.A.W.-Canada, local 414 that an employer must accommodate employees’ religious beliefs as long as they are “sincerely held.”

This important decision arises out of an employer’s attempt to implement a new security system that used a biometric hand scanner to identify employees. The arbitrator ruled that the employer failed to properly accommodate three employees who were dismissed for refusing to use the biometric scanners for religious reasons. (more…)

Ontario adds holiday to celebrate families; other provinces may follow

By Daniel Pugen

Following its recent re-election in October, the Ontario provincial government led by Liberal Premier Dalton McGuinty established a new public holiday called “Family Day.” The holiday falls on the third Monday in February each year. Ontario joins the provinces of Alberta and Saskatchewan in creating a public holiday in February.

Ontario now has nine public holidays: (more…)