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.

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.