Williams HR Law LLP

Return to Work Case Studies from the Front Lines – Case Study #2

July 21, 2020

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Workplace Health and Safety and Due Diligence: The Importance of Risk Assessments

As many businesses reopen and most of the province begins to enter Stage 3, one of the challenges employers are navigating is when and how to conduct proper health and safety risk assessments for their workplaces.

In this second post of our blog series, Return to Work Case Studies from the Front Lines, we draw from our experiences working with employers “on the ground” to provide practical insights for organizations regarding the proper way to conduct a risk assessment. The following case study illustrates why risk assessments must be thorough and tailored in order to capture all the risks in a particular workplace and meet an employer’s due diligence obligations, and how well-intentioned employers can trip up in the risk assessment process.

As usual, the case study is based on a real-world situation with which we recently assisted a client. The details of the scenario have been adapted and anonymized.

The Scenario:

  • In preparation for reopening its business in late July, an employer began developing new workplace health and safety policies and ordered personal protective equipment (“PPE”), including masks and gloves. The company’s workforce includes both a manufacturing component and a sales component.
  • In mid-June, the employer consulted available guidance from the provincial government on health and safety measures that should generally be implemented in all workplaces, as well as sector-specific guidance. The employer also obtained a risk assessment template from another company in the same industry.
  • A small team of individuals from upper management applied the government guidelines and the external risk assessment template to conduct a health and safety risk assessment for the company. Upper management then developed new health and safety policies based on this risk assessment.
  • By late June, the employer solidified its new COVID-19 heath and safety policies and announced them to the workforce.
  • Shortly after the announcement, many employees working in sales expressed concerns about health and safety risks they would face in their roles.
    • In particular, employees whose work typically involved travelling and meeting with clients did not understand how the company’s policies would apply to them outside of the company’s own office buildings.
  • In mid-July, employees in the company’s manufacturing sector, who were expected to return to work in a factory setting, expressed fears about working in close proximity to one another in an indoor space.
    • In particular, some workers’ jobs inherently required being close to other colleagues to complete certain product assembly tasks, which the workers felt was not sufficiently addressed by the new policies. Additionally, the workers had questions about how physical distancing would be guaranteed when they entered and exited the building, changed into their uniforms in the locker rooms, and went on breaks.
    • Other workers did not understand how the new PPE requirements affected existing requirements that they wear protective equipment to guard against exposure to harmful chemicals.
  • The employer contacted us, asking us to vet their new health and safety policies, and assist them in responding to the work refusals.
How the Employer Met its Legal Obligations How the Employer Could Have Exposed Itself to Liability
  • Proactively developed new health and safety policies to address concerns related to COVID-19 in the workplace
  • Followed provincial government health and safety guidelines, and took advantage of government resources for return to work planning
  • Communicated the company’s return to work plan, including new workplace health and safety policies, to all workers
  • Failed to conduct a risk assessment tailored to its own particular workplace context, especially taking into consideration the different health and safety risks faced by travelling sales workers, and those faced by manufacturing plant workers in certain aspects of their duties and workday
  • Failed to exercise due diligence in meeting its health and safety obligations, relying only on a non-particularized risk assessment template and government guideline
  • Implemented new health and safety policies through a top-down approach, without consulting or including workers in the process, likely resulting in key safety risks being missed

Key Considerations and Takeaways:

In this case, while the employer did conduct a risk assessment and implement new health and safety policies, the employer neglected to ensure that the risk assessment was particularized to the specific risks of their workforce and to take into consideration the risks associated with the entire workflow of the business, from manufacturing to client sales. This gap in their risk assessment could expose them to significant liabilities if they have missed important workplace health and safety risks, as they did not meet their due diligence obligations.

Employers should ensure that they develop tailored risks assessments for their workplaces, and that they go beyond the provincial government’s health and safety guidelines. While consulting government resources and external templates can be informative, this is in no way sufficient for an employer to meet its due diligence obligations. Workplace health and safety risks must be assessed on a case-by-case basis, as failing to identify particular risks can expose an employer to liabilities under the Occupational Health and Safety Act.

Another common pitfall for employers is implementing PPE use as the primary health and safety measure in their workplace. In reality, under health and safety assessment conventions, PPE is generally considered a last-resort tool for mitigating risks associated with COVID-19, and many other mitigation strategies should be considered first, including elimination (removing the potential hazard), substitution (replacing the hazard), engineering controls (isolating employees from the hazard), and administrative controls (changing the way people work).

Employers should also avoid a top-down approach to risk assessment (and to return to work planning generally) and should instead proactively involve the organization’s health and safety representative/committee and workers from all areas of the organization in the process. This is particularly important where management is far removed from the realities of the workers on the ground, whether they be frontline client-serving employees or workers on the floor of a manufacturing plant.

The value of involving employees from different components of the business comes not only from the knowledge and insights they bring to the identification of risks and mitigation strategies. Involving employees in the process also helps ensure support and buy-in from other workers across the organization once new policies are rolled out, since workers will know these policies are grounded in consultation and feedback from workers. The workers involved can be very valuable champions of the initiatives implemented as a result of the risk assessment process.

In unionized workplaces, employers should also ensure to involve unions in the risk assessment process, which can result in many of the same benefits with respect to employee buy-in and minimizing work refusals.

In addition, employers should continually conduct risk assessments as the health and safety context evolves, and design policies that can be adapted to the changing circumstances over time. Furthermore, employers must remember to properly document the risk assessment process, as documentation is necessary to prove that an employer has been duly diligent in taking every precaution reasonable for the health and safety of its employees.

While this case dealt specifically with health and safety risks, risk assessments can be crucial for other employment law concerns, as we will discuss in a later blog in this series.

Stay tuned for next week’s installment in the case study series, which will address family status accommodations.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.