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Guidelines Workers Compensation Act

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Guidelines Workers Compensation Act Part 3 Division 12

G-D12-187-1 Worker orders

Withdrawn September 30, 2009 (please refer to G-D3-116 Orders to workers)

G-D12-187-2 Order(s) when there is no violation

Issued June 26, 2003; Editorial Revision June 2005; Revised April 25, 2012

This guideline discusses the authority for and the circumstances where an officer of the Board may issue an order on a person or employer, even though there has been no violation of the Workers Compensation Act or the regulations.

Section 187 of the Workers Compensation Act states:

(1) The Board may make orders for the carrying out of any matter or thing regulated, controlled or required by this Part or the regulations, and may require that the order be carried out immediately or within the time specified in the order.

(2) Without limiting subsection (1), the authority under that subsection includes authority to make orders as follows:

(a) establishing standards that must be met and means and requirements that must be adopted in any work or workplace for the prevention of work related accidents, injuries and illnesses;

(b) requiring a person to take measures to ensure compliance with this Act and the regulations or specifying measures that a person must take in order to ensure compliance with this Act and the regulations;

(c) requiring an employer to provide in accordance with the order a medical monitoring program as referred to in section 161;

(d) requiring an employer, at the employer's expense, to obtain test or assessment results respecting any thing or procedure in or about a workplace, in accordance with any requirements specified by the Board, and to provide that information to the Board;

(e) requiring an employer to install and maintain first aid equipment and service in accordance with the order;

(f) requiring a person to post or attach a copy of the order, or other information, as directed by the order or by an officer;

(g) establishing requirements respecting the form and use of reports, certificates, declarations and other records that may be authorized or required under this Part;

(h) doing anything that is contemplated by this Part to be done by order;

(i) doing any other thing that the Board considers necessary for the prevention of work related accidents, injuries and illnesses.

(3) The authority to make orders under this section does not limit and is not limited by the authority to make orders under another provision of this Part.

All orders made by the Board are issued under the authority of section 187, which allows orders for past violations as well as orders to prevent future violations.

Section 188(4) of the Act states:

An officer of the Board may exercise the authority of the Board to make orders under this Part, subject to any restrictions or conditions established by the Board.

Generally, prevention officers will only issue compliance orders if non-compliance with the Act or the regulations is observed or determined during a workplace inspection, inquiry, or investigation. However, there may be occasions when an officer will issue compliance order(s) even when no violation of the Act or the regulations has occurred. Policy on the authority of an officer to make orders under sections 187 and 188 of the Act are set out in Prevention Manual Items D12-187-1 and D12-188-1. OHS Guideline G-D12-188(4) is related to this topic. There is no published restriction or condition that limits the authority of an officer of the Board to issue an order only in the circumstances where a violation is occurring or has occurred.

An officer may make an order to an employer even though no violation of the Act or regulations has occurred. Such orders will not be issued routinely, but rather will be issued if the officer has evidence that the person subject to the order does not intend to comply in the future. Mere lack of knowledge about the Act or regulations is not sufficient to show an intention not to comply. Lack of knowledge (without additional evidence of intention not to comply) can and should be the subject of discussion between the officer and the employer representative or other relevant party, and the officer will document such discussion in the inspection text of an inspection report (IR) or consultation record (CR).

Express or implied intent not to comply

In order for an officer to issue an order where there is no violation of the Act or the regulations, the officer must identify (and support with evidence) an express or implied intention not to comply by the person subject to the order. Where a person expressly informs the officer that he or she will not comply with the requirements of the Act or the regulations, the officer may issue an order requiring that person to take the appropriate steps to achieve compliance. A person may express an intention not to comply in a number of ways. For example, he or she may claim an inability to comply because of lack of knowledge, economics (such as saying they can't afford to comply), impracticality of compliance, or related arguments. In this case, the officer should explore with the person his or her intention to address any impediments to compliance. If the person is unwilling or unable to address impediments to compliance, the officer may issue an order requiring that person to take the appropriate steps to achieve compliance. However, if the person agrees to address the impediments to compliance he or she has raised, then the officer should not write an order. The officer must record the particulars of this discussion in the inspection text of the IR or on a CR.

There may be occasions when an officer receives information from other individuals at a workplace that a person has no intention of complying with the Act or the regulations. In this instance, the officer will need to inquire directly of that person with regard to his or her intention regarding compliance. Statements from third parties, without further investigation, are not sufficient to establish an intention not to comply.

An implied intent not to comply is determined by examining the circumstances that indicate that the person will not comply. Some key elements that should be present are:

  1. the person would have to take reasonable steps prior to a work activity in order to comply with the Act or the regulations, and
  2. the person who is subject to the order has not taken, in a timely fashion, the reasonable steps required in order to comply.

For example, consider the situation if some friable asbestos insulation on a pipe elbow has been hit and damaged, resulting in asbestos contamination of a small area of a plant. The employer has response procedures for such an event, and the crew implements them immediately. The affected area is barricaded and signs are posted to keep workers clear of the danger area. The emergency repair crew is summoned to patch the damaged area and clean up the asbestos debris. An officer inspecting the workplace arrives on the scene just as the supervisor and repair crew start to put on their protective clothing prior to entry into the hazard area. The officer notices one of the crew is not clean-shaven where the respirator will need to seal against the worker's face. Section 8.39(2) of the OHS applies. The officer questions the supervisor and the worker regarding their intentions. Both the supervisor and the worker are aware of the requirements of section 8.39(2). But since this is a "small job" and they do not have any shaving equipment readily available, they want to get on with the repair and cleanup, rather than wait for the worker to shave. The officer intervenes and issues an order that the worker is not to put on a respirator and enter the danger area until he is clean-shaven where the respirator seals with his face. Note at this point there has been no violation of section 8.39(2), so the text of the order does not indicate a violation has occurred. The order could be worded as follows:

A worker (John Doe) assigned to repair and cleanup work in an asbestos contaminated area was about to don a respirator and enter the asbestos contaminated area and was not clean-shaven where the respirator is required to seal with his face. Section 8.39(2) of the OHS applies. A worker required to use a respirator that requires an effective seal with the face for proper functioning must be clean-shaven where the respirator seals with the face. Ensure any worker required to use such a respirator is clean-shaven where the respirator seals with the worker's face before donning the respirator and entering the hazard area.

Orders of this type will normally be issued only when there is a significant risk to workers should the work proceed without compliance. Note the order does not reference section 187 of the Act. That section provides the authority for the officer to issue the order. There is no violation of section 187. However, to allow the Board to locate and review these types of orders, the officer will include reference to "WCA 187(2)" in the "s Referenced" field for the order, in addition to any other sections of the Act or regulations referenced in the order.

Absence of express or implied intent not to comply

In the absence of an express or implied intent not to comply with the Act or the regulations, an officer should not write an order. Lack of knowledge by the person is not sufficient for a finding of a lack of intention to comply. If the person displays lack of knowledge, the prevention officer should point out the applicable sections of the Act and/or the regulations regarding the work activity. The discussion is to be recorded in the inspection text portion of the IR, or as a CR. This inspection text or CR may be referenced to provide evidence of prior knowledge if any future violations are identified.

There may be some situations where an order is necessary to ensure an employer or other person takes specific steps to address a hazard, even though there is no express or implied intent not to comply with the Act or the regulations. In such circumstances, the order may only be issued with the approval of the Vice President, Prevention Services.

G-D12-187-3 Protection of privacy in inspection reports

Issued December 21, 2009

Regulatory excerpts
See Sections 156 and 187 of the Workers Compensation Act ("Act").

Purpose of guideline
The purpose of this guideline is to advise about the correct approach to including information in an inspection report ("IR") which is subject to the Freedom of Information and Protection of Privacy Act ("FIPPA").

Background
FIPPA came into force in October 1993 and applies to all provincial ministries, Crown corporations, agencies, commissions, and boards, including WorkSafeBC. FIPPA governs how WorkSafeBC collects, uses, and discloses information. In particular, FIPPA compels WorkSafeBC to protect personal information.

Personal information in IRs
The name or other identifying personal information about a worker should not be included in an IR or in any other records that are available to the public upon request to WorkSafeBC (Prevention Records). Personal information is any recorded information about an identifiable individual other than business contact information. The following are some examples of personal information that should not be disclosed in an IR about an identifiable individual:

  • Personal contact information (business contact information, including the person's job title, may be disclosed)
  • Age
  • Date of birth
  • Employment, occupational, or educational history
  • Medical information
  • Details about a worker's injury
  • Claim number or any other claim information
  • Driver's licence number, social insurance number, or any other similar personal identifier
  • Racial or ethnic origin
  • Sexual orientation
  • Marital status
  • Religious beliefs

Examples of how to include personal information when needed
There may be a small number of cases where an IR will need to contain some personal information in order to support the WorkSafeBC prevention officer's decision. Only information that is absolutely necessary to exercise WorkSafeBC's mandate should be included. In those situations, an attempt should be made to present the information in a way that minimizes its personal nature, and if possible, documented in a consultation record ("CR") linked to the IR.

Worker names:
The name of individuals should not be disclosed in an IR. If it is necessary to document the actions of more than one worker in an IR, the prevention officer may refer to them as "worker A," "worker B," etc.

The name of individuals accompanying the prevention officer as worker and employer representatives will be included in an IR in the field provided in FirmFile. The name of the representative should not be included in the IR text if an observed violation relates directly to that individual. If a violation does relate directly to a representative, the IR text will simply refer to "a worker." For example: "a worker was not wearing adequate hearing protection." The IR should not contain any additional personal information about that individual.

Age and employment experience:
In cases where the age or employment experience of a worker is relevant to the orders or observations in an IR, that information should be expressed as a range. For example, if the inspection relates to the orientation and training provided to a "young worker," the IR may state that the individual is under 25 years of age, rather than specifying the worker's exact age.

Where it is relevant to document that a particular worker has extensive experience in a particular occupation, the IR may note that the worker has "more than 20 years of experience," or simply "substantial years of experience." Similarly, in the case of a "new worker," the IR should not specify the exact amount of time the worker has been employed.

Medical information:
There are some situations where medical information will be relevant to the inspection or order. For example, impairment may have been a factor in an incident or affected the safety of a worksite. In that case, it would be appropriate for the IR to state that the worker was impaired. However, the IR should not reference specific toxicology results or what has caused the impairment (drugs, alcohol, medication, etc). Similarly, in cases where a worker is exposed to a contagion or blood-borne pathogen such as Hepatitis C or HIV, the IR should state that the worker was exposed to a "blood-borne pathogen" or an "immune compromising condition." However, the IR should not disclose that the exposure resulted in the worker being diagnosed with a specific medical condition.

Personal opinions:
Workers' personal opinions about their employers or health and safety matters should not be included in an IR. These matters should instead be documented in a CR.

Confidential business information in IRs
In addition to personal information, FIPPA also protects information that would reveal trade secrets, or commercial, financial, labour relations, scientific, or technical information. If that information is provided in confidence and disclosing it would harm the business interests of a firm, it should not be included in an IR.

Orders to workers
As stated in OHS Guideline G-D3-116, where an order to worker ("OtW") is issued as the result of a prevention officer's findings on an inspection, the applicable IR issued to the employer should reference the number of the OtW report. However, the name and other personal information about the worker related to the OtW should not be included in the IR.

G-D12-188(4)-1 Extension of Implementation Period

Issued May 15, 2002; Revised January 1, 2004; Editorial Revision October 14, 2004

Section 188(4) of the Workers Compensation Act states:

An officer of the board may exercise the authority of the board to make orders under this Part, subject to any restrictions or conditions established by the board.

Under Policy Item D2-111-1 of the Prevention Manual, the President and Chief Executive Officer has assigned to the Vice President, Worker and Employer Services Division, the authority to exercise the Board's power under section 188(4) to establish restrictions and conditions on the making of orders under Part 3 of the Act.

The Occupational Health and Safety ( OHSR) took effect on April 15, 1998. Many new requirements were enacted under the OHSR, and therefore, a period of one year was granted to comply with the new requirements. The initial one-year period was extended by the Vice President for some sections where there were practical difficulties with compliance by the affected industries. A number of these extensions were due to expire on December 31, 2003.

Where the Vice President has issued a directive to continue the extension for one or more sections of the OHSR , an OHS Guideline has been issued for the relevant sections.

Conditions and restrictions of directives
The following conditions and restrictions apply to the authority of officers of the Board to make orders under those directives in addition to any specific conditions or restrictions named in the guideline:

1. Prevention officers will not issue orders for violations of the sections of the OHSR that are the subject of a directive to extend the implementation period.

2. Orders may be issued for violations under other sections of the OHSR which may apply - including the other sections noted in some of the directives - and under Part 3 of the Act - including the general duties of employers, workers, supervisors, prime contractors, owners, and suppliers.

3. These conditions and restrictions apply to all WCB occupational health and safety related officers conducting inspections or investigations as well as to officers and management personnel considering orders and administrative penalties made pursuant to inspections or accident investigations.

G-D12-188(4)-2 Approvals, acceptances, authorizations, or permissions under the OHS Regulation

Issued June 1, 2006; Revised January 20, 2012

Regulatory excerpt
The Workers Compensation Act ("Act") states as follows:

82 (3) The board of directors may

(c) delegate in writing a power or duty of the board of directors to the president of the Board, or another officer of the Board, and may impose limitations or conditions on the delegate's exercise of a power or performance of a duty.

84.1(5) The president may delegate in writing any of the president's powers and duties to another officer of the Board or another person and may impose limitations or conditions on the delegate's exercise of a power or performance of a duty.

188(4) An officer of the Board may exercise the authority of the Board to make orders under this Part, subject to any restrictions or conditions established by the Board.

Purpose of guideline
The purpose of this guideline is to describe the assignment of duties and authorities under the OHS Regulation ("Regulation") to designated positions within the [Worker and Employer Services Division ("WES Division")], in particular those relating to approvals, acceptances, authorizations, or permissions required in the Regulation.

Introduction
There are many provisions of Part 3 of the Act and the Regulation that provide for actions to be carried out or decisions to be made by "the Board," (i.e., WorkSafeBC) or by "officers" of WorkSafeBC. These include specific types of decisions mandated by the Act, such as deciding on applications for variances from the Regulation, or deciding issues relating to discriminatory action, and also include decisions required in the Regulation where something must be approved, accepted, authorized, or permitted by WorkSafeBC.

The Board of Directors has provided the President/Chief Executive Officer (CEO) the authority to exercise the powers and responsibilities described in Part 3 (other than those reserved to the Board of Directors), and has also provided the President/CEO the authority to assign these powers and responsibilities to other divisions, departments, categories of officers, or individual officers of WorkSafeBC. The President/CEO in turn has delegated a number of these powers and responsibilities to the Senior Vice President, Operations.

The Senior Vice President Operations has in turn issued a Delegation of Authority which sets out who within the WES Division may exercise a number of those authorities. The Delegation of Authority also sets out how decisions to approve, accept, authorize, or permit things on behalf of WorkSafeBC are to be made.

Where this document refers to an "officer," that term means persons appointed as officers whose functions primarily involve conducting inquiries, investigations or inspections, or making decisions or exercising powers under Part 3 of the Act. "Officers" include WES Division vice presidents, directors, assistant directors and managers.

Decisions in Part 3 of the Act:
The following table sets out the delegation of decision making authorities under Part 3 of the Act, in accordance with the President's Assignment of Authority and the Senior Vice President Operations' Assignment of Authority:

 

Section of Act Decision By whom
113(2)-(2.3) Varying or cancelling orders The person who made the order, or a person authorized to make that type of decision or order
113(5) Charging of costs President/CEO or in accordance with existing WorkSafeBC policy
114(1) Interjurisdictional Agreements Senior Vice President, Operations
150-153 Discriminatory Actions Director, Investigations
155 Health and Safety Summaries Vice President, Prevention Services or delegate
156(3) Disclosure in Public Interest Senior Vice President, Operations or Senior Vice President, Corporate Affairs
159, 163, 195 Establishing fees President/CEO
159, 163, 195 Certification, other than establishing fees Director responsible for Certification Services, or delegate
164- 170 Variances Director, Regulatory Practices, or delegate
180 Issuing Officer Credentials President/CEO
188(4) Restrictions on an officer's authority to issue orders Senior Vice President, Operations
191(4) Confirmation of Stop Work Order Senior Vice President, Operations, or Vice President, Prevention Services
160, 196, 73 Administrative Penalties and Claims Costs Levies Any officer
198 Approval of Application for Court Injunctions President/CEO
214(2) Approval of laying of information in respect of an offence President/CEO
223 Collection of Amounts owed to WorkSafeBC Senior Vice President, Operations and Chief Financial Officer, or General Counsel

 

The Act provides direct authority to conduct inspections, investigations and enquiries, and to undertake a number of enforcement actions to "officers." Which officers may exercise that authority in specific contexts is subject to management direction in accordance with s. 188(4) of the Act.

Decisions in the Regulation:
In addition to the decisions under the Act above, there are numerous provisions in the Regulation which require "the Board" approve, accept, authorize, or permit something.

The ability to make those decisions rests with WorkSafeBC officers. However, the ability of an officer to make a decision approving, accepting, authorizing, or permitting something is restricted by the Delegation of Authority by the Senior Vice President, Operations, issued under the authority of s. 188(4) of the Act. This document sets out which officer may make which types of decisions.

There are five basic categories of "officers" who may make decisions with respect to approvals, acceptances, authorizations, or permissions under the Regulation. These are:

  1. Director of Regulatory Practices, or designated alternate
  2. Director of Regulatory Practices, who has described compliance in a guideline, and compliance may then be evaluated by a WorkSafeBC prevention officer
  3. WES Prevention regional managers and prevention officers
  4. Director or Manager of Prevention and Occupational Disease Initiatives
  5. Director responsible for Certification Services

These are further described below.

1. Authority under the Regulation that may be exercised only by the Director of Regulatory Practices or their designated alternate

The Director of Regulatory Practices has designated the position of Senior Prevention Adviser, Regulatory Practices, to exercise authority in the areas listed below. The decision will be issued in a decision letter. Workplace parties must request and obtain a decision letter for the following decisions before proceeding:

General Grant approval, acceptance, authorization, or permission except as otherwise specified in this guideline
4.4(2) Determine alternative publications, codes, standards, practices, procedures, or rules acceptable to WorkSafeBC except as otherwise specified in this guideline
7.18(2) Apply Division 3 (or parts thereof) to medical or dental radiation received by a patient, or to natural background radiation
7.22 Exempt an employer from the requirements of monitoring exposure to ionizing radiation (providing and ensuring workers' proper use of personal dosimeters)
9.1 Determine excluded confined spaces (in conjunction with WorkSafeBC Exclusions Committee)
14.14(h) Specify other hoisting equipment requiring records of inspection and maintenance
16.13(6) Exempt mobile equipment from braking requirements and specify any necessary conditions

This authority is in addition to the authority to issue variance decisions under sections 164 through 170, as described above.

As noted under "General," unless this guideline sets out otherwise, all decisions relating to approvals, acceptances, authorizations, or permissions must be decided in advance by the Director of Regulatory Practices, or designated alternate.

2. Authority under the Regulation that may be exercised by the Director of Regulatory Practices, who has described compliance in a guideline

In some situations, the Director of Regulatory Practices will have determined that issuing specific decisions relating to approvals, acceptances, authorizations, or permissions is not required by that department. In such situations, the Director of Regulatory Practices may issue a guideline setting out what is acceptable, and what workplace parties must do in order to be compliant. A prevention officer may then evaluate compliance with the elements set out in the guideline during a routine workplace inspection.

For example, a guideline may specify, "what elements safe work procedures must have in order to be "acceptable to the Board"." That is, WorkSafeBC accepts the alternative safe work procedures if they meet the criteria described in the guideline, and an employer that implements safe work procedures in accordance with the terms of the guideline may proceed without getting prior permission from WorkSafeBC. However, if criteria other than specified or referenced in a guideline are to be used, a request and submission to the Director of Regulatory Practices will be necessary.

This scenario only relates to where the Regulation requires that something be acceptable, approved, or determined (or other similar language) by WorkSafeBC, and does not relate to situations where guidelines are simply issued as guidance documents to assist in evaluating compliance.

The Director of Regulatory Practices has issued guidelines describing acceptable compliance for the following sections:

 

5.53(4) Accept occupational hygiene methods for workplace exposure monitoring and assessment (refer to G5.53-4)
6.8(2)Accept procedures for control, handling, or use of asbestos (refer to G6.8)
6.27Accept means of asbestos cleanup (refer to G6.27)
6.67 Accept manner of implementation of an effective health protection program in the handling of lead (refer to G6.67)
6.68(b) Accept manner of maintenance of health monitoring records in the handling of lead (refer to G6.68)
6.79 Accept manner of maintenance of health monitoring records in the handling of pesticides (refer to G6.79)
6.113 Accept a dust suppression system for a rock drill (refer to G6.113)
7.22 Accept a personal dosimeter for monitoring exposure to ionizing radiation (refer to G7.22)
7.29(1)(a) Accept measures and methods for heat stress assessment (refer to G7.29-2, G7.29-3, and G7.29.4)
7.30(2)(a) Accept heat stress administrative controls (refer to G7.30-2)
7.34(a) Accept measures and methods for cold stress assessment (refer to G7.34-1)
10.4(6) Approve effective means of lockout (refer to G10.4(6))
11.2(5) Where a fall arrest system is not practicable, accept work procedures (refer to G11.2(5)-1)
11.7(c) Accept manner of design, installation, and use of temporary horizontal lifeline system (refer to G11.7)
12.78 Accept manner of testing and inspection of automotive lifts (refer to G12.78)
13.29(2.1) Accept work procedures when lower limit travel devices are not practicable (refer to G13.29)
14.48(2) Accept standards of design, installation, operation, and maintenance of audio and video communication systems used in a hoisting operation (refer to G14.48(2)
16.18(1) Accept standard for operating controls for mobile equipment (refer to G16.18)
17.10(1)(a) Accept design and construction of vehicles (refer to G17.10)
19.16(2)(a) Accept written safe work procedures if it is not practicable to completely isolate high voltage electrical equipment (refer to G19.16-1)
19.27(1)(b) Determine whether re-routing, de-energizing, or guarding is practicable when working close to energized high voltage equipment and conductors (refer to G19.27)
19.34(5) Accept insulated tools when tree pruning or falling near energized conductors (refer to G19.34(5))
20.13(3.1) Accept control measures re loads on thrust-out crane loading platforms (refer to G20.13(3.1))
26.16(4)(b) Accept written safe work procedures re use of logging equipment on steep slopes (refer to G26.16)
26.41(1)(b) Accept manner of positioning guylines for a mobile yarder (refer to G26.41)
26.65(4)(b) Accept manner of installation of logging truck barrier (refer to G26.65(4)(b))

3. Authority under Regulation that may be exercised by regional prevention managers and prevention officers

Regional prevention managers and prevention officers may exercise authority for determinations under the following sections. The prevention officer will consult with other subject matter experts as necessary and will consult any guidelines and other WorkSafeBC publications necessary for assistance with the decision-making process. The prevention officer will record the decision in the inspection text of an inspection report.

9.22(1) Accept alternative measures under section 9.22(1) for municipal sewage systems (refer to G9.22-2)
9.29(2) Prescribe any additional precautions regarding inerting a confined space (refer to G9.29)

This authority is in addition to the authority connected to undertaking inspections and investigations and undertaking enforcement actions under sections 179, 187, 190, and 191, and related sections of the Act.

In the event that the regional prevention manager or prevention officer is unable to exercise the authority due to extraordinary circumstances (because the issue has province-wide implications or the matter is unusually complex), the Director of Regulatory Practices or designate will exercise the authority.

4. Authority under the Regulation that may be exercised only by the Director or Manager of Prevention and Occupational Disease Initiatives, or their respective designated alternates

7.3(2)(a) Determine acceptable alternative standards for noise exposure measurement
7.7(1)(c) Determine acceptable alternative types or standards of hearing protection
7.8(2) Determine who is authorized to conduct hearing tests

5. Authority under the Regulation that may be exercised only by the Director of Prevention Emerging Issues or the Manager of Certification Services, or their respective designated alternates

General Determine the courses or programs of instruction, education, or training (or training standards) that are acceptable to, or approved by, WorkSafeBC where exercise of such authority is referenced in the Regulation
3.16(1.1) Determine ambulance service acceptable to WorkSafeBC under Schedule 3-A
14.34.1(a) Determine who is a person acceptable to WorkSafeBC to issue crane operator's certificates
21.25(b)(v) Grant prior permission regarding attendance at explosive and detonator containers (refer to G21.25)
21.63 Accept an instrument for testing electrical circuits
21.69(2),(3) Determine appropriate circumstances and acceptable alternative procedures (alternative warning procedures in blasting)
21.85(1) Accept work procedures for placing explosive charges
21.85(4) Approve changes to blasting procedures
22.73(1) Approve the underground storage of explosives
22.75(b) Provide approval for the use of explosives (if not Fume Class 1 rating) in underground workings
24.26(3)(b) Provide written authorization to use mixed gases other than nitrox in diving operations

The Manager of Certification Services may communicate acceptable training by including his/her decision in a guideline. For example, guideline G18.4(1) describes the manner of training acceptable to WorkSafeBC for traffic control persons; guideline G26.21/ 26.22 describes the acceptable training standard for fallers; and guideline G24.26 describes training courses to achieve nitrox diving training to an acceptable standard.

This authority is in addition to the authority to issue decisions under sections 159, 163, and 195 of the Act, as described above.

G-D12-190 Orders to stop using or supplying unsafe equipment, etc.

Issued June 26, 2003; Editorial Revision June 2005; Editorial Revision April 9, 2009

Section 190 of the Workers Compensation Act states:

(1) If the Board has reasonable grounds for believing that a thing that is being used or that may be used by a worker

(a) is not in safe operating condition, or

(b) does not comply with this Part or the regulations,

the Board may order that the thing is not to be used until the order is cancelled by the Board.

(2) If the Board has reasonable grounds for believing that a supplier is supplying a thing that

(a) is not in safe operating condition, or

(b) does not comply with this Part or the regulations,

the Board may order that supplier to stop supplying the thing until the order is cancelled by the Board.

(3) Despite section 188 (1), an order under this section may only be made in writing.

(4) The Board may cancel an order under this section only if it is satisfied that the thing in respect of which the order was made is safe and complies with this Part and the regulations.

This guideline discusses the application of section 190 of the Act. An order under section 190(1) will be issued on the employer of the worker using or who might use the unsafe or non-compliant thing, and/or the prime contractor if it is a multi-employer workplace. An order under section 190(2) will normally be issued on the supplier or owner of the unsafe or non-compliant thing. Generally an order under section 190 will only be considered if use of the unsafe or non-compliant thing, without correction, would present an immediate danger to workers.

An order under section 190 must be made in writing and will normally be done by an officer using an Inspection Report (IR). However, the order may also be issued through delivery of a letter from the Board to the employer, supplier, or owner, as applicable. At this stage, there is no violation of section 190.

The order should cite section 190 as the authority under which the officer is ordering that the thing not be used [section 190(1)], or that the supplier or owner stop supplying the thing [section 190(2)]. The order must describe the circumstances rendering the thing not in safe operating condition and/or how the thing does not comply with the Act or the regulations. There will likely be a violation of one or more sections of the Act or regulations, and the IR containing the order to stop use or supply should contain the order(s) related to such non-compliance. Orders for any other violations observed but not part of the conditions related to the order to stop use or supply should be issued on a separate IR.

If the officer sees a need to increase the visibility of the order to stop use or supply, a placard using Form 190(1), "Order to Stop Use," or Form 190(2), "Order to Stop Supplying," may be created and posted. These forms can be found at the end of this Guideline. If the officer wants the order and placard to be posted and maintained posted, an appropriate order citing section 187(2)(f) of the Act should be included as part of the IR or letter containing the order to stop use or supply. Alternatively, the officer can personally post the order under the authority provided by section 193.

An order issued by an officer under the authority of section 190 is not "time limited". (An order to stop work issued by an officer under section 191 has to be confirmed in writing by the Board if it needs to remain in effect for longer than 72 hours.) The order to stop use or supply stays in effect until it has been cancelled in accordance with section 190(4). Whenever an order to stop use or supply is issued, the officer must inform the regional manager as soon as practicable, and the regional manager must inform the director of the applicable region.

The Board may cancel an order issued under section 190 only if it is satisfied the thing in respect of which the order was made is safe and complies with the Act and the regulations. The decision to cancel such an order must be made by an officer of the Board, once the officer has determined these conditions have been met. The officer should cancel the order by issuing a follow-up IR or letter to the employer, supplier, or owner, as applicable. The IR or letter should state compliance with section 190(4) has been achieved. If a placard was issued and posted as a result of an officer's order the officer must remove it or instruct the employer or supplier to remove it as part of the process to cancel the order.

Note when an order to stop use or supply is issued under the authority of section 190 of the Act, the provisions of section 192 may apply if workers are temporarily laid off, or assigned to alternative work. Section 192 of the Act states

(1) If, as a result of an order made under section 190 or 191, a worker is temporarily laid off, the employer must pay the worker the amount the worker would have earned or, if this cannot be readily determined, the amount the worker would have been likely to earn,

(a) for the day on which the order came into effect and for the next 3 working days during which the order is in effect, or

(b) for a longer period, if this is provided under a collective agreement.

(2) Nothing in this section prevents workers affected by an order referred to in subsection (1) from being assigned to reasonable alternative work during the time that the order is in effect.

Section 193 of the Act states

(1) An officer may

(a) post at a workplace, or

(b) attach to any product, tool, equipment, machine, device or other thing,

a copy of an order or a notice related to that order.

(2) An order posted or attached under subsection (1) must not be removed except

(a) in accordance with the order, or

(b) by an officer or a person authorized by an officer.

Order to Stop Use

Order to Stop Supplying

G-D12-191 Order to stop work

Issued June 26, 2003; Editorial Revision June 2005

Section 191 of the Workers Compensation Act states:

(1) If the Board has reasonable grounds for believing that an immediate danger exists that would likely result in serious injury, serious illness or death to a worker, the Board may order

(a) that work at the workplace or any part of the workplace stop until the order to stop work is cancelled by the Board, and

(b) if the Board considers this is necessary, that the workplace or any part of the workplace be cleared of persons and isolated by barricades, fencing or any other means suitable to prevent access to the area until the danger is removed.

(2) If an order is made under subsection (1)(b), an employer, supervisor or other person must not require or permit a worker to enter the workplace or part of the workplace that is the subject of the order, except for the purpose of doing work that is necessary or required to remove the danger or the hazard and only if the worker

(a) is protected from the danger or the hazard, or

(b) is qualified and properly instructed in how to remedy the unsafe condition with minimum risk to the worker's own health or safety.

(3) Despite section 188 (1), an order under this section

(a) may only be made in writing, and

(b) must be served on the employer, supervisor or other person having apparent supervision of the work or the workplace.

(4) An order under this section expires 72 hours after it is made, unless the order has been confirmed in writing by the Board.

This guideline discusses the process for issuing an order under section 191 of the Act. An officer of the Board may decide to issue an order to stop work under section 191 upon observing or determining that conditions exist that pose an immediate danger to workers and are likely to result in serious injury, serious illness, or death to a worker. If necessary, the officer may order that the workplace or any part of the workplace involved in an order to stop work be cleared of persons and isolated by barricades, fencing, or any other means suitable to prevent access to the area until the danger is removed.

When to issue an order under section 191

When an officer observes a condition that poses an immediate danger of death, serious injury, or serious illness to a worker, the officer must immediately notify the most senior representative of the employer in the vicinity of the immediate danger. In some cases this may be the worker(s) exposed to the immediate danger, if no supervisor or other management representative of the employer is readily present. The employer's representative must be advised of the officer's findings of immediate danger and verbally directed to take immediate measures to remove workers from exposure to the immediate danger. In most circumstances this will require the employer's representative to stop work in the area where the danger exists, and have workers leave the area in a safe and orderly manner.

Prevention Manual Item D12-191-1 states that "in considering whether there are reasonable grounds for an [order to stop work], the officer will consider his or her own knowledge and experience regarding the situation along with any advice and assistance that may be immediately available." Such advice and assistance would typically be obtained by contacting a fellow officer, subject matter expert (SME) resource officer, engineer, regional manager, or senior manager as appropriate. Item D12-191-1 further states that "to avoid the potential for workers to continue to be exposed to an immediate danger, an officer might need to make a decision on the spot without doing the full inquiries that might otherwise be desirable." Whether there are reasonable grounds for making an order under section 191 is a matter of fact in each case. Each situation will be different and will present its own circumstances for the officer to consider.

A situation that would require a work stoppage for corrective action to be implemented may not necessarily require an order to stop work under section 191. If a verbal directive followed by a written order and a brief work stoppage can readily correct the situation, it may be appropriate to only write specific orders for the violation, citing the applicable section of the regulation. In such circumstances, typically the work stoppage would be brief and the workers can readily be removed from exposure to the immediate danger while the employer takes prompt corrective action to eliminate the immediate danger, resulting in compliance. For example, if an officer sees a small section of scaffolding being used without all the required components in place, the officer would issue an order with the text in the corrective part of the order stating something similar to "No work shall be conducted from this scaffold until..." In essence, work has been halted and will resume when the necessary corrective actions are implemented.

If the scope of the situation is such that the violation cannot be simply or readily corrected and if workers must be removed from immediate danger, an order to stop work under section 191 is appropriate. Typically, immediate corrective action could not result in compliance because the work needs to be stopped for an extended period of time to explore corrective options and/or because the corrective action affects a large area. In this case, the officer wants verification of controls and safeguards before work commences and before the order to stop work is cancelled. The use of section 191 with an order to stop work puts the officer and the Board in control of the situation by requiring notification when corrective action has been taken. For example, if deficient scaffolding surrounds the entire building, not just a small section of it, an order to stop work under section 191 may be more appropriate, as it would take considerable time to correct the deficiencies.

In the following example, workers are exposed to immediate danger and the corrective measures may take some time. If an officer encounters an asbestos removal operation being conducted without the proper safeguards in place, the officer would cite section 191 and immediately get the workers removed from the area where there is an immediate danger. Work would then be stopped until safe work procedures that establish the necessary safeguards are developed, reviewed, and then implemented.

When an order to stop work is issued under the authority of section 191 of the Act, workers are protected from economic loss for a period of time. The provisions of section 192 may apply if workers are temporarily laid off or assigned to alternative work. This is not the case with an order stopping work briefly for a violation, citing a specific section of the OHS Regulation.

Section 192 states:

(1) If, as a result of an order made under section 190 or 191, a worker is temporarily laid off, the employer must pay the worker the amount the worker would have earned or, if this cannot be readily determined, the amount the worker would have been likely to earn,

(a) for the day on which the order came into effect and for the next 3 working days during which the order is in effect, or

(b) for a longer period, if this is provided under a collective agreement.

(2) Nothing in this section prevents workers affected by an order referred to in subsection (1) from being assigned to reasonable alternative work during the time that the order is in effect.

Order confirmed in writing

Since section 191(3) requires that an order to stop work under section 191 may only be made in writing, the officer must complete the process of issuing the order to stop work by promptly issuing an Inspection Report (IR) citing section 191 of the Act. At this stage, there is no violation of section 191. Section 191 must be cited in the order as the authority under which the officer is ordering work to stop. The order to stop work should describe the circumstances deemed to be the immediate danger, and the extent of the stop work order. The items identified in the order to stop work should deal exclusively with the hazardous condition(s) that constitute the immediate danger. When an immediate danger exists, there will be a violation of one or more sections of the Act or regulations. The IR containing the order to stop work should only contain the order(s) related to such non-compliance. Orders for any other violations observed but not part of the conditions related to the immediate danger should be issued to the employer on a separate IR.

An order to stop work issued by an officer will expire after 72 hours unless the order is confirmed in writing by the Board. The authority of the Board under section 191(4) to confirm the officer's order to stop work beyond the 72 hours has been delegated to the vice-president, Prevention.

Posting the order to stop work

An IR with an order to stop work under section 191 must be served on the employer, supervisor, or other person having apparent charge or supervision at the workplace affected by the order. The IR should be posted at the workplace in the area or on the thing affected by the order to stop work. The officer may personally post the order as provided for by section 193.

Section 193 of the Act states:

(1) An officer may

(a) post at a workplace, or

(b) attach to any product, tool, equipment, machine, device or other thing,

a copy of an order or a notice related to that order.

(2) An order posted or attached under subsection (1) must not be removed except

(a) in accordance with the order, or

(b) by an officer or a person authorized by an officer.

Alternatively, section 187(2)(f) of the Act provides that the officer may make an order "requiring a person to post or attach a copy of the order, or other information, as directed by the order or by an officer". Thus the officer can order the employer to post a copy of the IR in a manner where it can be easily observed near the area or equipment affected by the order to stop work. The order should also instruct the employer not to remove the IR until the order to stop work has been cancelled. If posting of the IR is not practicable due to the nature of the work site, the officer must direct the employer's representative to take adequate measures to ensure the affected workers are informed of the IR and order. The employer's representative should also take adequate measures to ensure any other persons who could reasonably be expected to go into the hazard area are informed of the order to stop work. Form 191(3) at the end of this Guideline may be used to generate a placard for posting to increase the "visibility" of the order.

Extending the order beyond 72 hours
The officer issuing the order to stop work must inform his or her regional manager, or designated acting regional manager (or the director of the applicable region, if the regional manager is not available) as soon as possible after an order citing section 191 has been issued. If the officer believes the reason for the order to stop work is not likely to be remedied within 72 hours to allow the order to be cancelled, the officer must so advise the regional manager. The regional manager must then make arrangements to have the order to stop work confirmed in writing by the vice-president, Worker and Employer Services Division (or other person designated by the vice-president to undertake this function on behalf of the Board.) Form 191(4) at the end of this Guideline may be used to develop written confirmation to extend the order to stop work beyond 72 hours. This form (or other written confirmation) will normally be prepared by or in consultation with the office of the director of the applicable region using information provided by the officer who initiated the order to stop work.

If the vice-president (or designate) agrees to confirm the order to stop work, the confirmation order will be signed by the vice-president and returned to the officer as soon as possible. On returning to the workplace, the officer should see if the conditions that created the immediate danger have been corrected. If they have not been corrected, the officer must issue another IR citing section 191(4) of the Act and serve the IR and the confirmation order on the employer. The text of the order on the IR should indicate that a confirmation in writing from the Board was served at the time with the follow-up inspection. Normally a decision code of "Z"; indicating continued non-compliance would be assigned to the confirmation order on this IR.

Cancelling the order to stop work

When the officer has been notified by the employer that corrective action has been carried out to eliminate the immediate danger to workers, or when the officer believes that this correction action has been done, the officer must re-inspect the workplace as soon as practicable. If the officer is satisfied the corrective action that has taken place has resolved the condition of immediate danger, another IR will be issued, citing section 191 and referring back to the previous IRs, stating that the order to stop work is cancelled. Normally a decision code of "C" will be assigned to this order. If an order was issued regarding posting of the IR and/or any placards, the officer should also issue an order that will authorize the employer to remove the IR and any placards related to the order to stop work from the area affected by the order and replace it with the IR providing notice of the cancellation.

Forms

At the end of this Guideline are two optional forms that may be used to generate placards for posting.

Form 191(3), "Order to Stop Work" is for an officer to use when necessary to highlight the order to stop work. The use of this form is optional, as the actual order to stop work is the relevant order(s) contained in the IR.

Form 191(4), "Confirmation of an Order to Stop Work," may be used to confirm the order beyond 72 hours (or another form of written confirmation may be used).

Schematic of decision logic for application of section 191

The following schematic shows the decision logic in the application of section 191 of the Workers Compensation Act.

Schematic of Decision Logic

 

Order to Stop Work

 

Confirmation by the Board of An Order to Stop Work

G-D12-196-2 OHS penalties - High risk violations New Item

Preliminary Issue December 1, 2014

Regulatory excerpt
Section 196(1) of the Workers Compensation Act ("Act") states:

(1) The Board may, by order, impose an administrative penalty on an employer under this section if it considers that

(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,

(b) the employer has not complied with this Part, the regulations or an applicable order, or

(c) the employer's workplace or working conditions are not safe.

Prevention Policy D12-196-2 states:

For ease of reference, in this policy:

(a) "high risk" refers to high risk of serious injury, serious illness or death; and

(b) "Regulation" refers to the Occupational Health and Safety Regulation.

This policy sets out how high risk is determined for the policies regarding occupational health and safety related penalties and warning letters. Violations in the six circumstances on the list of Designated High Risk Violations (A) are high risk. Determining whether other violations are high risk will depend on the High Risk Criteria (B).

A. Designated High Risk Violations

Violations of the Workers Compensation Act ("Act") or Regulation relating to the following circumstances are high risk:

  1. Entry into an excavation over 1.2 m (4 feet) deep contrary to the requirements of the Regulation.
  2. Work at over 3m (10 feet) without an effective fall protection system.
  3. Entry into a confined space without pre-entry testing and inspection to verify that the required precautions have been effective at controlling the identified hazards.
  4. Causing work disturbing material containing asbestos, or potentially containing asbestos, to be performed without necessary precautions to protect workers.
  5. Hand falling or bucking without necessary precautions to protect workers from the tree that is being felled or bucked, or other affected trees.
    Explanatory note: OHS Guideline G-D12-196-2 includes examples of circumstances where this would apply.
  6. Work in the vicinity of potentially combustible dust without the necessary precautions to protect workers.


B. High Risk Criteria

When violations have occurred in circumstances that are not listed in A above, WorkSafeBC will determine whether the circumstances are high risk in each case on the basis of the available evidence concerning:

  1. the likelihood of an incident or exposure occurring; and
  2. the likely seriousness of any injury or illness that could result if that incident or exposure occurs.
    Explanatory note: OHS Guideline G-D12-196-2 provides a list of violations that are likely to be high risk when applying the high risk criteria. Even though a violation is on that list, it must still be analyzed using the High Risk Criteria (B) in this policy, since not every instance will be high risk.


Purpose of guideline
The purpose of this guideline is to provide information on the application of the Prevention Policy D12-196-2 ("Policy") and specific examples to assist in clarifying WorkSafeBC's approach to determining whether a violation is high risk.

Background
High risk violations are those violations of the Act or OHS Regulation ("Regulation") which present a high risk of serious injury, serious illness, or death. The Policy provides for two categories of high risk violations. The first category contains six "designated high risk violations". These high risk violations are those that regularly result in fatalities, serious injuries, or serious illness and give a worker little or no opportunity to avoid or minimize severe injury, death, or occupational disease. The second category comprises other violations that are not on the list of designated high risk violations but may also present a high risk of serious injury, serious illness, or death based on criteria set out in the Policy.

Applying the high risk policy
To determine whether a violation is considered high risk, first determine whether it is on the list of designated high risk violations (A) in the Policy. If the violation is not a designated high risk violation, then apply the high risk criteria in (B) to determine whether the violation would be considered high risk.

Designated high risk violations (A): Hand falling or bucking
The six designated high risk violations are listed in the Policy excerpt above. Item 5 in that list is hand falling or bucking practices without necessary precautions to protect workers from the tree that is being felled or bucked, or other affected trees. The following are examples of hand falling and bucking violations which would be considered to be high risk violations (the applicable section of the Regulation is provided in brackets):

(a) Failing to prepare a safe escape route before falling or bucking begins [section 26.24(2)]

(b) Failing to move to a predetermined position, at least 3 m (10 feet) away from the base of the tree where possible, and take cover, when the tree starts to fall [section 26.24(7)]

(c) Failing to use the following proper falling procedures [section 26.24(5)]

(i) sufficient undercut

(ii) undercut must be complete and cleaned out

(iii) sufficient holding wood

(iv) backcut must be higher than undercut to provide step on the stump

(v) wedging tools must be immediately available and unless the tree has a pronounced favourable lean, wedges must be set

(d) Failing to fall dangerous trees before performing work in the area made hazardous by the dangerous tree [section 26.11, section 26.26(4)]

(e) Using a tree to cause another partially cut tree to fall in succession, except to overcome a specific falling difficulty and done in accordance with the Regulation [section 26.24(6)]

(f) Leaving partially cut trees, unless done in accordance with the Regulation [section 26.25]

(g) Brushing of standing trees where brushing can be avoided [section 26.24(5.1)]

Section 26.23(1) of the Regulation states, in part:

"brushing" means the striking of a standing tree by a tree being felled if the strike is a direct blow or a glancing blow of sufficient force to cause one or more branches to break at or near the stem of the standing tree

(h) Working within a 2 tree-length radius of a tree being felled [section 26.24(1)]

The above list is not exhaustive and there may be additional hand falling and bucking violations, not listed, that are also high risk violations.

The BC Faller Training Standard provides additional information on best practices for complying with several of the requirements listed above.

Applying the high risk criteria (B)
Where a violation is not on the list of designated high risk violations (A), the Policy sets out two criteria for determining whether a violation is high risk, as follows:

  1. The likelihood of an incident or exposure occurring; and
  2. The likely seriousness of any injury or illness that could result if the incident or exposure occurs

When considering the likelihood of an incident or exposure occurring, some of the factors that may be considered are

  • The number of workers exposed
  • The potential hazards that are present in the particular work or task being performed
  • Whether the hazard has been effectively controlled (ineffective controls usually result in one or more violation orders under the Regulation or Act)
  • The circumstances that increase the likelihood of a worker coming into contact with the hazard

When considering the likely seriousness of any injury or illness, some of the factors that may be considered are

  • Whether, in circumstances where an incident or exposure occurs, any resulting injury or illness is likely to be serious, or even fatal, due to the nature of the violation.
  • Additional conditions or circumstances at the workplace that would increase the potential outcome of a serious injury, serious illness, or death once the worker is exposed to the hazard.

Examples of violations that would likely be determined high risk
The Policy refers to the following list which contains violations that will likely be considered to be high risk when applying the two high risk criteria in (B) set out above. Even though an item is on this list, it must be analyzed using the two high risk criteria in the Policy, as not every instance of the following violations will be high risk, depending on the circumstances. The list is provided to assist workers, employers, and WorkSafeBC prevention officers in identifying potential high risk violations but is not an exhaustive list.

(a) Exposure to electrocution hazards (including violations related to the limits of approach)

(b) Failure to adequately identify, assess, and control the risk of violence in the workplace where the failure presents a high likelihood of serious injury or death

(c) Unsafe use, handling, or storage of flammable or combustible, oxidizing substances

(d) Unsafe explosives handling and blasting practices

(e) Ineffective de-energization, lockout, or safeguarding

(f) Exposure, without effective protection, to:

i. substances designated as ACGIH A1 or A2 carcinogen, or IARC 1 or 2A carcinogen

ii. biohazards and infectious diseases (hazardous substances Risk Group 3 and 4 (section 5.1.1 of the Regulation))

iii. ACGIH reproductive toxins and ACGIH sensitizers

iv. ionizing radiation (e.g., x-rays) and Class 4 lasers

v. the following items classified under the Workplace Hazardous Materials Information System (WHMIS) as:

(1) Class D, Division 1: Materials Causing Immediate and Serious Toxic Effects

(2) Class D, Division 2: Materials Causing Other Toxic Effects

(3) Class E: Corrosive material

For any of items i to v above, where IDLH (Immediately Dangerous to Life or Health) concentrations have been established, "exposure" refers to exposure at or above the IDLH concentration. Where ALARA (As Low as Reasonably Achievable) principles apply, "exposure" refers to exposure at or above the exposure limit provided for by the Regulation.

(g) Lack of operator protective structures on mobile equipment (e.g., ROPS and FOPS)

(h) Exposure to the risk of being struck by or crushed by material, objects, or mobile equipment

(i) Unsafe transportation of workers

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Disclaimer: The Worker and Employer Services Division issues Guidelines to help with the application and interpretation of sections of the Occupational Health and Safety Regulation and with divisions of the Workers Compensation Act that relate to health and safety. Guidelines are not intended to provide exclusive interpretations but to assist with compliance. The Workers' Compensation Board of B.C. ("WorkSafeBC") does not warrant the accuracy or the completeness of the online version of the Guidelines and neither WorkSafeBC nor its board of directors, employees or agents shall be liable to any persons for any loss or damage of any nature, whether arising out of negligence or otherwise, which may be occasioned as a result of the use of the online version of the Guidelines.