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Guidelines Workers Compensation Act

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Guidelines Workers Compensation Act Part 3 Division 12 - Enforcement

G-D12-186.1-1 Compliance agreements New Item

Issued September 15, 2015; Revised January 1, 2016

Regulatory excerpt
Section 186.1 of the Workers Compensation Act ("Act") states:

(1) The Board may enter into an agreement with an employer if the Board considers that

(a) the employer has contravened, or failed to comply with, a provision of this Part or the regulations,

(b) the employer has not contravened, or not failed to comply with, the same provision described in paragraph (a) within the 12 month period immediately preceding the contravention or failure as set out in that paragraph,

(c) the health or safety of workers, for which the employer has responsibilities under this Act, is not at immediate risk, and

(d) entering into the agreement is appropriate in the circumstances.

(2) An agreement entered into under subsection (1)

(a) must be in writing,

(b) must describe one or more actions the employer agrees to take, which may include one or more expenditures the employer agrees to make, to remedy the employer's contravention or failure as setout in subsection (1)(a) or the adverse effects that resulted from that contravention or failure,

(c) must set out the time frame within which the employer, with respect to each action described under paragraph (b) of this subsection, agrees to

(i) take the action, and

(ii) report to the Board on the action taken,

(d) must specify the date the agreement ends,

(e) must set out the required manner, form and content of the report referred to in paragraph (c)(ii) of this subsection, and

(f) may, subject to subsection (4), be amended if agreed to by the Board and the employer.

(3) The employer must, as soon as practicable after

(a) entering into an agreement under subsection (1),

(i) provide a copy of the agreement to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post a copy of the agreement at the workplace, and

(b) reporting to the Board under subsection (2) (c) (ii),

(i) provide a copy of the report to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post a copy of the report at the workplace.

(4) The Board must rescind an agreement entered into under subsection (1) if the Board considers that

(a) the employer has failed to

(i) take any of the actions described under subsection (2) (b) within the time frame set out for the action in subsection (2)(c)(i), or

(ii) report to the Board within the time frame set out in subsection (2)(c)(ii),

(b) the employer intentionally provided false or misleading information in relation to the agreement, or

(c) the health or safety of workers is at immediate risk, based on information received by the Board after the agreement was entered into.

(5) The Board may rescind an agreement entered into under subsection (1) if the Board considers that the agreement no longer adequately protects the health or safety of workers.

(6) A rescission of an agreement under subsection (4) or (5) takes effect immediately despite the employer not having received notice.

(7) As soon as practicable after rescinding an agreement under subsection (4) or (5), the Board must

(a) make reasonable efforts to provide verbal notice of the rescission to the employer, and

(b) send written notice of the rescission to the employer.

(8) Section 221 (4) to (6) does not apply to the sending of written notice under subsection (7)(b).

(9) The employer must, as soon as practicable after receiving written notice under subsection (7)(b),

(a) provide a copy of the written notice to the joint committee or worker health and safety representative, as applicable, or

(b) if there is no joint committee or worker health and safety representative, post a copy of the written notice at the workplace.

Purpose of guideline
The purpose of this guideline is to provide guidance on the issuance of compliance agreements under section 186.1 of the Act.

Background
Division 12 of Part 3 of the Act sets out WorkSafeBC's authority to use a variety of tools to ensure compliance with the Act and OHS Regulation ("Regulation"). One of those tools is the compliance agreement. Instead of issuing an order, WorkSafeBC may, in certain circumstances, enter into a compliance agreement in which a responsive employer voluntarily agrees to correct occupational health and safety ("OHS") violations within a short specified timeframe, and report back by a particular date. While the violations documented in a compliance agreement form part of the employer's compliance history, the successful completion of compliance agreements may contribute to a positive evaluation of an employer's overall compliance with OHS requirements.

Some examples of violations that may be appropriately addressed by a compliance agreement, depending on the circumstances, include failure to ensure that:

  • Safety data sheets are up to date.
  • Joint committee meeting reports and member names are posted.
  • Minor deficiencies in equipment or a first aid kit are addressed.
  • Housekeeping issues are addressed.

When a compliance agreement will not be offered
Not all violations can be appropriately addressed by a compliance agreement. Policy Item D12-186.1-1 ("the Policy") provides that WorkSafeBC will not enter into a compliance agreement with an employer under the following circumstances:

  • The violation puts worker health or safety at immediate risk (in other words, it creates a likelihood of injury, illness, or death if not immediately remedied).
  • The violation is high risk as defined in Policy Item D12-196-2.
  • The employer has violated, within the last 12 months, the same provision of the Act or Regulation at any location or workplace. For example, if the employer violated the same provision of the Regulation on December 2 in its Prince George location and then again on October 12 of the following year in its Vancouver location, no compliance agreement would be offered for the October violation.
  • A previous compliance agreement with the employer (under the same or a different provision of the Act or Regulation) was cancelled in the last three years due to the fault of the employer. When determining whether the cancellation was due to the employer's fault, the WorkSafeBC prevention officer will consider all relevant circumstances, including whether the employer did everything reasonably possible within its control to comply with the agreement.

When a compliance agreement may be appropriate
The compliance agreement is not an automatic first step in the enforcement process. As stated in the Policy, WorkSafeBC enters into compliance agreements at its own discretion, after considering the likelihood of an incident or exposure occurring because of the violation and the likely seriousness of any injury or illness that could result. Also, a compliance agreement can only be considered if WorkSafeBC believes that it is appropriate in the circumstances and the employer will likely fulfill its obligations under the agreement.

Some of the factors that must be considered when deciding whether a compliance agreement is appropriate in the circumstances include the following:

  • The employer's compliance history: This includes the nature, number, and frequency of past violations.
  • The effectiveness of the employer's overall approach to managing OHS: The employer must have an effective program for preventing OHS violations. If the employer displays a general lack of commitment to OHS, a compliance agreement will not be the appropriate tool. For example, if during the inspection the prevention officer observes one or more violations that may qualify for a compliance agreement and one high-risk violation, no compliance agreement will be offered to remedy the qualifying violation(s) due to the presence of a high-risk violation.
  • The employer's willingness to enter into the agreement: Employers enter into compliance agreements voluntarily. An employer may express an unwillingness to enter into a compliance agreement in a number of ways. For example, the employer may inform the prevention officer that they are not willing to do so. Alternatively, the employer may claim an inability to comply because of lack of knowledge, economics (such as saying they cannot afford to comply), impracticality of compliance, or related arguments. If the employer is not willing to enter into the agreement, the prevention officer will issue an order where appropriate.
  • Information provided by workers and union representatives: This information will be weighed together with information received from the employer, as well as the prevention officer's own observations.

Requirements of compliance agreements
The Policy outlines the requirements of a compliance agreement. It must:

  • Be between WorkSafeBC and an employer. Compliance agreements cannot be entered into with workers, independent operators, or other persons.
  • Be in writing.
  • Be signed by an appropriate employer representative who has the necessary authority to enter into agreements on behalf of the employer. It is the employer's responsibility to identify the appropriate authorized representative. An electronic signature in the form of an emailed response is acceptable provided the identity and job title of the person signing is known, and the electronic signature is attached to, or associated with, the compliance agreement.
  • Describe the corrective actions the employer agrees to take.
  • Provide the action deadline, report deadline, and the date the agreement ends (refer to "Compliance agreement deadlines" for more information).

In addition, the compliance agreement will describe the following:

  • The violation(s) that will be addressed by the compliance agreement.
  • Where applicable, interim measures that will be taken until compliance is achieved.
  • The manner, format, and content of the compliance agreement report.
  • The posting and distribution requirements.

Compliance agreement deadlines
The action deadline is the date by which the employer must complete its corrective action(s). This timeframe will be mutually agreed upon by WorkSafeBC and the employer, and it must be reasonable. Generally, 14 days from the date of the violation will be considered to be reasonable, but the prevention officer will take into account all relevant factors. For example, if one of the corrective actions entails installing new equipment, the time it takes to supply the equipment will be taken into consideration. On the other hand, if a violation can reasonably be corrected within a shorter timeframe (e.g., seven days), the action deadline will be agreed upon accordingly. The corrective actions contained in a compliance agreement are intended to be completed as soon as reasonably possible.

The report deadline is a reasonable, mutually agreed-upon date by which the employer must report back to WorkSafeBC on corrective actions taken. It will typically be seven days following the action deadline. The prevention officer's assessment of whether the agreement has been complied with may include a review of documentation provided by the employer and/or a site inspection; this will be documented in writing.

The agreement end date will typically be the same date as the report deadline.

It is the employer's sole responsibility to meet the action and report deadlines. Failure to meet these deadlines will result in cancellation of the compliance agreement.

Amending a compliance agreement
While the compliance agreement is still in effect (i.e., it has not ended or been cancelled), WorkSafeBC and the employer can agree to an amendment in writing. No signature by the employer’s representative is required on an amendment.

As stated in the Policy, when determining whether an amendment is appropriate, the prevention officer will consider a number of factors on a case-by-case basis, including the employer's progress towards compliance.

In many cases, an amendment may simply consist of an extension of the action and/or report deadlines. These deadlines may be extended provided the request for an extension is made prior to the expiry of that particular deadline. WorkSafeBC does not have the discretion to extend a deadline that has been missed. Extensions of time must be reasonable and documented through an amended compliance agreement.

Cancelling a compliance agreement
The Policy provides that a compliance agreement will be cancelled by WorkSafeBC if:

  • The agreement no longer adequately protects the health and safety of workers.
  • The employer fails to complete its required actions by the action deadline.
  • The employer fails to meet its reporting obligations by the report deadline.
  • The employer intentionally provides false or misleading information in relation to the agreement.
  • The health and safety of workers is at immediate risk based on information received by WorkSafeBC after the agreement was entered into (in other words, there is a likelihood of injury, illness, or death if the situation is not immediately remedied).

While the cancellation takes effect immediately whether or not the employer receives notice, the prevention officer will send written notice to the employer and will also make reasonable efforts to provide verbal notice.

It should be noted that the cancellation of a compliance agreement due to the employer's fault will not result in the cancellation of other compliance agreements that may already be in effect.

Posting requirements
Compliance agreements require employers to post the following documents at the workplace:

  • Compliance agreements between the employer and WorkSafeBC.
  • Amended compliance agreements between the employer and WorkSafeBC.
  • Compliance agreement reports completed by the employer.
  • Notices of cancellation of compliance agreements provided by WorkSafeBC.

These documents will be posted for the period of time stipulated in the compliance agreement. The employer must also provide copies of the above documents to the joint health and safety committee or worker health and safety representative, if applicable, and to the union if the compliance agreement relates to a workplace where workers of the employer are represented by a union.

Issuance of orders
As set out in the Policy, if a compliance agreement is entered into, WorkSafeBC will not issue an order for any violation specifically described in it while that specific compliance agreement is in effect. Orders may be issued, however, on violations not described in the agreement even if they are under the same provision of the Act or Regulation. For example, if WorkSafeBC and the employer enter into a compliance agreement to have the tool rests on a particular bench grinder adjusted as required, that does not preclude the issuance of an order regarding the adjustment of the tool rests on any other bench grinders at the workplace, unless the scope of the compliance agreement specifies the other equipment.

If the employer satisfactorily completes the compliance agreement, WorkSafeBC will not retroactively issue an order for violations addressed by the agreement.

When a compliance agreement is cancelled for any of the reasons set out above, WorkSafeBC will, except in exceptional circumstances, issue orders for any of the outstanding violations specifically described in the agreement. An example of an exceptional circumstance may be where an employer has been unable to submit the report by the report deadline due to a power outage.

If a compliance agreement has been cancelled, but the violations are not outstanding (e.g., the report was submitted late but the violations have been corrected), orders will not be issued.

Review of a decision to issue a compliance agreement
A prevention officer's decision to enter into a compliance agreement, rather than issue an order, is a decision to not issue an order. Certain persons (such as, for example, a worker or union) who are affected by a decision may request a review of a decision not to issue an order. However, the Policy provides that once a compliance agreement has been entered into and is in effect, WorkSafeBC will not issue orders for any violations specifically described in the agreement. Similarly, once a compliance agreement has been satisfactorily completed by an employer, an order cannot be retroactively issued, including by the Review Division.

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 ("Act") or the regulations.

Section 187 of the 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 WorkSafeBC 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 a prevention officer will issue compliance order(s) even when no violation of the Act or the regulations has occurred. Policy on the authority of a prevention 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 a prevention officer of WorkSafeBC to issue an order only in the circumstances where a violation is occurring or has occurred.

A prevention 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 prevention 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 prevention officer that he or she will not comply with the requirements of the Act or the regulations, the prevention 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 prevention officer should not write an order. The prevention officer must record the particulars of this discussion in the inspection text of the IR or on a CR.

There may be occasions when a prevention 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 prevention 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. A prevention 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 prevention 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 Regulation ("Regulation") applies. The prevention 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 prevention 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 Regulation 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 WorkSafeBC to locate and review these types of orders, the prevention officer will include reference to "WCA 187(2)" in the "Regulations 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, a prevention 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 ("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 WorkSafeBC'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 prevention officers of WorkSafeBC to make orders under those directives in addition to any specific conditions or restrictions named in the guideline:

  1. Prevention officers will not issue an order for a violation of a section of the OHSR that is 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 WorkSafeBC occupational health and safety related officers conducting inspections or investigations as well as to prevention 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; Revised January 1, 2016; Revised February 1, 2016

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 WorkSafeBC or by prevention 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 General Counsel or delegate
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 Services and Human Resources
159, 163, 195 Establishing fees President/CEO
159, 163, 195 Certification, other than establishing fees Director, Regulatory Practices 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(1.2) and (4) Confirmation of Stop Work Order and approval of "Stop Operations" Order Senior Vice President, Operations or Vice President, Prevention Services, or delegate
160, 196, 196.1, 73 Special Rates of Assessment, Administrative Penalties, OHS Citations, 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

 

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 section 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 "WorkSafeBC" 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 section 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 of the Risk Analysis Unit or designated alternate
  5. Director of Regulatory Practices or Manager of Certification Services, or their respective designated alternates

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 Advisor, 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 WorkSafeBC." 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 Risk Analysis Unit, or their designated alternate

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 Regulatory Practices 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; Preliminary Revision March 18, 2016

Regulatory excerpt
Section 190 of the Workers Compensation Act ("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.

Purpose of guideline
The purpose of this guideline is to discuss when WorkSafeBC will issue orders under sections 190(1) and 190(2) of the Act, referred to as "stop use" and "stop supply" orders respectively.

Application
Stop use and stop supply orders each apply to a "thing" that is either unsafe or does not comply with the Act or the OHS Regulation ("Regulation"). This includes tools, equipment, machinery, personal protective equipment, rigging, mobile equipment, or any other physical item that is used in a workplace.

Stop use orders
Stop use orders under section 190(1) may be written where an item that is being used in a workplace is not in safe operating condition or is not in compliance with the Act or the Regulation.

In many situations, non-compliance involving an item in the workplace will be addressed through compliance orders written under an applicable section of the Regulation. For example, where a required guardrail, while providing some protection, is only 100 cm above the workspace rather than the required minimum of 102 cm, a compliance order under section 4.55 of the Regulation may be sufficient to address the safety concern. In that scenario, a stop use order would be unnecessary.

In other situations, a compliance order alone will be insufficient to address the safety issue posed by the condition or non-compliance of the item. This would be the case where the continued use of the item would present a high risk of serious injury, illness, or death to a worker, meaning a compliance order alone would be insufficient to ensure that workers are not exposed to such risks. For example, equipment such as a table saw lacking a point of operation guard would pose a high risk of serious injury, illness, or death if used. In this situation, a stop use order may be necessary to ensure that the equipment is removed from use until a guard is installed.

For further information on when a violation is high risk, refer to Policy Item D12-196-2 RE: High Risk Violations.

A stop use order may also be appropriate where past efforts to correct the non-compliance or unsafe condition have proven ineffective. This may arise where an employer has received repeated compliance orders for a particular item or type of item, and the employer's past efforts to correct the non-compliance have proven temporary or ineffective. In that case, a stop use order may be appropriate to ensure the particular item is removed from use until a more permanent solution is implemented.

A stop use order may have the effect of shutting down work at a worksite. Where this is the case, a WorkSafeBC prevention officer will consider issuing the order as a stop work order under section 191 rather than a stop use order under section 190.

Stop supply orders
Like stop use orders an order to stop supply under section 190(2) may be written where a particular item that is not in safe operating condition or is not in compliance with the Act or the Regulation. Unlike stop use orders, a stop supply order can apply to things that are not yet in the possession of the end-user. This includes items that are currently being manufactured, distributed, leased, installed, or erected.

Stop supply orders prevent unsafe and non-conforming items from being introduced into workplaces. Accordingly, stop supply orders may be issued to a supplier even where safety concerns associated with the particular item do not amount to a high risk of serious injury. This ensures that items that will cause ongoing safety and compliance issues are not permitted to be supplied to workplaces.

Cancelling stop use/supply orders
Unlike a stop work order issued under section 191, stop use and stop supply orders do not require a written confirmation to prevent expiry after 72 hours. Instead, stop use and stop supply orders remain in effect until cancelled by WorkSafeBC in accordance with section 190(4).

A stop use or stop supply order will only be cancelled if WorkSafeBC is satisfied that the item that was subject to the order is safe and complies with the Act and the Regulation. The decision to cancel such an order must be made by a prevention officer once the prevention officer has determined these conditions have been met.

G-D12-196.1-1 OHS Citations New Item

Issued February 1, 2016

Regulatory excerpt
Section 196.1 of the Workers Compensation Act ("Act") states:

196.1 Administrative penalties — lower maximum amount

(1) The Board may, by order, impose on an employer an administrative penalty prescribed by a regulation of the Board, which penalty must not be more than $1 000, if the Board is satisfied on a balance of probabilities that the employer has failed to comply with a provision of this Part, or the regulations, as specified by a regulation of the Board.

(2) If an employer requests under section 96.2 a review of a decision made under subsection (1) of this section, the employer must

(a) post a copy of the request for review at the workplace to which the administrative penalty relates,

(b) provide a copy of the request for review to the joint committee or worker health and safety representative, as applicable, and

(c) if the workers at the workplace to which the administrative penalty relates are represented by a union, provide a copy of the request for review to the union.

(3) An employer who has been ordered to pay an administrative penalty under this section must pay the amount of the penalty to the Board for deposit into the accident fund.

(4) If an administrative penalty under this section is reduced or cancelled by a Board decision, or on a review requested under section 96.2, the Board must refund the required amount to the employer out of the accident fund.

The Lower Maximum Administrative Penalties Regulation ("OHS Citation Regulation") states:

1 Definition

In this regulation, "Act" means the Workers Compensation Act.

2 Administrative penalties

(1) In this section:

"comply" means comply with a provision of Part 3 of the Act, or the regulations, as specified in section 3 of this regulation;

"non-compliance date" means the date the Board, under section 196.1(1) of the Act, is satisfied an employer has failed to comply;

"penalty date" means the date of the order by which the Board imposes an administrative penalty under section 196.1(1) of the Act.

(2) The following administrative penalties are prescribed for the purposes of section 196.1(1) of the Act:

(a) a penalty that is half of the maximum amount allowable for an administrative penalty under section 196.1(1) of the Act, if, under that section, the Board is satisfied that an employer has failed to comply;

(b) a penalty that is the maximum amount allowable for an administrative penalty under section 196.1(1) of the Act, if, respecting an employer,

(i) the Board is satisfied the employer has failed to comply,

(ii) the non-compliance date of the failure to comply referred to in subparagraph (i) is within 3 years after the non-compliance date of a previous failure to comply by the employer, and

(iii) the penalty date of the previous failure to comply referred to in subparagraph (ii) is earlier than the penalty date of the failure to comply referred to in subparagraph (i).

3 Specified provisions

The following provisions are specified for the purposes of section 196.1(1) of the Act:

(a) section 115(1)(b) of the Act, as it pertains to orders;

(b) section 194(2), (3) or (4) of the Act if,

(i) as set out in subsection (1) of that section, an order includes a requirement for compliance reports, and

(ii) in the case of subsection (4)(d) of that section, the Board requires the employer to send a copy of the compliance reports to the Board;

(c) section 2.4 of the Occupational Health and Safety Regulation, as it pertains to orders.

Section 115(1)(b) of the Act states:

(1) Every employer must

(b) comply with this Part, the regulations and any applicable orders.

Section 194 of the Act states:

(1) An order may include a requirement for compliance reports in accordance with this section.

(2) The employer or other person directed by an order under subsection (1) must prepare a compliance report that specifies

(a) what has been done to comply with the order, and

(b) if compliance has not been achieved at the time of the report, a plan of what will be done to comply and when compliance will be achieved.

(3) If a compliance report includes a plan under subsection (2)(b), the employer or other person must also prepare a follow-up compliance report when compliance is achieved.

(4) In the case of compliance reports prepared by an employer, the employer must

(a) post a copy of the original report and any follow-up compliance reports at the workplace in the places where the order to which it relates are posted,

(b) provide a copy of the reports to the joint committee or worker health and safety representative, as applicable,

(c) if the reports relate to a workplace where workers of the employer are represented by a union, send a copy to the union, and

(d) if required by the Board, send a copy of the reports to the Board.

Section 2.4 of the OHS Regulation ("Regulation") states:

Every person to whom an order or directive is issued by the Board must comply promptly or by the time set out in the order or directive.

Purpose of guideline
The purpose of this guideline is to provide guidance on the issuance of OHS citations pursuant to section 196.1 of the Act and the OHS Citation Regulation.

About OHS citations
Employers are required to comply with the Act and Regulation at all times. WorkSafeBC conducts inspections to verify compliance and issues orders to address any violations of the Act or Regulation. Orders must be complied with promptly, or within any time specified in the order. Compliance with orders is essential to ensure that workplaces are safe.

While most employers do comply promptly, when there is a failure to comply, WorkSafeBC will follow up to ensure compliance is achieved. An OHS citation is a tool a prevention officer may use to address an employer's non-compliance with an order. It may also be used where there has been a failure to prepare, send, or distribute a compliance report. As an OHS citation is only available in these circumstances, employers will never be issued an OHS citation if they comply with orders in a timely manner.

An OHS citation is issued in the form of an order under section 196.1 of the Act and follows different rules than an administrative penalty ("OHS penalty") issued under section 196 of the Act. Like OHS penalties, OHS citations may only be issued on employers (not workers or independent operators).

When an OHS citation may be issued

Unlike OHS penalties imposed pursuant to section 196 of the Act, OHS citations may only be issued in circumstances that are not high risk (refer to Policy D12-196-2 for information on how to determine whether violations are high risk). An OHS citation may be issued as an alternative to an OHS penalty when an employer has failed to comply. This includes the following circumstances:

  • Failure to comply with an order as required by section 115(1)(b) of the Act
  • Failure to prepare or send a compliance report to WorkSafeBC, or meet other requirements under section 194(2), 194(3) or 194(4) of the Act
  • Failure to comply promptly with any order or directive issued by WorkSafeBC, as required by section 2.4 of the Regulation

In this guideline, this will be referred to collectively as failure to comply.

When an OHS citation will not be issued
OHS citations will not be issued in circumstances that are high risk, or when an OHS penalty or an OHS penalty warning letter has already been imposed either for the same failure to comply or for the underlying violation.

Citation warning
Prior to issuing an OHS citation, WorkSafeBC will warn the employer in writing that further failure to comply may result in an OHS citation or OHS penalty. Except in exceptional circumstances, if the employer fails to comply following the written warning, WorkSafeBC will issue an OHS citation or OHS penalty. An example of an exceptional circumstance may be where the employer has decided to discontinue the part of the business or decommission the piece of equipment in question, thus eliminating the risk.

OHS citation amount
For a first instance of non-compliance, the OHS citation is $500 (half the statutory maximum). For any subsequent instance of non-compliance within three years relating to any provision of the Act or Regulation, the OHS citation is $1000 (the statutory maximum). Both amounts are current as of January 1, 2016 and will be adjusted annually pursuant to the consumer price index.

If an OHS citation has been issued at half the statutory maximum and the employer continues to not comply with the original order, then an OHS citation at the statutory maximum may be issued. If the employer continues to not comply after an OHS citation at the statutory maximum has been issued, and further enforcement is required, an OHS penalty or other enforcement will be considered.

Example 1: subsequent instance of non-compliance within three years

On March 1, 2016, a prevention officer issues an order to an employer under section 16.7(j) of the Regulation as the workers authorized to operate lift trucks have not been trained to the applicable standard.

On April 5, 2016, the prevention officer conducts a follow-up inspection and finds that the employer has not made any arrangements to have the required training provided for the workers that are authorized to operate lift trucks. The prevention officer then issues a follow-up inspection report citing the employer for continued non-compliance and providing a written OHS citation/penalty warning.

On April 26, 2016, the prevention officer conducts a second follow-up inspection and finds that the employer has not yet complied with the order. The prevention officer then issues a second follow-up inspection report issuing an OHS citation for $500 and warning the employer that failure to comply could result in further enforcement action. The employer pays the $500 OHS citation.

On May 6, 2016, the prevention officer receives confirmation that the employer has complied with the order.

On January 1, 2019, a prevention officer conducts an inspection of a different workplace of the same employer and observes that ready access to an electrical breaker panel is blocked by materials stored directly in front of it. An order is issued under section 19.7(1) of the Regulation.

On February 4, 2019, the prevention officer conducts a follow-up inspection and finds that the electrical panel continues to be blocked. The prevention officer then issues a follow-up inspection report citing the employer for continued non-compliance and providing a written OHS citation/penalty warning.

On February 25, 2019, the prevention officer conducts a second follow-up inspection and finds that the employer has not yet complied with the order. The prevention officer then issues a second follow-up inspection report issuing an OHS citation for $1000 (second instance of non-compliance within three years). The prevention officer also includes a written warning to the employer that failure to comply could result in further enforcement action. The employer pays the $1000 OHS citation.

On March 6, 2019, the prevention officer receives confirmation that the employer has complied with the order.

 Inspection cycle #1Inspection cycle #2
 Non-compliance dateSecond non-compliance date within three years of the previous failure to comply
Date March 1, 2016 April 5, 2016 April 26, 2016 May 6, 2016 January 1, 2019 February 4, 2019 February 25, 2019
Violation Order for non-compliance Failure to comply Continued non-compliance Employer complies with the order Order for non-compliance Failure to comply Continued non-compliance
Enforcement activity Order OHS citation and OHS penalty warning $500 OHS citation   Order OHS citation and OHS penalty warning $1000 OHS citation

Example 2: continued failure to comply despite multiple warnings

On June 1, 2016, a prevention officer issues an order to an employer under section 3.16(1)(a) of the Regulation for a failure to provide a complete first aid kit at the workplace.

On July 6, 2016, the prevention officer conducts a follow-up inspection and finds that the employer has not complied with the order. The prevention officer then issues a follow-up inspection report citing the employer for continued non-compliance and providing a written OHS citation/penalty warning.

On July 27, 2016, the prevention officer conducts a second follow-up inspection and finds that the employer has not yet complied with the order. The prevention officer then issues a second follow-up inspection report issuing an OHS citation for $500 and warning the employer that failure to comply could result in further enforcement action. The employer pays the $500 OHS citation.

On August 6, 2016, the prevention officer conducts a third follow-up inspection and finds that the employer has not yet complied with the order. The prevention officer then issues a third follow-up inspection report issuing an OHS citation for $1000 and warning the employer that failure to comply could result in further enforcement action. The employer pays the $1000 OHS citation.

On August 16 2016, the prevention officer conducts a fourth follow-up inspection and finds that the employer has not yet complied with the order. The prevention officer then issues a fourth follow-up inspection report and considers whether an OHS penalty under section 196 of the Act is appropriate.

 Inspection cycle #1
 Non-compliance date
Date June 1, 2016 July 6, 2016 July 27, 2016 August 6, 2016 August 16, 2016
Violation Order for non-compliance Failure to comply Continued non-compliance Continued non-compliance Continued non-compliance
Enforcement activity Order OHS citation and penalty warning $500 OHS citation $1000 OHS citation Consideration of OHS penalty

Multiple OHS citations
Because OHS citations are issued for each violation (order cited) in an inspection report, multiple OHS citations may be issued if more than one violation is observed during a single inspection. For example, if an employer fails to comply with three orders in a single inspection report, three OHS citations may be issued.

Review of OHS citations
If an employer requests a review of a decision respecting an OHS citation, a copy of the request for review must be posted in the workplace, provided to the joint committee or worker health and safety representative, and provided to any union represented workers at the workplace. An OHS citation and an OHS penalty cannot be substituted for each other on review or appeal.

G-D12-196-2 High risk violations

Issued December 1, 2014; Editorial Revision consequential to August 4, 2015 Regulatory Amendment; Editorial Revision March 18, 2016

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

(1) The Board may, by order, impose on an employer an administrative penalty under this section if the Board is satisfied on a balance of probabilities 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:

1. "high risk" refers to high risk of serious injury, serious illness or death; and

2. "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 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) Acute Toxicity (Categories 1, 2 and 3 -- Inhalation)

(2) Specific Target Organ Toxicity -- Single Exposure (Category 1)

(3) Specific Target Organ Toxicity -- Repeated Exposure (Category 1)

(4) Reproductive Toxicity (Category 1)

(5) Carcinogenicity (Category 1)

(6) Germ cell mutagenicity (Category 1)

(7) Respiratory sensitization (Category 1)

(8) Corrosive to Metal

(9) Skin Corrosion/Irritation (Category 1)

(10) Serious Eye Damage/Irritation (Category 1)

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.