As we transition to new ways of working in the context of the COVID-19 pandemic, social distancing and other measures to prevent transmission of COVID-19 have become priorities in the workplace.
In a related article, we discussed WorkSafeBC’s requirements for workplace safety during this unprecedented time. In this article, we explore the powers that the Worker’s Compensation Board (operating as WorkSafeBC) (the “Board”) has to enforce compliance with workplace safety requirements.
COVID-19 Specific Guidance
WorkSafeBC has published a collection of workplace safety guidelines that are specific to dealing with COVID-19. While these guidelines themselves do not have the force of law at present, failure to abide by them places employers at risk of creating an unsafe working environment, which can lead to serious consequences at law.
We note that government health officials have recently announced that fines or criminal penalties may be imposed for failure to comply with the requirement that workers who have travelled internationally remain away from work and in isolation for 14 days after returning to Canada.
The Board’s Powers to Remedy Non-Compliance
Below, we discuss the powers that the Board has to remedy an employer’s non-compliance with the Workers Compensation Act (the “Act”) or the Occupational Health and Safety Regulation (the “Regulation”). These remedies include, but are not limited to:
- Compliance Agreements;
- Compliance Orders;
- Stop Work Orders;
- Cancellation of Certificates;
- Warning Letters;
- Administrative Penalties; and
- OHS Injunctions.
While in this article we focus on the powers listed above, we note that the Board also has broad powers to investigate workplaces in order to determine if there has been an Occupational Health and Safety (“OHS”) violation.
In certain situations, the Board may enter into a Compliance Agreement with an employer who voluntarily agrees to correct an OHS violation. The Board will not enter into a Compliance Agreement when an OHS violation puts worker health or safety at immediate risk or if the employer has engaged in the same OHS violation within the preceding 12 months.
Compliance Agreements must be in writing and must describe the actions that the employer will take to remedy the OHS violation. The Compliance Agreement must also set out a time frame for correcting the OHS violation. An employer who is party to a Compliance Agreement has an obligation to report back to the Board by a specific date regarding the actions that have been taken to correct the OHS violation.
Compliance Orders are the Board’s primary tool for remedying non-compliance with the health and safety requirements of Act or the Regulations. The range of orders that the Board may make in order to ensure compliance is broad. The specific orders that the Board may make are set out in section 187(2) of the Act and include, but are not limited to:
- 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;
- Requiring a person to take measures to ensure compliance with the Act and the Regulations or specifying measures that a person must take in order to ensure compliance with the Act and the Regulations;
- 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;
- Requiring an employer to install and maintain first aid equipment and service in accordance with the order; and
- Doing any other thing that the Board considers necessary for the prevention of work related injuries and illnesses.
Failure to comply with a Compliance Order may result in escalating penalties, including Stop Work Orders and monetary fines, as discussed below.
Stop Work Orders
Where there are reasonable grounds to believe that there is a high risk of serious injury, serious illness or death at a workplace, the Board may issue a Stop Work Order. A Stop Work Order may also be issued if other attempts at enforcing compliance with the Act or the Regulations, such as a Compliance Agreement or Compliance Order, have been unsuccessful. A Stop Work Order requires the employer to cease operations in their workplace.
The duration of a Stop Work Order will vary with the circumstances. The Board may cancel a Stop Work Order as soon as the employer has remedied the unsafe workplace or working conditions. Generally, a Stop Work Order will remain in place so long as it is required to protect workers.
Cancellation of Certificates
The Board issues certificates under Part 3 of the Act and the Regulations to qualify workers to do particular jobs. These jobs include, among others, first aid attendants and first aid instructors, as well as blasters and blasting instructors. Section 195 of the Act provides that, if the Board has reasonable grounds to believe that a person who holds a certificate issued under Part 3 of the Act or the Regulations has breached a term or condition of the certificate or otherwise contravened the Act or the Regulations, the Board may, by order:
- Cancel or suspend the certificate; or
- Place a condition on the use of the certificate that the Board considers necessary in the circumstances.
Upon learning of an OHS violation, the Board may send a letter to an employer warning that further similar violations of the Act or Regulations will result in an Administrative Penalty. A Warning Letter may be sent when the grounds for considering an Administrative Penalty are met and the employer has failed to demonstrate that they exercised due diligence with respect to the OHS violation. Due diligence is discussed below in the context of Administrative Penalties. A key factor that the Board will consider when deciding if a Warning Letter is appropriate is the likelihood that the warning letter will be sufficient to cause the employer to remedy the situation.
An Administrative Penalty is a monetary fine. There are two types of Administrative Penalties that the Board may impose: OHS Penalties and OHS Citations.
Section 196(1) of the Act provides that the Board may, by order, impose on an employer an Administrative Penalty if the Board is satisfied on a balance of probabilities that:
- The employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses, the employer has not complied with [the Act], the Regulations or an applicable order, or
- The employer’s workplace or working conditions are not safe.
The amount of an OHS Penalty varies. Higher penalties are imposed for violations that are high-risk, intentional, involve obstruction of an officer of the Board or involve non-compliance with Board orders. The maximum amount for an OHS Penalty is $674,445.93. This maximum is adjusted on January 1 of each year.
The Board must not impose an OHS Penalty if the employer establishes that it exercised “due diligence” to prevent the failure, non-compliance or conditions to which the penalty relates. Due diligence means taking all reasonable steps to comply with the Act and the Regulations. This involves consideration of what a reasonable person would have done in the circumstances. Due diligence will be found if the employer reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if the employer took all reasonable steps to avoid the particular event.
An OHS Citation is a less severe form of administrative penalty. OHS Citations are limited to circumstances that are not high risk. For the first offence, an OHS Citation is $542.50. The penalty is $1,085.00 for a subsequent violation within three years. These amounts are adjusted annually.
The Board may apply to the British Columbia Supreme Court ( the “BCSC”) for an injunction to:
- Restrain a person, including a corporation, from committing a violation of the Act or the Regulations;
- Require a person to comply with the Act, the Regulations or an order; or
- Restrain a person from carrying on an industry or an activity in an industry for an indefinite period or until the occurrence of a specified event.
Pursuant to section 198 of the Act, the BCSC may make one of the above orders where satisfied that there are reasonable grounds to believe that a person has contravened or is likely to contravene Part 3 of the Act or the Regulations, or has failed to comply with Part 3 of the Act, the Regulations or an order.
Persons who fails to comply with an injunction may be found in contempt of court, in which case they may face a fine, jail sentence or other terms imposed by the BCSC.
Contact Us For More Information
Our Employment Law team is eager to assist you in understanding your legal rights and obligations as you adjust to changing work environments due to COVID-19. To find out more contact our Managing Partner, D. Rodney Urquhart.