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Workplace safety inspections - 'Out of Synch'

Workplace safety inspections

CBC News

A CBC News investigation has found that workplace safety inspections in Canada are out of sync with the reality of the modern workplace environment.

In some provinces, claims to workers' compensation boards in workplaces that have traditionally been subject to safety inspections — such as construction, manufacturing, mining and forestry — are just as common as claims in workplaces that haven't been traditionally inspected — such as health care, education and office environments.

Even so, visits from inspectors were up to 10 times more frequent in traditional workplaces than in non-traditional ones.

The problem is more severe in the health care field. Not only are health care workers facing an ever-increasing threat of violence, but the agencies responsible for regulating safety in hospitals are not doing their job.

For instance, according to the CBC's analysis of B.C.'s inspections database, nurses are nearly 20 times less likely to be inspected than workers in more traditional sectors such as forestry. Yet, according to Statistics Canada, 73,000 nurses were assaulted at hospitals or care homes across Canada during 2005. That's 32 per cent of all nurses involved in direct patient care.

In many provinces, workers in health care settings are just as likely to claim injuries to compensation bodies as construction, manufacturing and forestry workers.

As well, government inspections are also following a traditional five-day, nine-to-five schedule, while an increasing number of people are working outside the traditional nine-to-five shifts, and their likelihood of having an accident increases during those periods. The CBC News analysis shows that most government inspections are not being conducted during hours outside the regular workday, such as weekends.

The Criminal Code of Canada was amended after the 1992 Westray mining disaster that killed 26 miners in Plymouth, Nova Scotia. Under Bill C-45, a corporation can be found guilty of criminal negligence for an unsafe workplace. As yet, there have been no convictions under the law.

This CBC News investigation, called "Out of sync", is the second into workplace safety this year. The first, Dying for a job, was reported in April 2006.

http://www.cbc.ca/news/background/workplace-safety/

In Depth

Workplace safety

Out of sync with today's changing workplace

January 15, 2007

CBC News

Catherine Klein was feeling pretty comfortable in her job as a nurse at the general hospital in Princeton, a small town about a three-hour drive east of Vancouver. She had recently graduated from nursing school and had settled into a life with her new husband. Before long, her permanent, part-time position turned into a full-time job. Life was great.

Klein works in Princeton General Hospital's long-term and acute-care sections. "I'm really enjoying the small town a lot more than I thought. It's really different than working in a big centre where you don't know anybody. It's just a little nicer knowing something about the person you're trying to help." But during the morning of Nov. 17, 2004, her familiar world turned dangerous when she stood between a knife-wielding robber and the medicine cabinet full of narcotics.

"It was almost personal. It hurt that someone would come to our little hospital in their own little town and rob us. It's like holding up your grandma or something." How that robbery unfolded and its aftermath is spelled out in the profile of her case on The World at Six on Monday, Jan. 15.

Klein's ordeal is indicative of one of many trends uncovered by CBC News in our second major investigation into workplace safety. In Dying for a Job, which aired the week of April 23, 2006, we used provincial freedom-of-information laws to obtain databases from workplace safety insurance boards across the country to examine national trends. One of our major headlines was the fact that nurses like Klein were anywhere from six to 12 times more likely than workers in any other industrial sector to book off work after a violent incident.

Kim Kinsman worked as an ultrasound technologist in B.C. before the pain in her arm spread to the rest of her body and became too much for her. She quit her job and applied a compensation claim from WorkSafeBC. She was rejected because she couldn't prove her pain developed on the job. But Kinsman fought back. Audio (Runs: 4:14)

In this second series, which we're calling Out of Sync, we ask the question: how effectively are provincial ministries dealing with many of the emerging threats faced by thousands of workers across the country? While some jurisdictions such as B.C. and Ontario have stepped up their efforts to deal with these threats, our analysis of inspections databases from most jurisdictions demonstrates that the efforts are not as effective as they could be.

For instance, a disproportionate number of workplace inspections focus on traditional sectors such as manufacturing as opposed to non-traditional sectors, such as health care and social services, where an increasing number of Canadians are being injured on the job. Our analysis also shows that most government inspections are not being conducted during hours outside the regular workday, such as weekends. This, despite evidence that shows that an increasing number of people are working outside the traditional 9-to-5 shifts, and evidence that their likelihood of having an accident increases during those time periods.

From an academic standpoint, the changing nature of the workforce, and the effect those changes are having on inspection and compensation systems around the world have been studied. Though, as far as some experts are concerned, much more needs to be done.

According to a summary document of research conducted in this area, "Unsafe working conditions are still prevalent in Canadian workplaces. Physical injuries are associated with physically demanding jobs, especially in manufacturing and construction. But, injury rates are also high in sectors such as retail, health and social services.… Workers' compensation practices, which were designed to address physical trauma in a world of manual, blue-collar, male work, have not changed to sufficiently recognize the growing reality of less visible physical injuries that develop over a period of time."

"Modern workers' compensation laws in Canada, they all came into effect, for the most part, in the first decade or two in the 20th century," explains Robert Storey, who teaches in the labour studies and sociology department at Hamilton's McMaster University.

"And of course, that's synonymous with the rise of industrialism, industrial capitalism and large factories, chaotic machinery and lots of accidents. And so the compensation acts were framed around the so-called dangerous trades: steel companies, coal mines, etc. So there wasn't much thought given to other kinds of workplaces and other kinds of workers because in fact they were thought to be safe. Starting in the late '70s, we see this change to what everyone was then calling the new economy. And we now see it as an information economy, post-modern economy where you have a shift from most people being employed in industrial jobs … into the secondary and what we call the service sector, which is one form or another of white-collar work or pink-collar work."

Many jurisdictions have been attempting to adjust to the new economy and the hazards facing workers in these non-traditional sectors. In Nova Scotia, for instance, Department of Environment and Labour is asking citizens what they think should be done to help deal with the increasing level of violence faced by health-care workers. This, despite the fact that our analysis from 2001-2005 shows that the ministry was far less likely to inspect health-care facilities compared to employers in the traditional sector. Unions have been pushing to have violence included in the regulations, arguing that the province needs to have the legal muscle to force employers to take this issue seriously.

Unlike Nova Scotia, B.C. has regulations to deal with violence in the workplace. The law stipulates that, among other things, health-care employers must conduct safety audits to provide maximum security for their employees. The letter by then Deputy Health Minister Penny Ballem instructed the health authorities to get busy.

"Health authorities will be expected to complete risk assessments, develop plans for appropriate control measures, and initiate appropriate communication, education and training programs within one year of issuance of this policy," wrote Dr. Penny Ballem to the CEOs of the provinces' health authorities in 2005. The deadline has come and gone. And it's still unclear how many facilities have complied. The lack of clarity concerns at least one union. In its letters to the health minister and WorkSafeBC, the Health Sciences Association of British Columbia, wondered about the reaction to the ministry's edict and whether facilities that had failed to fulfil their legal obligation under the Workers' Compensation Act and Regulation would be penalized.

"Every workplace needs to foresee the possible risks that arise," warns Len Hong, president and CEO of the Canadian Centre for Canadian Occupational Health and Safety. We spoke to Hong about our findings regarding the lack of inspections for non-traditional workplaces. And while he did stress that more provinces, employers and workers are trying to take these matters more seriously and are putting measures in place, he concedes that progress might not be happening fast enough.

"Are they doing enough? Obviously, not enough."

New battle grounds in workplace safety

Another area that also demands more attention is illnesses that occur at work, but are unrecognized by compensation boards. Historically, the boards have only covered certain kinds of injuries, usually those related to on-the-job accidents.

If a roofer falls and injures himself or herself, then it can be fairly easy to prove that the workplace caused the accident. But what if the link to the workplace is more dubious, but the illness is real? Increasingly, compensation boards are dealing - or not dealing, as it turns out - with those kinds of circumstances. This is the case for an increasing number of workers suffering from mental stress.

Maureen Brennan and Schiphrah Cazir work in the Canadian air travel industry, one as a passenger check-in-agent, the other in her company's call centre. Over the past several years, both women found themselves labouring in what they describe as increasingly stressful work environments, and both were eventually ordered to stop working by their doctors.

Yet neither woman elected to try to claim for compensation support in their province because they had seen other colleagues suffering similar chronic stress injuries rejected out of hand by provincial insurance boards, which refuse to recognize chronic stress injuries as serious workplace diseases.

Catherine Loughlin knows all about these new battlegrounds for workplace safety. She is a Canada research chair in management at the Sobey School of Business at St. Mary's University in Halifax. She says illnesses such as mental stress are not traditionally covered by compensation boards, because the boards have determined that it's too difficult to prove that the stress was caused by an event at work.

It turns out that mental stress is considered to be different from the post-traumatic stress suffered by someone who witnesses a horrendous event at work, or someone such as B.C. nurse Catherine Klein who was held up at knifepoint. In a case such as Klein's, the worker can show that the stress is tied to an incident, the same way that a piece of machinery that maims a worker can be blamed as the culprit. As far as most of the country's insurance boards are concerned, mental stress, the kind that is the result of a gradual onset unrelated to any one factor at a point in time, is a different story. Most workers' compensation boards, except for Quebec, Saskatchewan, the Northwest Territories and the Yukon, don't cover stress that is deemed to be cumulative.

"For example, if you go into a traditional workplace and let's say you have an individual lifting bags of flour in a cake factory," explains Loughlin, "there will be clear cutoffs. In other words, this bag can only weigh X number of pounds in order to be lifted safely. We don't typically have a cut-off for the number of abusive comments a person can receive in an hour, or the number of times someone can be insulted by customers. So there are a lot of other things going on in the workplace, but we typically only recognize the physical ones that we can measure.

"Mental conditions, psychiatric conditions, depression are not things you can really look at with an X-ray," adds Katherine Lippel, who holds a Canada Research Chair in occupational health and safety law at the University of Ottawa. "When we talk about stress claims, you've got to watch it because sometimes it's a way of trivializing these claims. We're talking about mental illness here. We're talking about depression. We're talking about diagnosed, recognized illnesses. And we're talking about documented causes. We're not saying this person hasn't been sleeping, so let's give him money."

Insurance boards such as WorkSafeBC agree that these illnesses are serious, but they argue they haven't seen enough research to help them draw definitive links between workplace conditions and gradual or chronic stress. Perhaps the person's home life is a contributing factor. Or perhaps they're at risk for mental illness, regardless of where they work. The boards suggest that there are other ways to deal with stress clams, such as private insurance, employee-assistance programs and, in extreme cases, unemployment insurance. The problem with these alternate methods, argues Lippel, is that there is no legal obligation for the employer to fix the problem that could be causing the stress. Under workers' compensation, the provincial ministry has the right to inspect a workplace and order the employer to take corrective action. No such obligation for corrective action exists under any system outside workers' compensation. Lippel says that contrary to arguments being made by workplace insurance boards, there is an emerging body of evidence - and lawsuits - that may force employers and boards to think twice about making chronic stress a compensable injury. (More information on this topic can in these articles in PDF format: 1, 2.)

"What we're finding in terms of these longitudinal studies in Europe, for instance, is continual increase in stressful working conditions. Intensification of work is something that is being carefully monitored by people interested in epidemiology of mental health. Violence in the workplace is on the increase. And, of course, if you look at anything having to do with the public sector, huge cutbacks in terms of the number of people working for the quantity of work they have to do, of course it's more stressful," says Lippel.

Prosecute this

Another trend we studied in Out of Sync involved some of the more aggressive measures at the disposal of governments, namely, fines and prosecutions. We were able to obtain prosecutions data from three provinces: Nova Scotia, Ontario and British Columbia. In B.C., for instance, the number of fines, when adjusted for inflation, diminished from $2.3 million in 1995 to $1.4 million, the latest year for which we were able to obtain complete statistics. During the same time period, the number of inspections decreased by 40 per cent.

And in some instances, this reduction, especially in the area of prosecutions, is by design, says Raymond Rock, WorkSafeBC's regional director for the Lower Mainland in the West Division. "They're [prosecutions] down. There's always a shift in what is the best way to get that message across. Investigations are a separate group now. And they have a mandate. And their job is to investigate all fatalities, and then select a number of serious injuries to see what kind of lessons we can learn."

In many instances, argues Terry Bogyo, WorkSafeBC's director of corporate planning and development, it's better to avoid prosecution to achieve quicker results. He says sometimes it's better to keep closer tabs on workers, place orders, impose fines or raise premiums the employers must pay.

"The point is to change the behaviour in the workplace to make it a safer place," says Bogyo. "We will not shy away from doing a prosecution in the right case, and we do them. But we're interested in making that change today to protect workers. And part of what we do through ensuring compliance and through the system of issuing penalties is to get to that end." Not only can employers be pursued by provinces, the federal government can also use its powers under the Criminal Code of Canada. Bill C-45 is a legacy of the 1992 Westray mining disaster that killed 26 minors in Plymouth, N.S., and sent shock waves west to Parliament Hill.

Some of the miners, including Glenn Martin, were increasingly nervous about working in the mine. The eldest of five brothers, he represented the fourth generation of Martin men to work in the coal mines. Out of work, and with little education, he had trouble finding steady work. With a little political clout due to the influence of Elmer MacKay, who was the Conservative MP for Central Nova, Glenn was able to get a job. He began working underground in September 1991. He was not one to scare easily, but the frequent cave-ins and the constant accumulation of coal dust made him nervous. By the following spring, he was ready to call it quits.

"As much as he hated being on pogey, it was better than taking his chances at Westray. He would work just a little longer…until he had saved enough money to put siding on his house and pave the driveway. Then he would quit," wrote Dean Jobb in his 1994 book Calculated Risk: Greed, Politics, and the Westray Tragedy.

On May 8, 1992, the 26 men went underground for the late shift. Early the next morning, an explosion fuelled by methane and coal dust ripped through the mine, killing all 26 men. Rescuers were never able to recover 11 of the bodies.

Of course, Westray has become synonymous with workplace safety and what can go wrong at work. A coroner's inquest into the mining disaster issued many recommendations to prevent similar accidents. And one of those recommendations was giving the federal government the power to prosecute and perhaps convict employers who knowingly put their employees at risk. After much debate in the House of Commons, of which NDP MP and former party leader Alexa McDonough was a part, the government of the day passed Bill C-45. "But I think it's also devastating that now three years later, there's very little sign that this legislation is actually being used in cases that appear to warrant it," she says, reflecting on Westray's legacy.

The United Steel Workers Union argues that there are many cases that should be prosecuted under Bill C-45. As a recent example, they point to the death of Lyle Hewer, a worker who died two years ago in a sawmill accident in New Westminster, B.C. Local union president Les Veale recalls what happened.

"Lyle had determined about 20 minutes into unplugging it [a 5.5-metre-high hopper at the end of a conveyor belt that collects bark and then grinds it up] that he'd made enough room to climb inside of the machine that wasn't running and start pulling on the bark to pull it out to the people outside and they would distribute it. They worked from 20 to 25 minutes, pulling the bark from the open door, of which all they could see was Lyle's feet. And then after that, the supervisor came up and asked how things were going and asked how Lyle was, and that's when they tapped him on the foot and realized that his foot was limp…. What had happened was the loose bark that was stuck inside the chute … came down on and around him … and it suffocated him."

The Crown decided not to lay charges against the company.

For its part, the Crown in Quebec is considering using the law. One case before the courts in that province involves the Westray amendments to the Criminal Code. Transpave, a concrete block manufacturer northwest of Montreal, has been charged with criminal negligence causing death. A 23-year-old worker was killed in 2005 while trying to clear a jam in a machine. If convicted, Transpave would be the first corporation found guilty of criminal negligence since the Westray mine explosion.