Changes to the Occupational Health & Safety Act (Nova Scotia) (OHSA) will take effect on June 12, 2017, and employers should be aware that the changes are intended to increase accountability for incident reporting. The amendments, introduced in April of 2016, better define when, how, and what injuries must be reported and timelines for reporting have been shortened. The changes also increase the government’s authority to deal with repeat offenders.
Reporting obligations
Under the current Act, Section 63(1)(a) gives an employer up to seven days to provide a written notice to the Director of Occupational Health and Safety of a workplace accident or fire that results in serious injury to an employee. Under the new version of Section 63(1), the employer has only twenty-four hours to report, and the types of injuries considered to be “serious” have been more clearly defined. The new section reads:
63 (1) The employer shall notify the Director
(a) as soon as possible, but in no case later than twenty-four hours, after a fire, flood or accident at the workplace that causes
(i) unconsciousness,
(ii) a fracture of the skull, spine, pelvis, arm, leg, ankle, wrist or a major part of the hand or foot,
(iii) loss or amputation of a leg, arm, hand, foot, finger or toe,
(iv) a third degree burn to any part of the body,
(v) loss of sight in one or both eyes,
(vi) asphyxiation or poisoning,
(vii) any injury that requires the admission to hospital, or
(viii) any injury that endangers the life,
of an employee, unless the injury can be treated by immediate first aid or medical treatment and the person can return to work the following day;
Under the existing section, whether an injury is serious or not was left to the judgment of the employer. The 7-day time period also provided a window during which some employers would take a “wait and see” approach to determine whether the injured employee was as seriously injured as may have been first apparent. The new section shortens the time frame to less than 24 hours and the list of types of injury significantly reduces the amount of discretion or judgment that can be brought to bear on the decision to report. “Flood” has also been added to the type of occurrence that can give rise to a reporting obligation.
The current Act in Section 63(1)(b) requires an employer to report an accidental explosion within 24 hours, whether any person is injured or not. A new subsection (1)(b) adds other types of occurrences to the requirement to report even where there is no injury. Major structural failures or collapse of a building or other structure, a major release of a hazardous substance, and any fall from a work area in circumstances where fall protection is required by the regulations, all must be reported to the Director “as soon as possible, but in no case later than twenty-four hours”. As well, if a person is killed or is likely to die from injuries at a workplace, it must be reported immediately. Under the current Act, employers had up to 24 hours to report a fatality or potentially fatal injury, and the 24-hour window has, in some cases, lead to investigatory challenges. In the case of a workplace fatality or near fatality, the Director must be called as soon as paramedics and police officers have been contacted.
Enforcement
The Act has been amended to address the inability of the Director to deal with repeat offenders. There have been several cases involving employers who do not learn from enforcement proceedings. Therefore, provisions have been added to allow for more serious consequences for subsequent offences. As of June 12, a repeat offender is a person who has contravened the Act or failed to comply with an order under the Act more than once in the preceding three-year period. The Director has new powers to impose stop work orders at all job sites of a repeat offender, and to prohibit the employer from starting work at any workplace until orders are complied with. They can also be required to advise the Department of future work locations and activities so that inspections can be conducted.
The Director will also have the power to apply to the Supreme Court of Nova Scotia for an injunction to compel compliance with an order or shut down an operation. Injunctions can be issued against the employer and also against any person who is an officer, director, shareholder or otherwise participates in management of an employer. The injunction could potentially prohibit an employer or person from working in an industry if they have a history of causing serious injuries or deaths. This additional remedy heightens the risk to employers and the officers and directors of employers of failing to comply. Injunctions are among the most serious orders a court will make and breaching an injunction order can result in contempt of court proceedings, leading to the arrest and detention of the person in breach.
Summary
The changes coming into effect on June 12, 2017 are part of Nova Scotia’s Workplace Safety Strategy, a joint project of the Department of Labour and Advanced Education and the Workers’ Compensation Board. They are one of the last improvements to the Act to be introduced after a period of several years of strengthening the legislation to improve workplace safety.
If you have any questions about occupational health and safety and the responsibilities of employers, please contact Claire Milton, Q.C.