Written By Jennifer A. Miller QC, Simon Foxcroft and Odessa O'Dell
Bill 9 included new obligations for employers when investigating incidents and some of the amendments under Bill 35 take these obligations even further. They include:
- adding another occurrence in respect of which the employer must notify WorkSafeBC;
- increasing levels of participation by the people conducting incident investigations; and
- imposing additional requirements regarding the disclosure of the preliminary and full investigative reports.
These legislative changes will come into force on January 1, 2016. WorkSafeBC continues to conduct ongoing policy review regarding the implementation of these changes.
Immediate Notice: Incidents Involving Fire or Explosion
Employers will be required to immediately notify WorkSafeBC of the occurrence of any accident involving a fire or explosion that had the potential for causing serious injury to a worker.
This is in addition to the pre-existing requirement that employers notify WorkSafeBC of any accident that: resulted in a worker's serious injury or death; involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation; involved the major release of a hazardous substance; or was otherwise required by regulation to be reported.
Increased Participation in Incident Investigations
As we noted in our last update, there is a two-stage process required for all matters requiring investigation under Section 173 of the WCA: a 48-hour preliminary investigation and a 30-day full investigation. The new changes introduced by Bill 35 will require more involved participation on the part of the employer or employer representative, as well as on the part of the worker representative.
Currently, these investigations must be carried out by persons knowledgeable about the type of work involved and, if they are reasonably available, with the participation of the employer or a representative of the employer and a worker representative.
Effective January 1, 2016, the investigation methods these employer and worker representatives must undertake includes, but is not limited to:
- viewing the scene of the incident with the persons carrying out the investigation;
- providing advice to those carrying out the investigation respecting the methods used to carry out the investigation, the scope of the investigation, or any other aspect of the investigation; and
- other activities, as prescribed by WorkSafeBC.
Expanded Disclosure Requirements
Effective January 1, 2016, employers must ensure that both the preliminary investigation and final investigation reports are:
- provided to the joint health and safety committee or worker health and safety representative, as applicable; or
- posted at the workplace if there is no joint health and safety committee or worker health and safety representative.
The preliminary report must be so disclosed as soon as practicable after the report is completed. The final report must be so disclosed within 30 days of the incident occurring.
The implication of these new disclosure requirements is significant given the nature of the information that employers are currently required to include in their investigation reports. The content of investigation reports is set out in Sections 3.4 and 24.34 of the OHS Regulation to the WCA. Section 3.4 requires the inclusion of sensitive information, including the particulars regarding the incident, the names and positions of persons injured, the names of witnesses, causation analysis and the names of persons who conducted the investigation. On October 22, 2015, the Board of Directors of WorkSafe BC resolved to repeal Section 3.4 and amend Section 24.34 effective February 1, 2016. However, it remains unclear what will replace the repealed and amended sections, if anything, and until the date of repeal, the requirements of Sections 3.4 and 24.34 must be complied with.
A Final Note
British Columbia's incident investigation and reporting process is now more onerous for employers than it is in most other Canadian jurisdictions. The new and challenging reporting deadlines, defined participation activities for the employer and worker representatives, and the expanded disclosure requirements mean that employers have more on their to-do list than ever before.
It is vitally important that employers develop incident reporting systems that ensure compliance with the relevant laws in every region of operation. Employers are encouraged to review their current policies and guidelines to ensure that their approach to conducting investigations and preparing incident reports will conform with these new requirements.
WorkSafeBC continues to review current policies and guidelines in relation to the implementation of some aspects of these recent amendments. As a result, employers are also encouraged to regularly consult the current versions of WorkSafeBC's policies and guidelines concerning these changes and the Act generally. Current versions of these documents are published on WorkSafeBC's website.