There’s been an accident! So what happens next?

One leading employment lawyer says too many organizations don’t have a plan in place when it comes to employee injuries.

No HR professional wants to deal with a workplace accident or employee injury but preparing for the possibility is essential – worryingly, one leading employment lawyer says scores of organizations just aren’t ready.

“Many organizations are not prepared if there is a workplace accident that results in injury to an employee,” says Daniel Pugen, of Torkin Manes.

“An accident is not just an accident, and especially not in the workplace,” he adds. “Rather, a host of legal obligations are immediately triggered with significant consequences in the event of non-compliance.”

Notifying the authorities

When there is a workplace accident resulting in injury, there is a legal obligation under the OHSA to notify the workplace health and safety representative or joint health and safety committee, explains Toronto-based Pugen.

“For a fatality or critical injury the Ministry of Labour (MOL) must also be notified,” he adds.

According to Pugen, employers are also bound by strict time-limits when it comes to workplace injuries.

For fatalities or critical injuries (such as “unconsciousness, certain fractures, a serious loss of blood [or] burns to a major portion of the body,”) employers must notify the MOL immediately and provide details of the accident.

These details not only include the circumstances surrounding the accident but the machinery involved, the time and location of the incident and the names and addresses of injured parties and any witnesses.

“Even for non-critical injuries OHSA still requires that the circumstances be reported to the workplace health and safety representative or joint health and safety committee within four days,” says Pugen. “Any trade union must be notified as well.”

The workers’ compensation regime also has notification obligations on employers.
“Under the WSIA, employers must notify the WSIB within three days of learning of a workplace accident if that accident necessitates health care, results in the worker not being able to earn full wages, or causes the employee to go on modified duties,” says Pugen.

“This is done by filling out the WSIB's ‘Form 7,’ he explains, adding that the employer must generally pay the employee's full day's wages on the date of the injury.

Preserving the scene

Notifying the authorities, however, is not the only obligation on HR’s shoulders – in addition to this duty, employers must “preserve the scene” under OHSA.

“In other words, employers must not interfere with or disturb anything connected with the scene of the accident until given permission to do so by the MOL,” explains Pugen.

Not just employees

While most employers will have strict procedures in place to keep employees safe, it’s important to note that all of the OHSA obligations go beyond official workers.

“Recent court cases have confirmed that these duties apply to any person injured at the workplace (whether that be a customer, supplier, employee or otherwise) as long as there is a connection or ‘nexus’ between the accident and worker safety,” reveals Pugen.

One of the most important things to remember, stressed Pugen, is that once the MOL has been notified, the employer may get a visit from an inspector.

“An inspector has extremely broad powers under OHSA to attend the premises, collect documents, take pictures and order the employer to create or review policies, test or fix machinery or even halt production,” he warns.

“It is important to note that a visit from an inspector could result in charges being laid against the employer (or even individual supervisors or workers) under the Provincial Offences Actfor breaching OHSA.”

For this reason, Pugen suggests employers get legal advice on how to deal with the inspector and ensure due diligence.

“While accidents are unavoidable sometimes, being prepared is something that all employers can do,” says Pugen. “This is not only important in ensuring the safety and well-being of staff, but it is critical in avoiding costly penalties under the OHSA, which could be as high as $500,000 per charge.”

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