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Due Diligence for Canadian Workers
Monday, Feb 1st, 2021
Across Canada, employers and employees rely on due diligence to ensure everyone is working toward the same goal: going home safely. While the federal and provincial governments maintain regulations to protect workers, those laws have little effect without due diligence.
There are no specific standards or regulations for due diligence because it will look very different in each workplace. For employers, due diligence can also serve as a legal defense. However, to use it, employers must have a track record of workplace safety and ongoing hazard control. If changes are made after an incident occurs, those changes would not fall under due diligence.
Generally, due diligence includes an occupational health and safety plan, though requirements will vary depending on jurisdiction. These plans are intended to prevent incidents from occurring, but they also provide guidance to workers for responding to an incident or emergency.
There are several common areas that most plans cover, including:
- Overview of the plan and the employer’s commitment to safety
- Workplace rules, regulations and guidelines
- Employee training
- Personal protective equipment
- Hazards in the workplace
- Emergency response
- Incident investigation
Occupational health and safety plans should also include a disciplinary process, up to and including firing. A health and safety plan should be a living document, constantly being changed and updated to reflect the most recent hazards. Employees at all levels should be familiar with the plan.
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What is Due Diligence?
From a regulatory standpoint, due diligence does not have specific methods or steps. However, the Government of Alberta created three questions that can help determine if due diligence has been performed.
These straightforward questions are:
- Could a reasonable person foresee that something could go wrong?
- Is there an opportunity to prevent an injury or incident?
- Who has the ability or responsibility to prevent an injury or incident from occurring?
For example, say an employer observes an employee packing boxes for shipment and identifies a potential hazard in boxes falling off the conveyor belt onto the employee. By using these questions, the employer would recognize the need to act, perhaps by changing the layout of the packaging station, because they have both the ability and responsibility to prevent an incident.
Review Your Workplace Hazards
Job tasks can also be evaluated through a job safety analysis (JSA). This method is more formal than the three questions above. To perform a JSA, an employee will observe a coworker performing their job, recording the steps of their role as well as any potential hazards. The JSA should not be used to punish employees. Even if an employee is not performing a job safely or correctly, there typically is a reason that could be controlled.
For example, if employees regularly use a chair to change lightbulbs rather than a ladder, a JSA may determine that the ladder is up two floors in a closet inaccessible to employees without the code. If an employer had initially disciplined employees who they saw using the chair, they may never have discovered that the real problem was a lack of access.
When controlling a hazard, employers typically use the hierarchy of controls. These methods aim to reduce or eliminate worker exposure to workplace hazards, which may involve implementing temporary measures until permanent controls can be put in place.
The most successful methods are elimination and substitution. If these do not reduce the hazard to safe levels, employers must consider if there are engineering or administrative controls that can reduce or eliminate exposure.
Finally, if the hazard is still not controlled, employers will use personal protective equipment (PPE), which is generally less effective than other hazard controls but tends to be much easier to implement.
Prepare but Be Aware
Training and training records also play an important role in due diligence. Information on safety and health should be provided throughout an employee’s time at a worksite. This may include general orientation as well as job-specific training.
Training may also include regular retraining over certain topics to review existing protocols and introduce new ones. Employees should also receive training over their role during an emergency and, in certain cases, they may also need training over spill response, spill cleanup and first aid.
Due diligence is never guaranteed, even in workplaces that appear to have taken the appropriate protective measures. Severe weather, careless employees, or an unforeseen incident can all occur, affecting everyone on a worksite.
Employees should be familiar with and understand the consequences of not following their training. For example, if an employee passes out while in a confined space and an untrained employee goes to rescue them, it is likely they will need rescuing themselves.
All workers should also be familiar with incident investigations and what, if any, role they play. In some cases, they may be a witness, while in others they may be a member of the investigation team and they should receive the appropriate training for their role.
While it’s never a guarantee, due diligence can still play a role in preventing workplace incidents. Employers and employees should be familiar with due diligence and understand the importance of their role in the workplace health and safety program.