Workplace Health and Safety: Tips, Traps and Trends in Health Care

Your workplace. Our business.
Workplace Health &
Safety: Tips, Traps and
Trends In Health Care
BC Care Providers Association
40th Annual Conference - May 30, 2017
Alissa I. Demerse
J. Najeeb Hassan

Your workplace. Our business.Your workplace. Our business.
Overview of Today’s Workshop
1. Pop Quiz
• Let’s Test Our Knowledge of Mental Health
Claims, Bullying & Harassment and
Discriminatory Action Complaints
2. Discriminatory Action Complaints & Process
3. Scenario Training
4. New Investigation Models
• WSBC and Employer Investigations
5. WSBC’s New Compliance Tools
6. Let’s Chat
2

Pop Quiz!
Let’s Test Our Knowledge of …
 Mental Health Claims
 Bully & Harassment
 Discriminatory Action Complaints

Mental Disorder Claims
• To qualify for benefits, a mental health
disorder must have happened at work and
been caused by work
• The disorder must be due to one or more
“significant work-related stressors” or a
reaction to one or more traumatic work-
related events
– Bullying and Harassment can be significant
workplace stressor
– Labour Relations and performance
management exception
New in 2012
4

Bullying & Harassment
• Considered an occupational hazard
• Defined as “any inappropriate conduct
or comment by a person towards a
worker that the person knew or
reasonably should have known would
cause that worker to be humiliated or
intimidated”
• Can be a single event but most often is
a pattern of conduct
5
The WorkSafeBC Definition

What industry faces the most mental
disorder claims in BC?
A. Health Care
B. Transportation
C. Retail
D. Accommodation, Food & Leisure
6

How many enquiries or complaints
has WSBC received since adding the
B&H OHS policies in 2013?
A. 1.2 Million
B. 152,033
C. 6,345
D. 11,472
7

Which industries are contacting
WSBC most about Bullying &
Harassment?
A. Hospitality
B. Health Care
C. Retail
D. Forestry
E. Construction
8

Of the nearly 12,000 mental health
claims since 2013, only 2,026 were
allowed. How many of the allowed
claims do you think were accepted
for Bullying & Harassment?
A. 90%
B. 50%
C. 25 %
D. Less than 1%
9

But nearly 40% of all mental health
claims are disallowed. How many of
the disallowed claims do you think
involved Bullying & Harassment
allegations?
A. 48%
B. 95%
C. 73%
D. Less than 5%
10

Have we seen an increase or
decrease to Discriminatory Action
Complaints since expansion of
mental health claims and OHS
policies on Bullying & Harassment?
A. Decrease by 53%
B. Decrease by 27%
C. Increase by 53%
D. Increase by 72%
11

Discriminatory
Action Complaints
And Process
12

• "discriminatory action" includes any act or omission by
an employer, or a person acting on behalf of an employer,
that adversely affects a worker with respect to any term or
condition of employment (s.150 of WCA)
• Discriminatory action against a worker must not be taken
or threatened:
– For exercising an occupational health and safety right or
carrying out such a duty under the occupational health
and safety part of the WCB Act or OH&S Regulations;
– For testifying or preparing to testify regarding an
occupational health and safety (OHS) matter; and/or
– For giving information about OHS conditions to any
person administering the Act. (s.151 of WCA)
13
What are they?

• Taint Theory – a worker’s H&S actions need not be
the only or dominant reason for the employer’s
action – sufficient if they were one of the reasons.
Low, low threshold.
• When changing employment terms/conditions or
imposing discipline, make sure you keep OH&S in
mind – has the worker questioned or raised safety
protocols? If so, you may be looking at a potential
discriminatory action complaint!
14
The Taint Theory – A VERY LOW THRESHOLD

• Amendments to mental disorder provisions
and Prevention Manual policies re: bullying
& harassment have led to more DA
complaints
• The Board and WCAT have consistently
accepted that raising concerns about
bullying & harassment in the workplace is
carrying out a duty as required under
section 116 of the WCA
15
Intersection with Mental Disorder Claims and B & H

• Because of the reverse onus provisions,
obligation falls to employer to rebut the
Worker’s complaint
• This causes evidentiary challenges - a typical
bullying & harassment complaint often involves
“he said/she said” allegations
• Documentation is important, and good
investigations help!
16
Intersection with Mental Disorder Claims and B & H

• WorkSafeBC is contacted by worker (Prevention Hotline)
• Prevention Officer (PO) responds to complaint – gathers
evidence, ensures completion of complaint form. Will
also investigate the OHS issue reported.
• On completion of evidence gathering, file forwarded to an
Investigations Legal Officer (ILO) at WorkSafeBC’s
Compliance Department
• ILO reviews file to determine if evidence establishes a
prima facie case
– If yes, parties offered Mediation;
– If no, ILO will dismiss summarily with reasons
17
Process

• Mediation is only worth while if you as the employer are
willing to offer the complainant something
• If mediation declined or unsuccessful ILO will ask for
submissions from parties and conduct further
investigation of issues that need clarification
• Following receipt of submissions and evidence gathering,
ILO issues a decision on the merits, and may
subsequently ask for submissions on remedy
• Assuming submissions on remedy are ordered, ILO
issues decision on remedy (s.152-153 of WCA)
18
Process

• Prima Facie Determination: onus on the worker to prove:
1. Worker suffered type of negative consequences described in
section 150 (2)
2. Worker engaged in type of protected activities described in
section 151
3. There is a causal connection between the negative employment
consequence and the safety activity in question
 “Not an onerous task” (WCAT-2015-02089)
• If prima facie case demonstrated, then:
4. Onus on employer to disprove the case – that the reasons for
taking action against the worker was not related to any of the
prohibited grounds (Reverse Onus)
 Taint Theory applied
19
Test

• Section 153(2): If the Board determines that the
contravention occurred, the Board may make an order
requiring one or more of the following:
a) that the employer or union cease the discriminatory action;
b) that the employer reinstate the worker to his or her former
employment under the same terms and conditions under which the
worker was formerly employed;
c) that the employer pay, by a specified date, the wages required to be
paid by this Part or the regulations;
d) that the union reinstate the membership of the worker in the union;
e) that any reprimand or other references to the matter in the
employer's or union's records on the worker be removed;
f) that the employer or the union pay the reasonable out of pocket
expenses incurred by the worker by reason of the discriminatory
action;
g) that the employer or the union do any other thing that the Board
considers necessary to secure compliance with this Part and the
regulations.
20
Process - Remedies

• Object in determining remedy (how much the
worker should be paid) is to put the worker in the
same position she would have been in had the
discriminatory action not occurred.
• This may involve measuring not only the worker’s
actual loss but determining whether there were any
measures the worker could have reasonably taken
to reduce or eliminate that loss.
• Objective finding- very different from the typical
decisions from WorkSafeBC which are
determined by specific policy.
21
Process - Remedies

• As of January 1, 2017, WorkSafe’s
decisions on discriminatory actions
complaints are available on the
website:
• https://www.worksafebc.com/en/for-
workers/just-for-you/discriminatory-
action-complaints/search-past-
decisions
22
Decision Index

Scenario Training
Based on Real Cases
23

Handouts
• Case #1 – Mental Disorder Claim
• Case #2 – Discriminatory Action
Complaint
24

CASE SCENARIO #1 – Mental Disorder Claim
Mary was employed as a residential support worker in long term care facility. There were no
problems in her workplace until that summer when Tina became her supervisor. Tina would
not respond to Mary’s emails, would give co-workers information that was not provided to
her, and would criticize her work. Tina also re-assigned Mary’s work to other employees.
Mary also had problems with a co-worker, Susan. Susan would ignore her, hang up on her
during work-related telephone conversations, and not pass on information required to
complete her work duties. At a staff meeting, Susan and Tina chastised Mary in front of
other staff and during other occasions talked down to her.
A few months later Mary was asked to attend a meeting with a human resources person
and was told that effective immediately she was being transferred to work at a different
facility. She was told that she would continue working at the different facility until an
investigation was completed. Mary said that this made her feel “ambushed.”
Even though she had been transferred to a different worksite, Tina would still be Mary’s
supervisor when the other supervisor was away and she would be required to interact with
Susan during client transfers.
The worker started seeing a psychiatrist in the spring of the following year, who diagnosed
her with major depressive disorder, and possible post-traumatic stress disorder. She had a
pre-existing history of stress, anxiety, and depression.
Mary went off work and made a mental disorder claim for lost wages.
Questions:
1. Did Mary develop a mental disorder arising out of and in the course of her employment?
a. Was the worker diagnosed with a mental disorder?
b. Were the events “traumatic” or “significant” work-related stressors?
c. Was the mental disorder a reaction to a traumatic event or predominately caused
by a significant work-related stressor, or a cumulative series of significant work-
related stressors, arising out of and in the course of the worker’s employment?
2. Does the behaviour of Tina or Susan constitute bullying & harassment?
3. Does the management exemption apply in these circumstances?
{00650425;2}

CASE SCENARIO #2 – Discriminatory Action Complaint
Jane has been employed as a nurse in a care facility since 1990. In 2012, a new owner took
over the control of the facility. At that time, Sarah has been acting as the supervisor of the
nursing staff. When the new owner took over control, Sarah was officially named the manager
of the facility. This is did not sit well with Jane because she and Sarah had not got along much
before.
Sarah and Jane managed to keep things professional for the first two years that Sarah was
responsible for the facility but after two years the relationship began to break down. Sarah
started to accuse Jane of not fulfilling her duties, making mistakes on the job and not getting
along with her fellow nurses.
In February, Sarah allegedly told Jane that Meghan, one of her former colleagues, had
“threatened” to punch her. Meaghan was recently dismissed by Sarah and no longer worked at
the Facility. Jane complained to upper management and she was told to call the police if she
felt she was in danger.
Jane decided to ask Meghan about the threat and Meghan told her that she had not told Sarah
that. Jane believed Meaghan and decided not to call the police. However, it was at that time
that Jane knew that Sarah was “out to get her”.
Jane started to complain to upper management about Sarah and advised them of the threat and
her belief that Sarah had lied about it. Jane believed her complaints were not being taken
seriously. The Employer did not conduct an investigation and no corrective action plan was put
in place.
In May, Jane went on “stress leave”. The Employer issued Jane an ROE and changed her
payroll status to “on leave”. By the Fall, Jane still had not returned to work. She filed a mental
disorder compensation claim with WorkSafeBC.
In December, the Employer received a demand letter from Jane’s lawyer saying that it had
created a toxic work environment for Jane, that she would not return and that the Employer had
constructively dismissed her. The lawyer demanded to know the result of the Employer’s
investigation into the bullying and the threat. Without consulting a lawyer, the Employer wrote to
Jane’s lawyer saying that Jane had previously resigned and it had not dismissed her. The
Employer took this position even though Jane had been very clear up to that date that she had
not resigned.
In January, Jane filed a discriminatory action complaint with WorkSafeBC in which she alleged
that she was bullied by Sarah, and that the Employer failed to do anything about it which forced
her onto stress leave.
Questions:
1. Was Jane’s mental health claim accepted?
2. Was Jane bullied by Sarah?
3. Was Jane’s Discriminatory Action complaint accepted?
{00674367;1}

New Investigation
Models for
WorkSafeBC and
Employers
25

Two New Models
1. WorkSafeBC’s Investigations
a) Generally for accidents, injuries and fatalities or a near
miss (see sections 178 and 179 of WCB Act)
2. Employer’s Incident Investigations under section
173 of the WCB Act
a) all reportable incidents under section 172 (e.g. serious
injuries, fatalities, release of hazardous substance)
b) resulted in injury to a worker requiring medical
treatment,
c) did not involve injury to a worker, or involved only
minor injury not requiring medical treatment, but had a
potential for causing serious injury to a worker, or
d) was an incident required by regulation to be
investigated.
26

WorkSafeBC’s Investigative Model
• WorkSafeBC’s purpose for investigations:
1. To ascertain the cause and underlying
factors to prevent similar incidents;
2. To ensure compliance with the Workers
Compensation Act and OHSR Regulation
• Previously, one team with a dual purpose
now cut into Team A – “For Cause” and
Team B – “For Prosecution”
• In addition, WSBC has implemented and
trained officers in Major Case Management
Dual Team Approach Implemented in January 2015
27

Team B - “For Prosecution” Investigation
• This kind of investigation where penalty
may result in jail time requires:
– Full Charter protections
– Warrants executed by special
constables
– No compulsion of evidence
Special Considerations exist for Team B
28

Crossing the Rubicon
• In our view, where the predominant purpose of a particular
inquiry is the determination of penal liability, CCRA officials
must relinquish the authority to use the inspection and
requirement powers under ss. 231.1(1) and 231.2(1). In
essence, officials “cross the Rubicon” when the inquiry in
question engages the adversarial relationship between the
taxpayer and the state. There is no clear formula that can
answer whether or not this is the case. Rather, to
determine whether the predominant purpose of the inquiry
in question is the determination of penal liability, one must
look to all factors that bear upon the nature of that inquiry.
R. v. Jarvis, [2002] 3 S.C.R. 757 at paragraph 88.
• See also R. v. Ling, [2002] 3 S.C.R. 814
When is Team B be required?
29

WorkSafeBC’s New Approach
• If the Rubicon is crossed, Team B
essentially closes the WCB Act and
proceeds under Crown rules
• However, consistent with Jarvis,
evidence collected prior to crossing
the Rubicon by Team A can be used
against the Employer
Collection of Evidence
30

WorkSafeBC’s New Approach
• If criminal wrongdoing is suspected, Police will usually
maintain site from beginning but if criminal wrongdoing
is later suspected, WSBC will advise the Police.
• Don’t assume information is not shared.
• Beware and privy to MOU’s between WSBC and other
agencies.
• Always ask which team has been dispatched.
• Always document on what basis you are producing
information, and expressly state that information is
being compelled and on what basis.
• Stay ahead of knowledge curve.
Practice Tips
31

Employer Incident Investigations
1. Two phases of an incident investigation, where
previously there was a one phase model
2. Specific timelines for investigation report
completion, where previously there were none:
a) 48 hours for preliminary investigation report
b) 30 days for full investigation report
3. Investigation reports must now be prepared in
accordance with the OHS Policy* which
became effective January 1, 2016
* D10-175-1, D10-176-1, Prevention Manual
Three Major Changes Arising from Macatee’s Report
32

• After a s.173 incident, Employers must:
– Immediately undertake a preliminary investigation
into an incident as far as possible to identify any
unsafe conditions, acts, or procedures that
significantly contributed to the incident
– Determine the interim corrective action they plan to
take between the date of incident and the due date
for the full investigation report (within 30 days of
the incident)
– Without delay undertake any corrective action
determined to be necessary to prevent the
recurrence of similar incidents during this interim
period
The Preliminary Investigation, s. 175 WCB Act
33

• Preliminary investigation report must be
prepared within 48 hours of the incident
• Must also prepare an interim corrective
action report if action taken
• Give both reports to the joint committee or
worker health and safety representative as
soon as practicable or, if neither exists, post
in the workplace
• Both reports to WorkSafeBC upon Request
The Preliminary Report and Corrective Action Report
34

• Conduct a full investigation to determine the
causes, and identify unsafe conditions, acts, or
procedures that significantly contributed to the
incident
• Submit their full investigation report within 30
days of the incident to WorkSafeBC and the
joint committee, worker representative, or if
neither exist, post it at the workplace
• Prepare and provide a corrective action report
to the joint committee, worker representative, or
if neither exist, post it at the workplace
Full Investigation, s. 176 of WCB Act
35

WSBC’s New
Compliance
Powers
36

WorkSafeBC’s Compliance Powers
The new toolbox for enforcement:
1. Compliance Agreements
2. OHS Compliance Orders
3. Citations
4. Stop Work/ Stop Operations Orders
5. Administrative Penalties
6. Injunctions
7. Prosecution
37

Compliance Agreements
• A new voluntary alternative to an OHS
Compliance Order to address a violation
• WSBC must believe Employer can likely
fulfil agreement
• Not available if:
– high risk violations
– immediate risk to workers
– prior violation of same requirement in the past year
– cancelled compliance agreement within past three
years
What are they?
38

Compliance Agreements
• Benefits
– No orders for violation while CA in effect
– No retroactive orders upon successful
completion
• Considerations for Employers
– Must acknowledge the violation occurred
– Impact on compliance history is unclear
– How will CA’s be considered in a review of
Employer’s history?
• Alternative? Take an order and seek review
Least Onerous Enforcement Tool?
39

Citations
• New type of “fine” or “penalty” that WorkSafeBC
can use in circumstances that are not high risk
• Allows WorkSafeBC to penalize employers:
– who fail to comply with orders, or
– who fail to prepare or send a compliance report
• Goal is to increase timely compliance with
orders
• Currently, the first citation is $512.71,
subsequent within three years is $1,025.42
• These are Employer consequences – no
citations can be imposed on Workers
What are they?
40

Citations
• Prior to issuing an OHS Citation an
employer will always receive a
warning first
• The OHS Citation will be imposed as
soon as reasonably practicable, and
ordinarily within 7 days
Also known as ‘Non-compliance Citations”
41

Citations
• May see more warnings than
citations
• Criticized for allowing employers to
delay compliance with orders
• Concern about overreliance on
voluntary measures and warnings in
place of meaningful consequences
Query - How often will these be used?
42

Citations
• Filing a RFR does not stay the citation
• May be reviewing both citation and order for
same issue at the same time given the short
time frames
• Due diligence does not apply
• A Citation and a Penalty cannot be
substituted for each other, on review or
appeal
• Unlike Admin Penalties, Citations cannot be
appealed to WCAT: s. 239
On review and appeal
43

Stop Work/Operations Orders
1. A Lower threshold for issuing stop
work orders (previously required
immediate danger)
2. A Wider scope of stop work orders
(Stop Operations)
Two Major legislative Changes
44

Stop Work Order
• When a safety concern cannot be
quickly remedied and other measures
are insufficient to protect the workers in
that workplace
• SWO may apply to a workplace or any
part of the workplace
• Duration of the SWO will vary
depending on the circumstances (under
72 hours)
When are they used?
45

High risk of serious injury,
illness or death
(see Policy D12-196-2 for
meaning of “high risk”)?
Same or similar conditions at
other workplaces? And same
employer?
Stop
operations
Non-compliance with prior
order from violation +
same violation again and
risk of serious injury?
Stop
work
Yes Yes
Yes
46

Stop Work/Operations Orders
• Potential for significant impact on
businesses with multiple sites
– Discretionary calls of the OSO
– High cost to the employer as they must
continue to pay employees
• Potentially more difficult to impose in health
care where patient safety and care must
also be considered
• Due Diligence does not apply to SWO (See
R0197134 – Feb. 2016)
Anticipated Impact? More orders, more reviews
47

Let’s Chat
• Current Issues?
• Challenges?
• Questions?
48

Roper Greyell LLP
Employment + Labour Lawyers
1850-745 Thurlow Street, Vancouver, BC V6E 0C5
T 604.806.0922 F 604.806.0933 ropergreyell.com
The purpose of this presentation is to provide an overview of this area of the law. This does not by any means constitute a full analysis of the
law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed. © Roper Greyell LLP 2017
ALISSA I. DEMERSE 604.806.3857
ademerse@ropergreyell.com
J. NAJEEB HASSAN 604.806.3820
nhassan@ropergreyell.com

J. Najeeb Hassan
604.806.3820 | nhassan@ropergreyell.com
Najeeb* is a partner at Roper Greyell with a focus on
labour, employment and human rights law.
He brings a practical, common sense approach to
complex legal issues, providing strategic planning,
insightful advice and vigorous advocacy to prevent
and resolve conflict in the workplace. Najeeb
addresses his clients’ problems before they escalate,
demonstrating a creative, proactive approach to the
law, working collaboratively with clients if litigation
becomes necessary.
Representing public, private and First Nations clients
in the highway maintenance, automotive, hospitality,
gaming, retail, construction, mining, print,
manufacturing and health sectors, Najeeb assists
both union and non-union employers. He specializes
in certification and decertification of unions,
grievance and interest arbitrations, collective
bargaining, managing strikes and essential service
disputes, unfair labour practice complaints and other
matters arising under the Labour Relations Code.
Najeeb also provides exceptional representation in
the area of disability management, worker’s
compensation, human rights and wrongful dismissal
claims. His legal career includes serving as Vice-
Chair of the BC Labour Relations Board, where he
developed well-respected mediation and adjudication
skills. Najeeb also has extensive knowledge of the
health sector, having held several senior positions
with the Health Employers Association of British
Columbia, providing hands-on labour relations
advice.
Outside of the law, Najeeb enjoys hiking the North
Shore mountains (as well as Africa’s tallest) and
playing beer league hockey.
*Law corporation
Education
B.A, University of Western Ontario
LL.B, University of Victoria
Year of call
Ontario, 1991
British Columbia, 1995
Membership/Affiliations
Canadian Bar Association
Canadian Association of Counsel to Employers
(CACE)
BC Human Resources Management Association

Alissa Demerse
604.806.3857 | ademerse@ropergreyell.com
Alissa is a partner at Roper Greyell where she provides
practical and strategic advice to employers in all areas of
employment and labour law, including human rights law
and workplace safety matters.
Alissa is proactively involved in resolving disputes and
grievances in her clients’ unionized and non-unionized
workplaces. She is a tenacious and dedicated team
member who searches for the smart result for her clients
and this approach makes her an invaluable advisor to
many public and private sector employers in British
Columbia.
Alissa has extensive experience assisting clients with
workplace investigations including bullying and
harassment complaints and investigations, discipline
investigations, and WorkSafeBC serious injury and fatality
investigations. She regularly advises employers on
collective agreement interpretation and grievances,
drafting employment contracts and workplace policies,
employee discipline and termination decisions, managing
medical leaves and accommodation requests,
occupational health and safety prevention matters and
appeals, and critical incident management. She is known
to provide empathic leadership in times of crisis and is
focused on keeping her clients informed, organized and
prepared to avoid unnecessary litigation and disputes.
As a trusted advocate who represents employers in
complex hearings, Alissa holds an unparalleled ability to
distill the facts and focus on the relevant details for each
case and client. She appears as counsel at labour
arbitrations, the Labour Relations Board, the Workers’
Compensation Review Board and Appeal Tribunal, the
Employment Standards Branch and Tribunal, the Human
Rights Tribunal, Coroner’s Inquests and the courts.
Born in Kitimat, B.C., raised on Vancouver Island, and
with strong New Zealand roots, Alissa holds a passion for
the outdoors. She enjoys leading an active lifestyle,
including running, hiking and camping with her family and
friends.
Education
B.A., Criminology, Simon Fraser University
JD, University of British Columbia
Year of call
British Columbia, 2007
Membership/Affiliations
Canadian Bar Association
Canadian Association of Counsel to Employers
Employers’ Forum (OHS)
BC Human Resources Management Association
Vancouver Bar Association

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