Importance of Documentation Demonstratin g Due Diligence concept application defense
What is the standard of “DUE DILIGENCE”? l To take all reasonable care to protect the health and safety of employees or co- workers
How do you meet the standard of “DUE DILIGENCE”? l Take all reasonable precautions in the circumstances to carry out your work l Commonly shown by evidence that certain procedures were carried out l Liability arises for failure to take reasonable care
What is the defense of due diligence? In prosecutions for violations of safety and health laws, the prosecutor need only prove the doing of the prohibited act (strict liability) To be successful in a defense of due diligence you must show you have taken all the precautions that a reasonable and prudent person would take in the same circumstances
Is the WCB required to recognize such a defense?. l The courts recognize a defense of due diligence l The WC Act also recognizes a defense of due diligence for the applications administrative penalties l Under Bill 63, WCB officer will issue the penalty order
Question What is the key to a safe workplace, and a defense of due diligence? An effective and well communicated Safety and Health Program
How does the WCB apply Due Diligence to sanctions? WCB officers must consider many factors to determine whether an employer took reasonable precautions in the circumstances. l Whether violation occurred l Degree of hazard l If regulations were deliberately violated l If the employer has a complacent attitude about compliance l Employers past history
How does the WCB apply Due Diligence to sanctions? l adequacy of the employers OSH program, and evidence it is in compliance with Act & regulations l the extent to which the employer was aware or should have been aware l independent action of properly instructed, trained & supervised worker (knowledge & ability) l disciplinary policy and practices for workers, supervisors, and managers for non compliance
When does WCB consider prosecution? Prosecution of employers, supervisors, and workers is considered when: l Violations could or did result in death or serious injury of a worker. l Employers knowingly or recklessly expose workers to significant hazards. l Workers continue to be exposed to a hazard despite repeat orders, warning letters, or penalties l WCB officers are deliberately obstructed.
Why is the OSH program critical to establishing due diligence? l Because you are able to prove the elements of the program are working and effective. l Remember -- the greater the risk, the greater the need for specific policies, practices and other measures to control hazards.
Why is documentation important? l records prove your program has been implemented. l Records also provide a history of activities, and evidence your program is working. l due diligence only applies if your program has been implemented, and your written rules and procedures are understood, and followed by workers.
What kinds of records? l worker orientation records l worker and supervisor training, including date, attendance and general content l records of meetings and crew talks l accident investigations l supervisor’s notes and logs of safety contacts with workers l disciplinary action records l joint committee minutes
What kinds of records? l subcontractor prequalification documents l management meeting minutes l equipment log books l safe work procedures (regulatory & supplemental - based upon hazard assessment l hearing tests & first aid records l Air testing results l Respirator fit tests
So how do you implement due diligence at your work site? l Policies, practices & procedures l Monitor & ensure effectiveness of policies & procedures l Identify & communicate hazard information l Review OSH Program elements for effectiveness l On-going training & supervision of workers l Disciplinary process l Incident investigation & reporting
If an employer can prove that a worker attended a training session, why should the employer be held responsible? l does attended mean understand & able to apply? l competency based training - e.g. worker demonstrates ability/quiz l understanding cannot be proven without adequate supervision & work practice inspections
Use of common sense should be good enough! l you must bring risks to the attention of workers under your supervision l even if the hazard is obvious to you l effective supervision is a key element of due diligence
The test of due diligence! l6l6 convictions l1l17 currently being processed lClClear direction
Responsibility I wondered why Somebody didn’t do something? Then I realized I am that Somebody