An interview with Katherine Lippel on the TV show Community Conversations. As you may know, Katherine is a professor at the University of Ottawa and the distinguished research chair in occupational health and safety law. She has been involved for more that 40 years and is a friend to workers and supporter of workers rights.
By Sara Mojtehedzadeh – Work and Wealth Reporter – Sat., Dec. 19, 2020
More than 7,600 workers have contracted COVID-19 on the job, prompting thousands of workplace safety inspections across the province. But since the start of the pandemic, the Ministry of Labour has issued just two fines — one of them to a worker.
Ministry inspectors have conducted over 31,500 field visits checking for pandemic precautions. They issued about the same number of health and safety orders, which identify workplace violations and require employers to address them.
But only one employer has faced any kind of financial penalty for breaking workplace safety laws and none have faced serious prosecution, data requested by the Star shows — even though occupational health experts and labour advocates say these deterrents are critical to protect vulnerable workers.
That task is particularly urgent in light of new data from the Ontario Health Coalition showing that workplace outbreaks, especially in industrial settings, now “far outpace the spread in the general public.”
“In the current environment, external inspection and enforcement is absolutely crucial,” said Eric Tucker, a professor at York University’s Osgoode Hall Law School who has written extensively on safety regulation and employment standards.
“When you’re dealing with workers in vulnerable positions, in precarious forms of employment, they are not going to be able to secure the rights the law grants them. And all too often employers will not be providing them with the level of protection they’re required to provide.”
In a statement to the Star, spokesperson Kalem McSween said the Ministry of Labour “investigates every complaint related to workplace health and safety we receive, to provide support, advice and enforcement where necessary.”
“The ministry is working closely with the Ministry of Health and Public Health Ontario to monitor the status of COVID-19 and to provide support, advice and enforcement as needed to ensure the health and safety of Ontario’s workers.”
“The Ministry of Health is the lead ministry for providing direction and guidance regarding provincial emergencies related to communicable diseases,” the statement said, adding that “multi-ministry” inspections have issued 27 tickets for failing to meet public health requirements under the Reopening Ontario Act.
Enforcing workplace safety laws specifically is an “integral” infection control measure, according to the SARS Commission tasked with investigating the province’s response to the 2003 epidemic. That report described the Ministry of Labour’s “sidelined” role as a key failing during the deadly outbreak.
“The evidence reveals widespread, persistent and ingrained failures by the health-care system to comply with, and by the Ministry of Labour to enforce, Ontario’s safety laws,” the commission headed by Justice Archie Campbell found.
“We must do better next time. The only way to do better is to ensure that the Ministry of Labour is in a position to oversee and enforce, as aggressively as required, Ontario’s safety standards.”
Deena Ladd of the Toronto-based Workers’ Action Centre called the ministry’s COVID-19 record “shocking.”
“The ministry is obviously not using the powers and the tools that they have to enforce and to send a strong message to employers that they can’t mess around on this,” she said.
“When you’re looking at health and safety, you’re actually looking at people’s lives.”
In September, the ministry announced it would hire 100 more health and safety inspectors to cope with the demands of COVID-19 and “build the largest workplace safety inspectorate in Ontario’s history.”
But workplace protections have remained a critical flashpoint: a new survey from the Institute for Work and Health shows half of essential workers reported inadequate infection control on the job.
In October, the ministry issued a fine to a teacher who tested positive for COVID-19 but failed to wear a face mask. The so-called “Part I ticket” carries a maximum penalty of $1,000. In November, it issued another ticket to a trucking company for violating workplace safety requirements.
The ministry has not launched any serious prosecutions over COVID-19 lapses, which can come with jail time for individuals and maximum fines of $1.5 million for companies. Serious prosecutions are usually considered when a worker has died or been critically injured as a result of a health and safety violation, and can sometimes take months to initiate. While inspectors can recommend laying charges after identifying violations, the decision rests with the ministry’s legal services team, who must weigh the public interest of the case and the likelihood of conviction.
So far, 23 people have died as a result of work-related COVID exposures, according to data from the Workplace Safety and Insurance Board.
Ontario Federation of Labour president Patty Coates said there were “glaring shortfalls” in the ministry’s enforcement strategy.
“It’s their legal mandate to ensure workers are in safe workplaces,” she said. “Inspectors are workers, too, and they go into these workplaces and see what is happening … they must have full authority and approval to enforce the (health and safety) act.”
The data obtained by the Star shows that between March and October, the ministry’s 13,500 proactive field visits focused heavily on precarious sectors: those reliant on migrant workers, the underground construction economy, meat packers and temporary employment agencies. The ministry also conducted 10,300 reactive field visits responding to COVID-19 complaints or concerns raised by workers or employers.
The Star asked the ministry to provide the names of the 20 employers that received the highest number of health and safety orders during that period. Sienna Senior Living, which was issued 27 orders, was the only long-term-care provider on the list. Other than a poultry processor and a hand sanitizer manufacturer, the rest of the workplaces were construction companies.
While construction is a high-risk industry even outside an infectious disease outbreak, the workers most likely to contract COVID-19 on the job during the pandemic’s first wave were those in long-term-care homes, farms, hospitals and food processors, according to the number of accepted compensation claims at the WSIB. Claims are accepted if the board determines the individual’s workplace was a “significant contributing factor” to getting sick.
Tucker described the lack of orders issued in high-risk workplaces as “surprising.”
“You would have thought that in those congregate settings where you have people together in close proximity … will be where you would see the greatest number of violations,” he said.
Mario Possamai, former senior adviser to the SARS Commission, said the “continued sidelining of the Ministry of Labour” is an “ongoing feature of COVID-19.”
“I am troubled because it appears that post-SARS problems identified by Justice Campbell were not addressed,” he said.
According to the Ontario Health Coalition report released this week, the manufacturing sector saw the largest increase in cases between mid-November and early December, with a 77 per cent spike. By contrast, the increase among the general population over the same period was 22 per cent.
Focusing ministry inspections on precarious workplaces is an important step because vulnerable workers are less likely to be able to enforce their workplace rights, said Ladd. But part of strong enforcement is effective deterrence, she added.
“Laws need teeth,” she said. “We all know if we get a parking ticket, we’d better pay it because we’re not going to get our licence plate renewed. That is effective enforcement.”
In December 2019, just months before the pandemic gripped the province, the auditor general issued a similar warning. It found that while employers bear the most legal responsibility for workplace safety, the bulk of the ministry’s fines went to individual workers and supervisors.
“The ministry’s enforcement efforts are not preventing many employers from continuing the same unsafe practices,” the auditor general’s annual report said, noting that many employers were ordered to fix the same hazard year after year.
“Coming out of the pandemic, there’s going to be this push and pull around giving businesses a break because they’ve suffered a lot during the pandemic,” said Ladd.
“But what is fundamentally not negotiable are the conditions that allow people to be safe at work — to be able to go home at night and not put their lives on the line.”
WorkSafe2: Follow-up investigation into the management of complex workers compensation claims
FROM OMBUDSMAN AUSTRALIA WORKSAFE2 – Follow up Investigation. From the evidence in this report, it would appear that my 2016 investigation only scratched the surface. New issues were also identified in the files we reviewed, and confirmed in interviews, including the use of surveillance without adequate justification. Such an invasion of people’s privacy is only permitted if there is some evidence of worker dishonesty, but we found numerous examples of surveillance being used without a shred of evidence to justify it. Take the case of Sophia, an aged care worker, who had injured her back at work. The agent used surveillance to check her mobility. Even though the surveillance report confirmed she walked with a limp throughout, the agent considered extending it. The surveillance must have been intrusive, as Sophia asked the agent if they were doing it. Even more troublingly, the agent denied it and told her if she had concerns about being followed she should go to the police. We also saw significant evidence of unfair return to work practices: many requiring a worker to attend occupational rehabilitation in wholly unsuitable circumstances, such as the man experiencing severe psychotic hallucinations, or the homeless man in hospital after attempting self-harm, and whose non-compliance notice was sent to the residential address he had been obliged to leave despite knowing he was homeless. “For the injured worker, it’s like a court. They’re traumatised, they’re stressed … they’re the only person in the room not paid to be there …” Conciliation Officer The workers affected in the cases we reviewed included nurses, teachers, police officers, aged care and childcare workers, truck drivers, baggage handlers and tradesmen. The emotional toll was unequivocal; the cost not only to them and their families, but to society, should not be underestimated. Many of the decisions and actions we saw were not only unjust, unreasonable and wrong. Some were downright immoral and unethical.
There is a free webinar scheduled for August 27th on return to work and mental health. Everyone is welcome, but they need to register. Here is the direct link to the webinar and the guides that will be discussed at that time.
Next Tuesday, John McKinnon, IWC, will be leading the session on Injured Workers turning 65, regarding loss of income and poverty. John is a lawyer at Injured Workers Community Legal Clinic with decades of experience in Workers’ Comp Law.
We will also look at ONIWG’s Workers Comp Is a Right campaign, which is celebrating its 3rd anniversary in September. We continue to fight for an end to deeming and pre-existing health conditions and the need to listen to treating physicians.
The Thunder Bay & District Injured Workers Support Group (TB&DIWSG) is pleased to announce their partnership with the United Steelworkers Family and Community Education Fund (FCEF) in coordination with Northwestern Ontario Steelworkers Area Council in the sponsorship of our weekly legal education and support group sessions online until December 1st.
Please note that we will be setting up a new session so the sign-in info will change, beginning September 1st.
Everyone is invited to attend. We hope to see you on Tuesday. Janet PatersonPresidentThunder Bay & District Injured Workers Support Group Ontario Network of Injured Workers Groups (ONIWG) Janet Paterson is inviting you to a scheduled Zoom meeting. Topic: My MeetingTime: Aug 25, 2020 10:00 AM Eastern Time (US and Canada) Every week on Tue, until Aug 25, 2020, 1 occurrence(s) Aug 25, 2020 10:00 AMPlease download and import the following iCalendar (.ics) files to your calendar system.
Weekly: https://zoom.us/meeting/tJUtcOGtqT4qEtWRydDXztXwePqG7HTw6Dqi/ics?icsToken=98tyKuCprjwiH9OQsBGGRowcAo_CWe_wtiVfj7dqrgbhJxhJdjvhM9JTFeVXJM-G Join Zoom Meetinghttps://zoom.us/j/91078575081?pwd=cm5nRVRQMEcvNU9PWmgzQXBGY0toZz09 Meeting ID: 910 7857 5081Passcode: 279030One tap mobile+16473744685,,91078575081#,,,,,,0#,,279030# Canada+16475580588,,91078575081#,,,,,,0#,,279030# Canada Dial by your location +1 647 374 4685 Canada +1 647 558 0588 Canada +1 778 907 2071 Canada +1 204 272 7920 Canada +1 438 809 7799 Canada +1 587 328 1099 CanadaMeeting ID: 910 7857 5081Passcode: 279030Find your local number: https://zoom.us/u/acURTh2YZu
WorkSafe2: Follow-up investigation into the management of complex workers compensation claims
OMBUDSMAN AUSTRALIA WORKSAFE2 – Follow up Investigation.From the evidence in this report, it would appear that my 2016 investigation only scratched the surface. New issues were also identified in the files we reviewed, and confirmed in interviews, including the use of surveillance without adequate justification. Such an invasion of people’s privacy is only permitted if there is some evidence of worker dishonesty, but we found numerous examples of surveillance being used without a shred of evidence to justify it. Take the case of Sophia, an aged care worker, who had injured her back at work. The agent used surveillance to check her mobility. Even though the surveillance report confirmed she walked with a limp throughout, the agent considered extending it. The surveillance must have been intrusive, as Sophia asked the agent if they were doing it. Even more troublingly, the agent denied it and told her if she had concerns about being followed she should go to the police.We also saw significant evidence of unfair return to work practices: many requiring a worker to attend occupational rehabilitation in wholly unsuitable circumstances, such as the man experiencing severe psychotic hallucinations, or the homeless man in hospital after attempting self-harm, and whose non-compliance notice was sent to the residential address he had been obliged to leave despite knowing he was homeless.“For the injured worker, it’s like a court. They’re traumatised, they’re stressed … they’re the only person in the room not paid to be there …”Conciliation OfficerThe workers affected in the cases we reviewed included nurses, teachers, police officers, aged care and childcare workers, truck drivers, baggage handlers and tradesmen. The emotional toll was unequivocal; the cost not only to them and their families, but to society, should not be underestimated. Many of the decisions and actions we saw were not only unjust, unreasonable and wrong. Some were downright immoral and unethical.
Here’s an excellent article by Sara Mojtehedzadeh and Jennifer Yang focusing on a major COVID-19 outbreak in an industrial bakery in Toronto. They use this story to illustrate the woeful lack of consistent data on workplace outbreaks, plus the apparent massive under-reporting to MOL and WSIB.
The article also highlights the vulnerability of the workers in these types of workplaces, including temporary agency workers in particular.
More than 180 workers at this Toronto bakery got COVID-19 — but the public wasn’t informed. Why aren’t we being told about workplace outbreaks?
July 23, 2020
Workers and family members affected by occupational cancers are not surprised by the Demers report findings that well over 90% of occupational cancers are unrecognized and uncompensated by the WSIB every year. Only a fraction result in WSIB claims, and more than one-half of those claims are denied, very often based on technicalities that are not supported by legal principles or medical science. The Demers report also showed that Ontario is recognizing far less occupational cancer than a number of European countries such as Germany.
“This is an urgent situation. It has devastating consequences for the affected workers and their families, many of whom end up on social assistance. It also imposes very significant costs on the taxpayer which should properly be paid by employers through the WSIB. The WSIB must take action immediately,” said Ontario Federation of Labour President Patty Coates.
By Labour Day, WSIB must implement policy recommendations regarding the adjudication of cancer claims involving exposures to multiple carcinogens and begin a review of all previously denied occupational cancer claims. The provincial government must also add to the schedules under the Workplace Safety and Insurance Act all of the carcinogens identified by the International Agency for Research on Cancer (IARC) as carcinogenic to humans. In the longer term, the government must move beyond the scope of Dr. Demers’ mandate to restore an independent Occupational Disease Panel and require the WSIB to apply standards set by the Panel when adjudicating disease claims. It must also fully fund the Occupational Health Clinics for Ontario Workers to provide timely investigations of occupational disease clusters at the request of workers and surviving family members.
“Failure to recognize occupational diseases not only harms those workers making claims, it harms future prevention efforts,” said Coates.
The Demers report was first promised by the outgoing Liberal government in the spring of 2018, following years of activism by workers and family members affected by the extensive confirmed carcinogenic exposures at the GE Peterborough facility. The current PC government followed through on that promise only in January 2019, after renewed activism by former Kitchener area rubber workers and their families highlighted that the WSIB remains completely out of step with advances in scientific research.
In the meantime, including the last six months while the report sat on a shelf at the Ministry of Labour, hundreds of workers have received WSIB denial letters for new and reconsidered occupational cancer claims that include the promise of another review after the release of the Demers report.
“It is now clear from the report itself that hundreds, even thousands, more claims have been unjustly denied in the past and require urgent review,” said Coates. “The WSIB must act immediately on the recommendation to create new policies addressing exposure to multiple carcinogens in the workplace and the interaction between occupational and non-occupational exposures.
The WSIB has long pretended that “lifestyle” issues like smoking, alcohol and obesity somehow magically counteract workplace carcinogens, despite scientific findings that multiple carcinogens nearly always act together, sometimes synergistically. The same goes for a “family history” of cancer, which with very few exceptions must be considered nothing more than one factor in a complex picture, interacting with exposure to carcinogens. The WSIB must stop looking for easy “either-or” technicalities and start dealing with the complex realities of “both-and”.
By Labour Day, the WSIB can and must put Interim policies addressing multiple exposures and the interaction of occupational and non-occupational causes into the hands of its adjudicators, and suspend all existing policies on individual diseases with inappropriate treatments of these issues and other arbitrary considerations such as specified latency periods between exposures and the onset of disease.
And finally, the provincial government must also add all of the carcinogens identified by the IARC as carcinogenic to humans to the schedules under the Workplace Safety and Insurance Act (WSIA). These are known as IARC Group 1 carcinogens. Many of these substances have been known to be carcinogenic for literally decades and yet never added to the WSIB’s schedules. This action does not require a legislative amendment. The provincial cabinet can do this simply by amending the regulations to the WSIA.
The Board must review all previously denied cancer claims in light of these new policies and overturn decisions that failed to properly address multiple carcinogens in the workplace, or to recognize the interaction rather than competition between occupational and non-occupational factors or which have been invalidated by new research.
This process cannot wait for the rebuilding of scientific and medical capacity at the WSIB and Ministry of Labour recommended by the report. Clear errors can and must be corrected without further delay, and the identification of outstanding issues raised by these reports of occupational cancer from Ontario workers must direct the future use of that renewed capacity. Failure to recognize occupational diseases not only harms those workers making claims, it harms future prevention efforts.
In the longer term, regulation- and policy-making must change in ways beyond anything contemplated by Dr. Demers’ mandate from the Ministry. The WSIB’s terrible performance results from the tangle of conflicting statutory duties and political interests created by its roles as legislator, adjudicator, benefit and service provider, revenue collector and investment fund manager. Ontario must restore a fully funded, independent Occupational Disease Panel with worker, employer and scientific representation, focussed exclusively on establishing fair criteria for evaluating compensation claims. This Panel must have clear, exclusive jurisdiction to establish those criteria, with the WSIB bound to implement them. The Board can no longer be allowed to make up its own rules as it goes along.
The same goes for the investigation of cancer clusters. Neither the Board nor the Ministry can be trusted to handle what are effectively complaints about the failure to prevent occupational cancers in a particular workplace or industry or to fairly compensate affected workers who have come forward on an individual basis. Historically, scientific and medical resources of both Board and Ministry were often wasted, as in Peterborough, in efforts to convince workers and families that they should not believe their eyes, that cancer clusters did not exist, were not as big as they seemed, or when looked at case-by-case by the WSIB were not caused by exposures in the workplace. In other cases, such as silicosis or cancer in Elliot Lake uranium miners or asbestos workers in Sarnia, information about disease clusters confirmed and documented by Ministry scientists was more likely to be shared at international scientific conferences or in journal articles than with the affected workers, their doctors and unions.
In these instances and many more, those directly affected have turned to the Occupational Health Clinics for Ontario Workers (OHCOW) for independent occupational hygiene and medical assessments of workplace exposures and their relationship to cancers and other diseases. Workers deserve independent assessments of suspected clusters and their own individual health conditions as a matter of basic health care, provided as a professional service directly to them and not exclusively as a sidelight of the commercial, legal and political projects of employers, politicians and bureaucrats.
OHCOW is the only actor in the health and safety system that has the expertise and credibility with workers to pursue investigations of occupational disease clusters, but is not fully funded to respond quickly and comprehensively. That needs to change and change fast.
The Ontario Federation of Labour represents 54 unions and one million workers in Ontario. For information, visit www.OFL.ca and follow @OFLabour on Facebook and Twitter.
Study on aluminum powder in miners confirmed link to Parkinson’s in May
by Lindsay Kelly, Northern Ontario Business