Friday, May 3, 2013

Refusing unsafe work in Alberta

When workers refuse unsafe work in Alberta, the Occupational Health and Safety Act first requires the employer to investigate. The worker can then appeal to an OHS officer and, ultimately to the OHS Council. I don’t have any stats on refusals in Alberta, but my sense is that they are rare and appeals to the OHS Council are rarer. For that reason, decisions by the Council on right to refuse disputes make interesting reading. I don’t believe this decision is posted yet but you can often find them here

An April 10, 2013 decision examines a January 2011 refusal of unsafe work by nurses in Grande Prairie for which they were disciplined by Alberta Health Services (looks like a suspension and letter of reprimand—a bit hard to tell). For those from out of province, Alberta’s OHS Act requires workers to refuse unsafe work, rather than simply giving them the right to do so. Workers who fail to refuse can be punished under the OHS Act with fines up to $500k or 6 months in the clink for a first offense!

The facts are that the patient was “certified” under the Mental Health Act and had previous injured security staff during a January 12 visit (while being taken down). The door to the “seclusion room” was apparently “kicked out” by the patient during a January 15 visit (he would have escaped if nurses hadn’t braced the door against him with their bodies) and he threatened to kill the staff. Further, the emergency button to summon help was not well located. The security guards had inconsistent training and abilities to subdue the patients. And there were also no restraints in use or places to lock the restraints to.

The upshot is that the nurses were concerned the patient posed a danger to other patients in the wing as well as to themselves. So, they hustled all of the other patients out of harm’s way, continued to nurse them, and refused to work with the patient they deemed to be a threat.

The Council determined that the employer did not assign additional security personnel immediately or consistently. The employer also failed to make the required written record and provide it to the nurses. Indeed, there was no policy on work refusals. The supervisor had no advice for the nurses about how to handle the patient and threatened to report one of them to her professional association if the nurse refused unsafe work.  Eventually, the employer sedated the patient, added three (or four or five, depending on who you believe) security staff, and transferred the patient out of the facility.

The discipline apparently flowed from a continued refusal to work because the employer had not followed through on its legislated requirements to investigate and inform the employees about what the employer did to control the hazard (I’m paraphrasing a bit). Basically, the workers couldn’t be sure the work was safe because the employer pooched the investigation so they continued to refuse and got disciplined for it.

The OHS Council overturned the discipline (two years later). This decision shows us several things:
  1. Even employers with sophisticated OHS capacity can have unsafe workplaces, fail to take effective action on serious workplace hazards, and persecute workers facing imminent danger. Alberta Health Services (AHS) is the largest employer in Alberta. If AHS cocks things up so badly, what kind of OHS infrastructure can we expect the 56% of Alberta employers with fewer than 5 workers have?
  2. Workers who exercise their right to refuse (action the OHS Act compels them to take under threat of imprisonment) can face discipline from their employer for complying with the law. Non-unionized workers would be unlikely to have the resources necessary to fight their employer. How effective can we expect OHS Act to be if basic safety rights are disrespected by the employer and the officer’s investigation is in error?
  3. At one point, the employer argues that the conditions faced by the nurses were normal aspects of their employment as psych nurses thus they had no right to refuse. There is some superficial truth to this—psych patients can be a handful. Yet can the purpose of the OHS Act possibly be to compel these workers to perform duties while being threatened with death by a mental patient with a pattern of violence in a workplace with no reasonable security precautions? Obviously not.

An interesting example of why worker safety rights, while important, are weak rights. They are hard and dangerous for workers to exercise, which means workers will often trade off their safety against the spectre of punishment by the employer.

-- Bob Barnetson

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