Plight of the vulnerable worker

When it comes to workplace safety, all workers are not created equal. Some are at higher risk than others to suffer a workplace injury, illness or fatality. They are the vulnerable workers.

In a roundtable forum hosted by Canadian Occupational Safety, thought leaders from industry, labour, legal and academia gathered to discuss the challenges faced by vulnerable workers and offered up ideas on what’s needed to improve workplace protection.

Out with the old
Vulnerable workers have historically posed a significant challenge for employers, but the realities of today’s workplace make the issue even more pressing. Vulnerable workers are those whose nature of work or other variants put them at a higher risk of being injured on the job than regular workers. 
Today, it’s not just the nature of the job that is creating workplace vulnerability. A wide range of factors — age, newness to the job, language and cultural barriers, literacy and precariousness of work — are contributing to risks and the likelihood of injury.
“The issue with vulnerable workers has been there for as long as I have been in prevention — which is more than 12 years,” says Paul Casey of the Infrastructure Health and Safety Association (IHSA). The challenge today, he points out, is identifying who the vulnerable workers are.
Panelists say vulnerable workers today are those without a voice or who feel powerless to voice concerns about their safety at work for fear of repercussions. They are those who, because of newness to the job, language, literacy or cultural barriers, may not be aware of the hazards in the workplace or their rights as workers. 
The changing dynamics in the workplace adds to the rising concern around vulnerable workers.
According to McMaster University’s Wayne Lewchuk, the relationship between workers and employers has been changing over the past few years, with companies relying increasingly on temporary work agencies and short-term contracts to seek out workers.
This short-term relationship is creating vulnerability among workers as they find themselves often feeling powerless to raise concerns about workplace health and safety issues.
“There are potential costs to putting your hand up and saying, ‘I think this is a dangerous practice.’ You may not get your contract renewed,” Lewchuk says. “Sixty per cent of people who feel they’re exposed to toxic substances would be unwilling to raise that with the employer for fear of future implication, such as job loss.”   
Identifying worker vulnerability in the workplace means more than just assessing, identifying and controlling the physical hazards. Employers need to also look at other factors like demographics and literacy level of the workforce.
Ensuring that training programs are cognizant of and responsive to language and literacy problems, for example, is key.
It’s part of a conscious effort to make health and safety training at Workplace Safety and Prevention Services (WSPS) more effective, says Sandra Miller.
“We’re cognizant of (literacy levels) and try to figure out how to bring that into the workplace. How do we use different modes of delivery to reach vulnerable workers — whether it’s by age, by immigration, language challenges?” Miller says.
In-depth knowledge about vulnerable workers is limited and more research needs to be done in the area, according to the Institute for Work and Health’s Ron Saunders.
“Often, we identify (vulnerable workers) into groups — like young workers, new immigrants, temporary workers, older workers. And in at least some of those cases there is research linking people in those groupings being at greater risk than your average worker of injury,” Saunders says.
He believes, however, more research is needed to truly understand vulnerability in the workplace beyond just grouping workers into categories.
For instance, earlier studies showed young workers are more likely to be injured their first month on the job than the more senior workers. In fact, later studies by IWH scientists found the risk actually applies to new workers, not just the young ones.
“They found that really it wasn’t age; it was being new. It was people, regardless of age, who are in their first month on the job, having triple the injury risk than people who have been on the job for a year or more,” says Saunders.
He says research should focus on the underlying characteristics of the worker, the job and the workplace to really find out what are driving those risks and creating vulnerability.

Temp work woes

The increasing number of temporary workers in today’s workplace is another area that needs attention, panelists say.
Uncertainties in the economy during the last few years have led many companies to cut costs and streamline operations, leading to mass layoffs and even shutdowns. They have also gravitated towards temporary workers to satisfy short-term operational needs.
This trend is causing some health and safety issues for both the temp agencies and their client employers.
“I see a disproportionate number of accidents involving temp workers as compared to full-time employees,” says Landon Young, managing partner at Toronto law firm Stringer LLP. Young specializes in occupational health and safety laws.
The challenge for employers is in ensuring the competency of the temp worker is at a level the agency says it would be, Young says. When the client employer requires a forklift operator, for example, the expectation would be for the temp agency to send a competently trained forklift operator to the employer site.
In some cases, however, that supposedly trained operator would receive very little training from the temp agency and unfortunately, the employer often only finds out when there’s an accident.
“The employers are starting to understand more and more that under the Occupational Health and Safety Act, they have duties as an employer but there is still a lot of confusion out there and a lot of employers who, quite frankly, don’t understand the scope … and think the temp agencies are taking care of it,” he says.
The challenge for temp agencies, on the other hand, stems from the fact although temp workers are technically their employees they may have little to no control over what hazards they are exposed to at the client location.
Some temp agencies assume when their workers go to client employer sites they will be trained on the hazards and the company’s health and safety policies. In reality, this does not always happen.
The IWH recently led a focused study on low-wage temp agency workers and found, in certain cases, there was confusion as to whether the worker was trained or not, says Saunders.
In some instances, temp workers are sent out to do one job but once they reach the client site they’re asked to do another. This poses health and safety risks, particularly if the worker has not been trained properly on the new job.
Even when temp agencies and client employers fully understand what each other’s responsibilities are, the safety of the temp worker at the work site could still be in jeopardy.
“When individuals are at the site, it’s the supervisors — who are responsible for the safety of the workers — who really have no knowledge of who’s responsible,” says Colin de Raaf, director of Ontario training at the Christian Labour Association of Canada. “They know their own crew, the direct employees they’re responsible for, but now they have these temp agency workers and they just don’t know.”
The lack of knowledge about responsibilities on the job site is creating some serious gaps and putting workers in a vulnerable position. Supervisors have very specific obligations on injury prevention at job sites. Supervisor education and training needs to be part of the whole strategy to address vulnerability at work, de Raaf says.
The issue even gets more complicated when an injury occurs and compensation claim enters the picture.
“One of the questions that has been raised (in the IWH study) is: Does it make sense for the agency to be the ones paying workers’ comp premiums?” says Saunders. “There’s a question about whether that’s a sensible way to apply the responsibility given that it’s really the client who controls the workplace and not the agency.”
In Ontario, under the Occupational Health and Safety Act, there is a dual responsibility — both the agency and the client employer can be held responsible in case of an injury. However, under the Workplace Safety and Insurance Act, it’s the agency that is the “employer”.
There is the possibility of cost transfer, but it’s not the ideal solution to the bigger issue, says Saunders. Cost transfer is an option available to an employer (like the temp agency) to ask the compensation board to transfer the cost of a claim to a third party (like the client employer) if the employer proves due diligence on it’s part and negligence on the part of the third-party that caused the injury.

Immigrant front
Canada’s ballooning immigrant population has Canada’s ballooning immigrant population saw an increase of new immigrants entering the workforce, bringing in a new set of challenges for health and safety.
“When you are coming into a new country your past perceptions of law and rights may be very different when you join Canada than where you have immigrated from,” says WSPS’s Miller.
When new immigrants enter the workforce various factors come into play that affect their ability to raise concerns about health and safety at work. Even if they are aware of their rights as a worker and they are able to recognize a hazardous situation, factors like language barriers, cultural differences and job insecurity could still prevent them from speaking up.
Training and education programs should focus on not just awareness of the hazards and their rights as a worker, says Miller. “It’s the whole continuum of being aware, of being able to speak up and then what happens after that. Are we on the same plain when we have this conversation about speaking up and what’s going to happen to you (after speaking up)?”

The Ontario-commissioned expert review panel led by University of Toronto professor Tony Dean — tasked to recommend changes to improve the province’s health and safety enforcement and prevention system — outlined specific recommendations to improve the health and safety of vulnerable workers.
One of these recommendations calls for more proactive inspections and periodic enforcement campaigns at sectors where there are more vulnerable workers.
“If you can get data that can help you identify sectors or even specific workplaces where you know there’s a lot of vulnerable workers... there should be more proactive inspections in those cases,” Saunders says.

All or nothing
Under the “better protection for vulnerable workers” section of the Dean panel report, the panel recommends: the establishment of an advisory committee to provide advice on how to improve the system’s ability to respond to the needs of vulnerable workers; more proactive inspections and periodic enforcement campaigns at workplaces and in sectors where vulnerable workers are concentrated; developing information products in multiple languages and formats to raise awareness of occupational health and safety among vulnerable workers; and, developing regulations in consultation with stakeholders in the farming community to control the key hazards associated with farm work.
Although the Dean panel report recommends mandatory training for new workers and mandatory fall protection training for construction workers, it is not prescriptive of what these training programs would include. It’s important for the Ministry of Labour to develop standards for all training requirements to level the playing field, says IHSA’s Casey.
“Right now, it’s so easy for an employer to say or report that they have provided training, because (the requirements are) not prescriptive. But with standards, then at least, we would know that there’s a certain level of training that’s provided to everybody,” Casey says.
Supervisor training is also important, says Miller. “The supervision of incoming workers is a huge issue and we know it to be a huge area of empowerment to make a change. Making sure that you have competent supervision…that can make a huge difference to someone coming in to a new workplace, who needs to be able to ask questions — and ask questions to someone they can trust. And the first person you hope to trust is your supervisor,” she says.
Employers also need to play their part in ensuring their workplaces are not creating workplace vulnerabilities, by developing healthy and safe business relationships with suppliers and service providers.
Hiring or partnering with companies that can demonstrate good corporate governance, especially in occupational health and safety, can help drive down the underground economy, which are often putting workers at greater risk.
“The government, the Ministry of Labour will enforce — and they can do that — but they are limited. So, unless people start taking responsibility from a business perspective…then things won’t change,” says Casey.
It also helps for employers to make sure they do their homework when hiring people who may fall under the “vulnerable workers” category, says Stringer’s Young.
When hiring temp workers, for example, employers should ensure they have clearly defined with the temp agency what their expectations are in training, skill level and competency of the workers.
Recognize also, that once the temp workers start work at the employer’s site, the client employer assumes the responsibility of an employer to the temp worker under occupational health and safety laws. This means employer has to provide competent and ongoing supervision, Young says.