Katherine Lippel

Telework and occupational health: a Quebec empirical study and regulatory implications

This article addresses occupational health issues associated with home based telework. Relying on a literature review, an overview of empirical research and the results of six case studies conducted within Canadian-based organisations, the authors present findings from an interdisciplinary perspective that takes into account the social, ergonomic and regulatory issues relevant to health and safety of teleworkers. The case studies as well as the literature review showed that home based telework is generally seen by workers as having a positive effect on their health, although potential problems arising from work station design, long hours and isolation were identified. The analysis of the legal framework governing OHS of teleworkers in Quebec showed that most legislation theoretically applied to teleworkers, but there was some concern as to whether protective provisions governing prevention and compensation for injury were effectively applied to home based telework.

Falling through the Legal Cracks: The Pitfalls of Using Workers Compensation Data as Indicators of Work-Related Injuries and Illnesses

Abstract Workers compensation statistics are often used to define prevention priorities in occupational safety and health. In this paper we address this issue from a legal perspective. We examine legal and social factors that can make the costs of work-related illnesses and injuries appear less dramatic than they really are, or even disappear altogether. These factors include limited coverage of some sectors of the labour market and certain types of employment injury, low initial acceptance rates of claims for certain kinds of injury and illness, a failure to claim by certain categories of worker and a failure to adequately compensate certain categories of claimant. We illustrate how these factors have a particularly negative effect on women workers as well as on precariously employed workers. The conclusions outline the relevance of our findings for both researchers and policy-makers.

Public Insurance Systems: A Comparison of Cause-Based and Disability-Based Income Support Systems

This chapter examines eight disability insurance systems, four cause-based systems, and four disability-based systems, in order to draw attention to the importance of system rules as contextual factors in the return-to-work process affecting people with work disability. Part 1 looks at workers’ compensation, no-fault automobile insurance, crime victims’ compensation and accident compensation, four cause-based systems, and draws on examples from Canada, the United States, Australia, and New Zealand. Part 2 looks at the situation in four European countries, where sickness and disability insurance are available: the Netherlands, Sweden, France, and Italy. This chapter draws attention to regulatory factors that can either promote or hinder return to work, and explains how cause-based systems introduce obstacles that limit the system’s ability to support workers in the return-to-work process because of the need to prove causation of disability to justify interventions. It examines various regulatory incentives for promoting return to work in different jurisdictions and concludes by underlining the importance of considering specific system effects, acknowledging that each system is different and has its own positive and negative effects on the worker and the work environment. These issues will have repercussions both for the design of a study in a given jurisdiction or for the development of a disability prevention practice.

The ideal of consumer choice in social services: challenges with implementation in an Ontario injured worker vocational retraining programme

Abstract Purpose: Social service programmes that offer consumer choices are intended to guide service efficiency and customer satisfaction. However, little is known about how social service consumers actually make choices and how providers deliver such services. This article details the practical implementation of consumer choice in a Canadian workers’ compensation vocational retraining programme. Method: Discourse analysis was conducted of in-depth interviews and focus groups with 71 injured workers and service providers, who discussed their direct experience of a vocational retraining system. Data also included procedural, policy and administrative documents. Results: Consumer choice included workers being offered choices about some service aspects, but not being able to exercise meaningful discretion. Programme cost objectives and restrictive rules and bureaucracy skewed the guidance provided to workers by service providers. If workers did not make the “right” choices, then the service providers were required to make choices for them. This upset workers and created tension for service providers. Conclusions: The ideal of consumer choice in a social service programme was difficult to enact, both for workers and service providers. Processes to increase quality of guidance to social service consumers and to create a systematic feedback look between system designers and consumers are recommended. Implications for Rehabilitation Consumer choice is an increasingly popular concept in social service systems. Vocational case managers can have their own administrative needs and tensions, which do not always align with the client’s choices. Rehabilitation programmes need to have processes for considering what choices are important to clients and the resources to support them.

The private policing of injured workers in Canada: legitimate management practices or human rights violations?

Abstract This paper examines the use of private surveillance services in the context of workers’ compensation in Canada. Injured workers are now subject to clandestine surveillance by private investigators employed by employers and, in some provinces, by the workers’ compensation board itself. Surveillance is used not only to detect cases of fraud, where workers are receiving compensation benefits for temporary disability while performing undeclared work, but also to prove that workers are performing tasks of daily living that are incompatible with their functional impairment. The paper illustrates different situations in which such techniques are used and addresses some of the social and legal implications of these practices. The paper relies on interview data as well as traditional legal analysis. The legal issues to be addressed include those relating to privacy rights guaranteed both by human rights legislation and the Quebec Civil Code, Charter issues, including issues as to the admissibility of evidence, and finally issues regarding liability for damages resulting from the surveillance. In conclusion, the paper suggests that the use of surveillance techniques in the context of social security legislation not only represents, in many cases, a violation of fundamental rights, but also contributes to the stigmatisation of all injured workers and constitutes an impediment to successful and rapid rehabilitation from injury. The influence of economists and their concept of ‘moral hazard’, which promotes system design that discourages reliance on benefits, is seen as a possible explanation for the apparent tolerance of practices that would be judged illegal in other contexts.

Preventive Reassignment of Pregnant or Breast-Feeding Workers: The Québec Model:

This article examines the Québec legislation regarding the preventive reassignment of pregnant or breast-feeding workers, a program designed to enable pregnant workers to obtain safe work or paid leave during pregnancy. The author describes the program, considers the role of treating physicians and public health physicians in its application, and concludes with an analysis of its qualities and drawbacks. Conclusions are based on the analysis of 349 Appeal Tribunal decisions representing all final appeal decisions relating to the program that circumscribe conditions of application, particularly in relation to definition of hazards and the role of doctors in adjudication. Although this program is currently unique in North America, the author suggests that it may serve as a model for other jurisdictions, providing a progressive alternative to traditional fetal protection policies.

Legal protections governing the occupational safety and health and workers’ compensation of temporary employment agency workers in Canada: reflections on regulatory effectiveness

Abstract This paper examines the effectiveness of occupational safety and health and workers’ compensation legislation in Ontario and Quebec when temporary employment agencies (TEAs) are involved in the employment relationship. Relying on a comparative approach using classic legal analysis and interview data, the paper identifies specific mechanisms by which the legislation succeeds or fails to protect temporary employment agency employees. Issues of importance with regard to workers’ compensation stem in large part from the nature of the triangular employment relationship, but are also attributable to the specificities of working on-call in a variety of locations and the vulnerability of workers hired through temporary employment agencies. Accidents may be more likely to go unreported for a variety of reasons, while the cost of compensation may be lower because benefits depend solely on pre-injury earnings rather than on the impact of the injury on earning capacity. This, in turn, affects incentives for employer participation in return-to-work programmes and undermines the rationale for ‘experience rating’. The primary challenges regarding the prevention of injury and disease affecting workers placed by temporary employment agencies arise because of disorganisation associated with triangular and cascading employment relationships, which makes it difficult to ensure the adequate training of workers, the provision of appropriate safety equipment and adequate representation in joint health and safety committees. At best, temporary agencies inspect workplaces before placing workers, yet they are ill equipped to identify hazards and have little control over the work required of the worker. The use of temporary agency workers is attractive to client employers because they thus avoid the costs of compensation and the unpleasantness associated with the aggressive contesting of claims. In Ontario, prevention strategies are still required of client employers because both the client and the agency may be liable for occupational health and safety violations. This is less clear in Quebec, although client employers may sometimes be held accountable through experience rating. The Ontario occupational safety and health legislative framework, as applied by the regulators and the courts, is more likely than the Quebec framework to meet at least some of the occupational safety and health needs of workers employed by temporary employment agencies. However, the Quebec workers’ compensation framework meets more of the workers’ compensation needs of temporary employment agency workers than that of Ontario. In both provinces, legislative reform could improve the scope and effectiveness of the legislation, and this paper includes detailed recommendations in this regard.

Workers’ Compensation Experience-Rating Rules and the Danger To Workers’ Safety in the Temporary Work Agency Sector

Abstract By putting a price on workplace health and linking this to costs incurred in individual businesses, experience-rating rules encourage employer ‘gaming’ — cost-reduction attempts that do not necessarily increase workplace safety. We argue that experience-rating rules, together with the rise of non-standard employment arrangements, have fostered the growth of the temporary work agency sector to which employers can outsource workplace injury risk. This study explored how temporary work agencies in Ontario, Canada carry out workplace injury prevention and return to work. We aimed to understand why these agencies would shoulder experience-rating costs when they cannot control the work environment. Focus groups and in-depth interviews were held with 64 participants between 2009 and 2011. Participants included low-wage agency workers, temporary work agencies, client employers and key informants. Legal and documentary data were also analysed. Our findings show how experience-rating rules create a market for outsourcing risky jobs to temporary work agencies, which cannot properly manage injury prevention and return to work. We detail how agencies are positioned to absorb experience-rating costs for their clients and avoid financial risk through cost transfer, premium rate groups, legal positioning, influencing accident reporting practices, and shutting down and re-opening the business. Our findings also show how experience-rating arrangements can distort the responsibility these agencies have for work and health. In Ontario, these facilitate employer ‘gaming’, largely within the rules. We propose that workplace health would be less of a tradeable commodity, and workers’ safety and return to work a more significant priority for employers, if experience rating were applied to the client employer who controls the conditions of work.

Workplace psychological harassment: Gendered exposures and implications for policy

This article reports on the results of an empirical study of working conditions including psychological harassment (workplace bullying) in the province of Québec, Canada, the first North American jurisdiction to regulate psychological harassment in its labor legislation. All empirical data provided in this article was drawn from the Québec Survey on Working, Employment and Occupational Health and Safety Conditions, conducted through 5071 telephone interviews of a representative sample of Québec workers, including the self-employed. Here we focus on employees, and provide bivariate and multivariate analyses. All analyses were stratified by gender. We provide a portrait of exposure to psychological harassment, and exposure to other psychosocial factors in the workplace associated with exposure to psychological harassment. Results show associations between exposure to psychological harassment and negative health measures including psychological distress, symptoms of depression, traumatic work accidents, musculoskeletal disorders and negative perception of health status. We report on steps taken by employees to put an end to the harassment. Gender similarities and differences in exposure, associated risk factors, health measures and strategies are presented and discussed in light of the legal context in which the study took place. We conclude with recommendations for prevention strategies that take into consideration the gender composition of the workplace.

What can we Learn from National and International Comparisons of Corporate Criminal Liability

Introduction The Westray +20 conference held at the University of Ottawa brought together academics from a variety of disciplines and jurisdictions, workplace parties, prosecutors, law enforcement specialists, policy-makers and politicians. In this synthesis, we refer to the material presented during the symposium and the ensuing discussions, as well as the papers in this issue, in order to highlight converging themes to be considered in contemplating the regulatory effectiveness of criminal law applied to workplace injuries and deaths.