Most employers are aware that they have a duty to ensure the health and safety of their own workers. However, employers are often unaware that in some cases they are also responsible for ensuring the health and safety of other employers’ workers. This obligation is set out under section 21(1)(a)(ii) of the Workers Compensation Act, R.S.B.C. 2019, c. 1 (the “Act”), which states:
General duties of employers
21 (1) Every employer must
(a) ensure the health and safety of…
(ii) any other workers present at a workplace at which that employer’s work is being carried out,…
An employer’s duty to ensure the health and safety of “other workers” under section 21(1)(a)(ii) of the Act has been interpreted very broadly to apply in circumstances not anticipated by most employers. The often misunderstood interpretive issue is what is meant by the statutory reference to other workers being present “at a workplace at which that employer’s work is being carried out”. Does this simply impose obligations on an employer where there are “other workers” of “other employers” who are present at a workplace where the employer’s own workers are working, or do the obligations arise in a broader range of circumstances? The answer is found in WorkSafeBC’s Prevention Manual Policy Item P2-21-1 (Employer Duty Towards Other Workers).
Policy Item P2-21-1 is a mandatory WorkSafeBC policy that governs the Board’s decision makers in their administration and application of section 21(1)(a)(ii) of the Act. The Policy states that an employer’s obligation to ensure the health and safety of the workers of other employers can arise in one of two circumstances:
a. where “other workers” are present at a workplace where the employer’s own workers are working, or
b. where the “other workers” are doing work for the employer’s benefit.
Where two employers have workers working at the same workplace, the work activities of each employer pose a potential hazard to the workers of the other employer. As such it likely comes as no surprise that each employer will be responsible for the health and safety of their own workers and, in addition, will bear some degree of shared responsibility for the health and safety of the other employer’s workers.
The fact that an employer would have health and safety obligations for “other workers” in the second circumstance is less intuitive. For example, an employer that hires another business to perform work for its benefit (e.g. a courier delivering a package; a towing company hauling a vehicle to a repair shop; a franchisor contracting with franchisees, etc.) may well bear some degree of shared responsibility, along with the hired business, for the health and safety of the other business’ workers while they are performing their work for the employer’s benefit. That shared responsibility can arise even if the “other workers” are performing work at a workplace that is not under the immediate control of the employer and there are none of the employer’s own workers present in the workplace.
In the circumstances described above, Policy Item P2-21-1 requires the employer to take all reasonable steps to ensure the health and safety of the “other workers”. The extent of the employer’s shared responsibility for the health and safety of the other employer’s workers will depend upon three factors:
- the employer’s degree of control;
- the employer’s level of expertise in the work being performed; and
- the extent to which the employer is aware or ought to be aware of what is occurring in the workplace.
Based upon the application of the control, expertise and awareness factors, Policy Item P2-21-1 goes on to describe the reasonable steps an employer may be required to take, as including:
- making reasonable inquiries prior to a firm doing work on the employer’s behalf (subject to the employer’s expertise in the area) to determine whether the firm can do the work safely and to confirm its plans to safely conduct the work;
- preventing unsafe conditions or work that could affect the other workers and addressing those that arise (subject to the employer’s familiarity with the worksite, expertise and degree of control over the other workers or the site, which could affect the ability to identify unsafe conditions or work, to implement processes to address safety compliance and to respond to unsafe conditions or work); and
- ensuring the employer’s workers do not put the other workers at risk.
Finally, Policy Item P2-21-1 describes a number of scenarios to provide examples of the application of the Policy to aid employers in their understanding of their responsibilities for the health and safety of “other workers”. Employers are encouraged to read and familiarize themselves with this Policy and its practice examples to ensure that they understand their obligations for the health and safety of “other workers”.