Canadian Occupational Safety

DECEMBER/JANUARY 2019 7 Hearing loss among oil and gas drilling workers rising steadily W orkSafeBC is alerting employers about an increase in hearing loss among workers in British Columbia's oil and gas drilling sector. Hearing-test data over five years indicates the percentage of workers showing signs of noise- induced hearing loss (NIHL) has increased from 33 per cent in 2012 to 45 per cent in 2017. By comparison, 13 per cent of workers in all other noisy industries tested positive for NIHL in 2017. Out of the 294 oil and gas drilling workers with NIHL, 65 per cent were under the age of 35. Strangely, the percentage of workers who reported wear- ing a hearing protection device in the sector has increased, from 94 per cent to 98 per cent, with a heavy reliance on foam earplugs. "The earplugs or earmuffs might be the wrong size, inserted or worn incorrectly, not worn for long enough or they may not be providing enough protection for the dura- tion and intensity of noise exposure," said Sasha Brown, WorkSafeBC occupational audiologist. Aside from ensuring workers are using sufficient hearing protection and wearing it properly, WorkSafeBC is encour- aging employers to take the following preventive measures: • Make sure workers wear hearing protection prior to entering a noisy environment and until after exiting. • Rotate workers to different positions so they spend less time in noisy environments. • Identify engineering controls to mitigate risk of exposure. • Ensure workers have their hearing tested and are aware of their test results. According to B.C.'s Occupational Health and Safety Regu- lation and Guidelines, employers are required to provide hearing-loss prevention programs, monitor noise levels and conduct annual hearing tests for workers exposed to hazard- ous noise levels. Hazardous noise levels are defined as 85 decibels in the A scale for eight hours or the equivalent. Vaccinate-or-mask policy struck down by Ontario arbitrator By John Dujay M any Ontario nurses will no longer be forced to wear masks while on duty if they were not vaccinated for influenza, now that the Ontario Nurses' Association (ONA) has won a grievance arbitration case against a Toronto hospital and the Ontario Hospital Association (OHA). "The policy is illogical and makes no sense — the exact opposite of it being reasonable," said arbitrator William Kaplan in his decision. "In the face of all of this, the 'ask' that (health- care workers) wear a mask for their entire shift for possibly months on end when entirely free of symptoms is completely unreasonable and is contrary to the collective agreement." The OHA said it was disappointed with the decision. "Hospital leaders enacted this policy in good faith to protect these populations from what could be a potentially fatal illness," said Aslan Hart, public affairs specialist at the OHA. "The top priority of all hospitals is to provide patients with a safe environment while they receive care. During flu season, hospitals are highly congested environments that are serving the province's most vulnerable patients, including the frail, elderly, children and those too sick to receive immunization." Other jurisdictions in Canada have imple- mented this policy, she added, most notably British Columbia, where a similar provincial policy was upheld by an arbitrator. The Ontario case was first brought to arbi- tration after Toronto's St. Michael's Hospital imposed such a policy for health-care workers during the 2014-15 flu season. Six other health- care facilities were also apart of the case. The ONA immediately grieved the policy after it was implemented. In his ruling, Kaplan cited a 2015 decision regarding a similar policy at a hospital in Sault Ste. Marie, Ont. "The policy was introduced at (Sault Area Hospital) for the purpose of driving up vac- cination rates," said arbitrator James Hays in his 2015 decision. "I also find that the weight of scientific evidence said to support the VOM (vaccinate-or-mask) policy on patient safety grounds is insufficient to warrant the impos- ition of a mask-wearing requirement for up to six months every year." According to Vicki McKenna, the president of ONA, there are already policies in place that would address an influenza outbreak. "When the medical officer of health deter- mines that there's an influenza outbreak, then a whole procedure falls into place around pro- tections for health-care workers and patients and their families that they care for. That's already there." And in the collective agreement, the language addresses what procedures or mechanisms are initiated when an outbreak happens. It is unclear whether or not the OHA or any hospital involved will appeal the case, said Lad Kucis, partner at Gardiner Roberts in Toronto. "I think that hospitals will be a little bit more reluctant to try to impose these things without getting a little bit more evidentiary support for their position," he said. "In the near term, I think it's pretty clear that forcing nurses to wear masks when they're unvaccin- ated, symptom-free, is unreasonable. That's the key takeaway for now, and I don't anticipate that we're going to be seeing hospitals fighting this in the immediate future." John Dujay is the news editor of Canadian Labour Reporter, a Thomson Reuters publication. confirmation of contributions made by the employer and the worker for those benefits, as well as any evidence they may have of a worker's decision to end these benefits." Like the health benefits obligation, the re- employment requirement will apply to workers injured on the job as of Sept. 1. However, it will only cover employees who have worked for their employer for at least 12 continuous months at the time of the accident, whether full-time or part-time. Once injured workers are medically and physically able to do the essential duties of their pre-injury job, their employer will have to offer to reinstate them in the job or in a com- parable one that has at least the same earnings and benefits. If an employee is medically and physically able to do suitable employment, but not the essential duties of the pre-incident job, the employer must offer the worker the first opportunity to accept suitable employment that becomes available. The reinstatement requirements are similar to those in other provinces, but with some differ- ences. One is that the reinstatement obligation in Alberta will apply to all employers. In other jurisdictions, small employers are generally excluded from re-employment requirements. The second difference is that the reinstate- ment obligation will apply until the injured worker declines the employer's offer to return to work or quits. In other jurisdictions, there is a time limit for the reinstatement requirement. When employers reinstate injured workers, the new requirements will prevent them from termi- nating their employment within six months or while they are receiving workers' compensation benefits, unless they can show a valid business reason not related to the workplace injury. If employers cannot show this, the WCB could levy a penalty up to the amount of the worker's net salary for the year before the incident. It is important that employers maintain proper records for reinstating injured workers, said Schwartz. "Employers should keep written records of modified work they have available and the date they offered this and/or the worker's regular job duties to the worker," she said. "They should also ensure they are keeping accurate and timely performance management information in the event they need to provide evidence for a work- er's termination. If an employer is laying off an injured worker, they should also keep records of all other workers who are laid off to dem- onstrate why an injured worker was chosen for the layoff." Sheila Brawn is the editor of Canadian Payroll Reporter, a Thomson Reuters publication.

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