Nobody will ever claim that occupational health and safety (OHS) law is sexy. Even among workplace lawyers, it is obscure and complicated.
So let me tell you a story instead.
When I was 19, I landed a summer job at the giant Molson brewery, then on the waterfront near Lake Ontario in Toronto.
I was happy to work the graveyard shift. My job included cleaning the bottling machine when it was “down” during my night shift. The bottling machine was a massive cylinder that rotated on an axis like a slowly turning bicycle wheel: stainless steel tubing fanning out from the internal hub, like spokes, to tiny spigots filling the bottles. My mission, every night, was to climb inside from the top, with a steam hose, and clean the innards as the machine lay dormant.
One night, as I worked inside, voices approached. Pretty normal. Then a buzzer went off, and the machine came to life and started to rotate, with me in it, the stainless steel spokes closing in. It is safe to say I have never moved so fast in my life to escape being scissored. The hose fared worse; before the engineers punched the kill switch, it was shredded to pieces.
Here’s the punch line that has stuck with me: Back in the ’80s, that brewery had an open beer fridge in the lunch-room that was available for all, 24-7, at breaks, or for lunch. The unwritten rules were that nobody was watching but “visible signs of intoxication” were forbidden.
Nowadays, as an OHS lawyer, that memory still fills me with dread. I am sometimes called when a catastrophic accident or death has occurred in a workplace. All too often in British Columbia, serious accidents and fatalities are coincident with the consumption of intoxicants before or during work. My very conservative estimate is that at least 25% of serious workplace injuries and deaths involve intoxication in some way. Rumours place the percentage far higher.
Let me describe how that looks:
•A young man gets high in the log-yard while on shift. He wanders inside the sawmill and takes a “short-cut” over some stopped machinery. No one knows he is in there. The machines start up and eviscerate him.
•A worker who operates a motor vessel reports to work intoxicated. He neglects to check a hatch, sinks the boat and drowns.
•A dangerous situation envelops a worker and his fellows on shift. Stoned, he and another colleague (also stoned) are the only two of the crew who do not escape the situation. They die.
WorkSafeBC statistics confirm that roughly 55 to 65 workers die annually due to traumatic workplace injuries. That’s roughly 40% of all work-related fatalities in B.C. (many are still asbestos related). And that number does not include the roughly 7,000 life-changing serious injuries that occur every year. Every year governments and other stakeholders wring hands and rightly focus on prevention. In 2017, B.C.’s minister of labour was mandated to “review and develop options with WorkSafeBC, to increase compliance … with laws and standards put in place to protect the lives and safety of workers.”
But for years, the statistics have been relatively stable and are comparable with other jurisdictions. Stakeholders make huge efforts to squeeze out accidents and injuries from the system. How can we as a society move the dial to further reduce these grim statistics?
A reasonable person might well ask: “Could preventing intoxication at work be low-hanging fruit that we have left unpicked as we strive to improve workplace safety?”
The answer is: We don’t know. It appears that no B.C. organization publishes statistics that correlate workplace deaths and serious injuries with the use of drugs or alcohol. Not WorkSafeBC. Not the BC Coroners Service (even though autopsies and toxicology are routinely conducted). Not the Ministry of Labour. As the saying goes, if you cannot measure it, you cannot manage it or improve it.
Are there reasons not to collect or examine the data? One may be workplace privacy and security of “personal information.” But the relevant regulatory bodies routinely deal with personal medical information and anonymize the data when they aggregate it for public policy use.
Some might say that the mere presence of an intoxicant does not mean the intoxicant caused the workplace accident. Fair enough. But does that make data collection useless for identifying trends and correlations between levels of use and accident incidence? Such aggregated data could point to public policy prescriptions for safer workplaces in a more drug-permissive society, without being determinative about “cause.”
Some argue that gathering data that might correlate intoxication and accidents would unfairly stigmatize and point the finger of blame in the wrong direction: at workers.
Don’t OHS regimes make the employer responsible for workplace safety? That criticism is off the mark, too. OHS law is clear that workers and employers share responsibility for an intoxicant-free workplace.
Stigma around substance use has steadily declined in workplaces that treat them as health issues. Also, consider how the judicious but effective use of stigma has contributed to changing social norms around drunk driving, thereby making our roadways safer.
BC Stats’ 2018 Cannabis in BC survey of 28,000 British Columbians found that of the roughly 28% of the province’s population that used cannabis, almost 5% reported having been “high” at work. More than 1% reported to work or got high at work “daily.”
And that’s just cannabis.
The actual percentage is higher: The survey statistics excluded anyone who “didn’t know” if they had been high at work (?) or “preferred not to say” or, presumably, anyone who just asked the surveyor for Doritos. The point is, if you have a hundred workers, at least one of them is high every day.
Is the fruit of “prevention” really right there for the picking? My experience tells me that it probably is, in the form of enhanced drug and alcohol testing regimes for more dangerous workplaces. But today, B.C. employers are limited in the scope of allowed workplace testing. Restrictive standards place Canada and British Columbia out of step with other OECD countries that have better rules for workplaces.
But the policy prescription must wait for the evidence. For now, employers, unions and workers alike should be demanding the necessary information. •
Gavin Marshall is a partner at the law firm Roper Greyell LLP. He practices workplace and occupational health and safety law.