Blog

I believe they call a headline like that, “Click Bait”.  The odd fact is, it is true, to a degree.  At the risk of giving away the punchline, they just want to see that you and your team are making the effort to have a safe and healthy workplace.

So, how do you show a Work Safe BC inspector that your brewery is making the effort?  In simple terms, you hand them your “Work Safe” inspection book.  In its most simple form it will contain a tab for “Current Issues”, and another for “Completed Issues”.  I coach my clients to have a number of other tabs, but they are not the immediate focus, let’s start small.  As an example, I usually have a map inside the front cover with the route from the brewery to the nearest hospital.

I start with an Excel sheet with a few columns, Date; Issue; Notes; Status.  Again, keeping this system as simple as possible so that your people might actually start and continue to do this.  You can later add whatever columns you consider important, many come to mind for me but let’s start small.  Also, don’t crowd too much into the project, these are just Work Safe items, as an example, ignore fire extinguishers, that is a different inspection process and most brewers have contracts for that sort of thing.

One or two staff should do an initial walk-through, and if you were my client, I would be there for that.  You are creating a list of deficiencies in your workplace, just write them down.  On your first pass, do not try to find everything, you will not.  However, be honest and thorough but be sure to find some simple fix items, these are your “low hanging fruit”.  A pile of extension cords, a little drain grate missing off the floor, things that are easy to fix and can quickly be moved to the Completed Issues tab.  Do not fix these small items as you find them, write them down, you will be fixing them shortly.

Transfer that list of Current Issues to the Excel spreadsheet, as I have described above.  “Filter” on the Status column which should all be “Open” at this time.  Now send somebody to complete the low hanging fruit items, making notes about how it was done, who did it, etcetera.  Eg.  Pile of extension cords: untangled, cleaned and wrapped cords.  Installed hooks on the wall for them to hang.  Continue through any other Issues that can be easily and effectively completed.  Now, return to your Excel sheet and change the status from Open, to Closed.  Filter your sheet to select only those items that are Open, print that page.  Change your filter to select only those items that are Closed, print that page.  Put the page of open items behind that tab in your Work Safe inspection book and the Closed items behind the next tab.

Congratulations, you now have a functional, though rudimentary Work Safe inspection book.  They legislate that these inspections must occur monthly, but that should be stated differently.  No more than one month should pass between the last entry in the inspection book and “today”.  Here’s the trick, your staff should be trained to look for unsafe issues, Current Issues in your spreadsheet.  They should simply write them on to the Current Issues page in the book.  Your month resets and starts running again after each entry, so with a little bit of use and input from involved staff, at the end of a month you should have several more Current Issues and several more Completed Issues.  Again, enter them onto your Excel sheet and filter as noted above, then reprint your pages.  Some of my clients keep the old pages others throw them away.  I am a throwaway kind of guy.

If Work Safe appears on your doorstep to perform an inspection, the first thing you do is hand them your Work Safe inspection book.  Explain how it works, “These are the things that are currently outstanding, and these are the things that have been completed.”  Explained that any handwriting on the page is your staff contributing to the Work Safe effort at your brewery.  Obviously, if you have some egregiously dangerous items on your Open list, I would urge you to get them sorted out or in the very least have explanations in the Notes section about the efforts that have been ongoing to resolve the issue.

As I noted above, this is a very rudimentary version of a Work Safe inspection book, but it is much better than not having anything when Work Safe BC walks onto your production floor.

Now the sales speech.  I do this for a living and have done it for breweries since 2015.  If you want help getting it started, call me, or send me an email.  I do not charge you unless I have made it clear that my time is billable.

My next posting will be about your MSD Book that Work Safe BC mandates you must have on premises.

 

Employment Contracts, if you are not using them, you should be.  This simple document, when used correctly offers the strongest protection for your brewery and its employees from mistakes, both yours and others.  Your brewery is the legal entity that can be damaged if a disgruntled employee takes action against it.  This damage would likely affect all staff and at many different levels.

If you are hiring without an employment contract you are basically working under “precedent” law, and in the event of a dispute that line moves regularly and, generally not in a good way. To use an uncomfortable example, if an employee is not working out for whatever reason, a signed employment contract would usually state that the employee may be terminated with two or even three weeks notice, or pay in lieu of such notice.  If there is no contract in place, this period can be much, much longer and is far more susceptible to dispute.  A written contract is, with rare exception,  binding.

The employment contract must be signed before the employee’s first day working and it should be carefully worded, specific enough to bind the parties, but not so specific as to create more problems than it solves, it’s a fine line.  As an example, If your contract says that the employee will be expected to oversee the duties of 20 floor staff but they prove to be incapable of this, and their responsibilities are changed, your brewery is in breach of the signed contract.  Don’t include details in an employment contract that don’t have to be there.

I have brewery specific employment contracts and so far they have stood up – when signed and used.   Those last four words are *very* important.  Having this tool in place and not using it can make things worse.  If some employees have contracts but others do not, more problems can be created.  If you have legacy employees when you implement employment contracts, generally they would get contracts too, but they would not be as enforceable as those signed on or before an employee’s first day at work.

As with all of these notes, you can call me or email me for more details about employment contracts, but creating one specific to your brewery is not a free offering, it takes time to edit the base contract to suit each of your positions, like Sales, Production, Administration etcetera. However, calling and asking me questions is still a free service.

Finally, If your staff have the capacity to develop your own employment contract(s) I urge you to make it happen BUT, have an employment lawyer review it before implementing anything, as noted above, incorrectly worded they can create more problems than they solve.

Thanks, and have a good day.

There are now only *two* documents must be permanently posted in the workplace.

It was also pointed out to me that one of the two is pointless to post, because you probably don’t have a physical copies of the Workers Compensation Act and the Occupational Health and Safety Regulation, though you are required to.  Do not go buy copies, the solution has been created in the attached document. I have called it “Act & Regulation Posting – Labougroup” and it has two QR codes on it so your staff can use their smart device to read copies of each. This meets the requirements of Work Safe BC.

Again, these posters *must* be conspicuously posted for access by employees. It is easy, print them, and post them.

Here we are, 2023, welcome to the newest year so far.

Here are some of resources and postings that are required to be in your brewery, if you don’t understand this, call me.

• Workers Compensation Act – Online or Order for Purchase
• Occupational Health and Safety Regulation – Online or Order for Purchase
• First Aid Notice – (PL-9 – Required posting)
• Notice to Workers – (Act & Regulation – Required Posting)
  • Recommended Notice to Workers – (Labourgroup version with QR codes)

The Responsibilities page on my site outlines, in the simplest fashion what Work Safe BC expects your team to do. It is an excellent and free stepping off point for you and your team.

There are some changes that are important for you to understand. Work Safe will be looking harder at Bullying and Harassment, and how your brewery is committing to help employees in this area. I wrote a short piece about Work Safe’s position so please, at least take the time to read this.

That’s it, if you need anything I am happy to help and as usual, I won’t charge a dime without you committing to it.  Also, I trimmed down the “send to” group as much as I could but might still have folks on here that would rather not be, just send reply and I will remove your name.

Have a great year.

One of my clients recently had a WorkSafe BC inspection that took an unexpected dive into the topic of Bullying.  It is my opinion that the Policy and Procedures statements I created address the topic well enough but speaking with WSB I have learned a bit more about the “newer” obligations they are implementing for coming inspections. It’s these obligations that we should speak about. I will reach into it a little bit here.

If you are using my Hiring Program, as I have always said, you are “minimally” covered, but you will be expected to do more than just having them in place and signed by new hires. Stated simply, the law requires you to have set policies and procedures in place and adopted by all staff and management.  If you don’t have this already, do it.  I would prefer you to call me of course, but regardless of how, do this. These hiring programs are easy to implement and until now have been good enough.  I understand this may be changing.

As some of you may recall, when I’m training new clients in the use of my hiring program, I describe implementation as “swallowing hooks”. The challenge is that while using these programs for hiring and initial training are cost effective and relatively easy to implement, there are a few commitments you are obligated to make. It is these statements that your new staff are equally obligated to read and acknowledge during hiring.  Here are a six sample statements your policies must include, in some form or another:

• • “Company” will make all reasonable effort to ensure its employees work in a healthy and safe environment that is free from bullying, harassment and violence.
  • Any senior Manager or Supervisor of “Company”, in consultation with the Joint Health and Safety Committee and employees, are responsible for developing and publishing a Health and Safety Program […]
  • All New employees shall receive adequate health and safety orientation and training prior to commencing work.
  • This policy will be subject to ongoing review and evaluation, and modifications shall be made, (as deemed necessary) to  […]
  • “Company” is responsible for the effective implementation of and adherence to the policy, providing appropriate education and training […]
  • If required “Company”, will conduct an individualized assessment of an employee’s ability to perform essential functions of their job while using any Medication. […]

This VERY short list is a sample of the “hooks” that a brewery *must* swallow to meet the obligations of Work Safe BC, Employment Standards and Human Rights. I have provided six of them here so that you have a reference for the next paragraphs.

Work Safe BC will be asking – How?

These six sample commitments must be made, and you will be asked: “How – are you going to do this?” I urge you to go back and look at each of those six bullets and ask yourself, what would you say or what would your management team say if an inspector asked – “How, do you do this?”

I get regular Employment Standards, LR and OH&S stuff from our lawyer friends at Mathews Dinsdale & Clark. Given the uproar surrounding the Corona Virus I decided to distill the latest MDC send down into what may be relevant to the Brewers I deal with.

March 4, 2020
By Paul D. McLean

Where can employers get regular updates on COVID-19?
The Government of Canada’s Public Health Agency
Infection Prevention and Control Canada (ipac)

Can an employer stop employees who travelled in an area affected by COVID-19 from returning to work?

Depending on where they have travelled and the nature of the employer’s business, an employer may assess risks in the circumstances, and could restrict an employee from immediately returning to the workplace. For example, an employer who operates a senior’s community will have a dramatically different assessment than an employer operating a warehouse. Prior to an employee returning to work, they should be asked to confirm that they have no symptoms of illness. Again, depending on the workplace and the risk associated with potential COVID-19 exposure, the employee may be asked to self-isolate even absent symptoms depending on where they have travelled.

Patients with confirmed COVID-19 infection have reportedly had mild to severe respiratory illness with symptoms of fever, cough, and shortness of breath. If the employee has these symptoms, they should seek medical attention and should not be permitted to return to work until they are confirmed by medical testing to either not be suffering from COVID-19 or that they no longer carry the virus.

If an employer holds an employee without symptoms out of work, is there a requirement to still compensate the employee?

This will depend on the circumstances, including where the employee has travelled from, the nature of the specific workplace, alternatives available (i.e. working from home) and any potential collective agreement requirements. While each situation will have to be assessed individually, there will be circumstances where holding an employee out of service, without pay, may be deemed reasonable.

What if an employee has COVID-19 and cannot work?

Where an employee contracts COVID-19 and is unable to work, an employer must grant any applicable legislative leave to the employee, in addition to meeting any sick leave obligations outlined in employment agreements or collective agreements.

What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?

Employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under occupational health and safety legislation. Where an employee has a reasonable basis to believe that there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety, the employee may be able to refuse to attend work or perform certain duties.

In the event of a work refusal, the employer must respond in accordance with occupational health and safety legislation, which response will include an investigation into the concerns and, if appropriate, adopting measures to eliminate or reduce the workplace danger. This investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. No reprisal for properly exercising a health and safety right may occur.

Can an employer fire an employee if they contract COVID19?

No. Employers may not terminate an employee or otherwise discriminate against an employee due to physical disability (which includes certain illnesses) under human rights legislation.

What if an employer needs to replace sick employees on a temporary basis to operate?

An employer can hire employees on a temporary basis. An employer may also  ask healthy employees to work additional hours, provided the employer is complying with legislative provisions regarding overtime and excessive hours of work.

The time to prepare for such a contingency is now: employers should be assessing how many employees they require to operate effectively and what will happen if a large number of employees are unable to attend work.

Can an employer close their business due to COVID-19 outbreak?

An employer must ensure a safe working environment. Depending on the situation, it may be necessary to close a business location. An employer’s obligation for providing notice or pay in lieu of notice to employees will be governed by the specific facts of each case.

Do employers have to buy personal protective equipment for employees?
Employers have a duty to provide a safe working environment. If employees run the risk of becoming infected at work, the employer must provide personal protective equipment.

Marijuana & Substance Abuse Policy

Ensure you have a “Fit to Work” policy that encompasses your firm’s position on substance abuse.  Here is one of the “Policy” statements I use in my client’s “Fit to Work” policy.  It is a good starting point and addresses the “appropriateness” of drinking at work, a unique hurdle for brewers and distillers.  The rest of the policy is relatively straight forward.

The use of illegal or legal drugs and the inappropriate use of alcohol, medications and other psychoactive substances can have a negative effect on an Employee’s health, safety and job performance.  It can also negatively affect or even endanger co-workers, customers, the public and others with whom we interact in the course of our business.

Please note that any policy should include “illegal or legal drugs and the inappropriate use of alcohol, medications and other psychoactive substances.”

All brewers, no matter how small, should have a set of Policies and Procedures that new staff acknowledge and sign at the time of hiring. They are cheap, easy insurance that several of my clients have used to their advantage.

BC Human Rights Commission

No matter what your political or social opinion is on the value of a Humans Rights Commission (Opinions are varied), be aware that the new Commissioner is *not* employer friendly.  The time limit for filing a complaint has been lengthened from six months, to one year.  To my clients reading this, you know the rules on record keeping documenting events, such records will become more important and need to be more detailed and kept for longer.

This commission has also ham strung employer’s rights to respond by limiting the length and detail of the reply (Effective Jan 10, 2020) to just seven pages. This means you and your lawyers may face something of a muzzle when responding to allegations, especially complicated and detailed defenses.  Again, it is critical that your HR program include some sort of acknowledgement of understanding by your staff.

Labour Code and Employment Standards Act Changes

The NDP government has made changes to both of these documents and none of it is good news for employers.

Labour Code

The current government is union friendly to the extreme. They have doubled the amount of time a union card is good for during a union drive from 6 months to one year. They have increased their power to impose unionization on employers who speak against unions, a process called “remedial certification”. This means employees may not even get a chance to vote, the Labour Board will certify the union into the workplace, based on employer speech.  Speaking of voting… *if* the employees get a chance to vote, it will happen within 5 days of the union applying to certify them, half of what it used to be, 10 days.  All this means that if a union wants into your workplace, you will be very limited in what you can say, have very little time to say it, and if you say it wrong, the Labour Board can unionize your workers whether the workers want it or not.

Employment Standards Act

I will be covering this topic in greater detail for my clients, so if you number among them, I will be reaching out shortly.  I urge any none-clients of mine to acquaint yourself of these changes.

The Employment Standards Act has limited what Wage Assignments can be used for when an employee has a “credit obligation”.  You can still deduct for repayment of advances, repayment of goods or services and some other things. Tips and Gratuities have new restrictions but don’t worry you are still allowed to “tip pool” but there are limits on the employer’s ability to share in tips.  In my words, not my lawyers, the employer must be performing, to a substantive degree, the same work as their employees. Again, I am keeping this short.

 

 

Intent

I will generate a comparative study of pay rates within the BC Craft Brewing Industry.  The challenge is going to be ensuring that participants are comparing “apples to apples” which means Job Duties will play a part in the analysis and may add some complexity to it.  We will work with this as we proceed but I don’t see too much of a problem, I just wanted that stated.  Everything is going to be anonymized, you will only see where your payroll falls on the industry scale, you will not see each others pay-rates.

Cost

The BC Craft Brewers Guild has confirmed that they will be covering the cost for this initial effort.  If you want to do more with your data, for your internal processes, I will be offering some options for that once we have all the basic reports available.

Finally

Please feel free to call and ask questions, work begins immediately.  All participants should receive a PIPEDA Statement prior to giving me any data to work with.  I will provide them prior to receipt of your data but follow up with me if I forget. There are a lot of brewers coming at this now.

The following information comes to me from a national Canadian law firm I do considerable work with, Mathews Dinsdale in Vancouver.  Much of the content is generalized to Canadian consumption, but many of Ontario’s laws will translate well into BC, or possibly set the bar for our legislation here.

I will have a “Fit to Work” policy for BC Craft Brewers available in January 2019.

• On October 17, 2018, recreational cannabis use became legal in Canada. Employers are now facing the challenge of dealing with the myriad of issues that accompany the recreational use of an impairing substance that was once confined to specific medical uses and otherwise illegal
• An employer can prohibit use of cannabis at the workplace and workers coming to work impaired by it (i.e. not ‘fit for duty’)
• An employer can prohibit use of cannabis at work social functions even though it is legal
• Implementation of fit-for work and substance abuse policies are vital

Some of the highlights of the Cannabis Act, SC 2018, c 16 are as follows:

• Some cannabis-related activities that were prohibited (e.g. possession of less than 30g of dried cannabis in public) are now legal
• Some cannabis-related activities, such as the sale of cannabis or cannabis accessories to a young person, are prohibited
• Some prohibited activities are now punishable by the issuance of a ticket rather than prosecuted under the
• Criminal Code of Canada (the “Criminal Code”)
• Provinces can issue licences and permits for authorized cannabis related activities

The expansion of the legal use of cannabis, however, does not amount to a licence to be impaired on the job.  Employers can choose to address cannabis use in the same way that they handle the use of alcohol and prescription or over-the-counter drugs with impairing effects. Employers can prohibit the use and possession of recreational cannabis at work and, in almost all cases, should prohibit impairment on the job.

Policies

Employers should implement policies that explicitly address cannabis and which set clear expectations concerning both medical and recreational drug usage. We recommend that such policies focus on impairment and on ensuring that employees are fit for work/duty.  While Health Canada approved testing for impairment related to cannabis is not yet available, testing for presence is both mainstream and reliable. Furthermore, setting out thresholds in policy and testing for presence is an acceptable risk-based approach to managing the hazard of impairment.

The employer should also ensure that drug and alcohol policies distinguish between the use of cannabis for medical purposes and its use for recreational purposes. Employers that prohibit the use of recreational cannabis at the workplace should outline the disciplinary process to be followed if an employee possesses or uses recreational cannabis while at work or comes to work impaired by, or suffering from the after-effects of, its use. Policies covering the use of medical cannabis should outline the forms of medical documentation that will be required to substantiate its use, as well as a commitment to accommodate (to the point of undue hardship).

Policies should also address substance abuse and addiction. We recommend that the policy require employees to proactively report to the employer if they are unfit for duty, a co-worker is suspected of being unfit for duty, and/or they have an addiction to cannabis (or any other impairing drug). The Supreme Court of Canada confirmed in Stewart v. Elk Valley Coal Corp. that an employer is entitled to implement a policy requiring the proactive disclosure of problems with drug or alcohol abuse, dependency and addiction when the objective is to treat such dependency issues. If an employee fails to comply with the policy and only discloses an addiction or dependency subsequent to an incident giving rise to discipline, the employer may be entitled to discipline the employee (up to and including termination for cause) for failure to adhere to the policy. In these instances, the discipline would be for a breach of the policy and not for the employee’s addiction or dependency (which would contravene applicable human rights legislation).

Safety Matters

A key concern for employers relating to the legalization of cannabis is workplace safety. Section 115 of the Workers Compensation Act  imposes a duty on employers to “ensure the health and safety of all workers working for that employer, and any other workers present at a workplace at which that employer’s work is being carried out”.   In other words, employers are required to ensure the health and safety of workers and to protect against injuries arising in the course of employment, as far as may be reasonably practicable.

Common Questions

Again, my thanks to Mathews Dinsdale for this content.

Question: Should an employer allow smoking on a coffee break? Can employees smoke cannabis instead of cigarettes on their breaks?

Answer: Treat recreational cannabis just like any other impairing substance. Employers can prohibit employees from smoking cannabis for recreational purposes even while they are on a break.

 

Question: How should employers respond to questions from employees about how long they have to wait after consuming cannabis before it is safe to return to work in a safety sensitive position?

Answer: Since it depends on the person to some extent, and how often, how long and how much the employee consumes, you cannot give them a guideline that guarantees no impairment. Many employers in safety sensitive sectors like aviation and policing are saying up  to 28 days or no recreational use at all.

 

Question:  Currently we test to see if a worker is using cannabis. How soon before we are able to test for impairment from cannabis?

Answer: Right now, there is no Health Canada approved device that can test for impairment caused by cannabis. It is difficult to predict when there will be a device or test that is capable of doing more than identifying likely impairment or recent use. However, given the financial incentive – likely in the next year or two.

 

Question: Is there anything else employers should do?

Answer: The employer’s obligation to ensure a safe workplace for all persons remains unchanged. As noted above, though, employers should revisit existing policies to ensure they accommodate changes to the legislation.

 

The noise of Summer is gone, and this Blog is long overdue for an update.  I have several topics that I have held off publishing until the Fall had arrived, I know how busy everybody was.

I will start with the most obvious change for British Columbia Craft Brewers, the publication of the Health and Safety for Crafts Breweries and Distilleries.  If you have been following along, I contributed to this publication and had the pleasure of working with a number of Brewers, WorkSafeBC, and a few others during its creation.

It is available to download in PDF form, and if you have a computer that is available to staff, I highly recommend making it required reading, with a link on the desktop to it.  If you have any questions about its content, please feel free to call me.  If I don’t know the answer, I will ask WorkSafeBC on your behalf.

There is an additional asset available online, linked to the above publication.  I strongly recommend reading the Forms and Checklists document.  I’ve made a copy available here.

WorkSafeBC has a burgeoning section for Craft Brewing. I have made it my job to understand this content and make myself available to explain it. Call me if you have any questions.