Who???s Protecting the Protectors? The Security Employer???s Legal, Ethical and Moral Duty Part 2 of 3
|Posted on January 22, 2017 at 6:05 PM||comments (1)|
By: Jim Foston
The U.S. Bureau of Labor Statistics reports that security guards are most at risk for sustaining fatal injuries in an assault or violent attack. In fact, statistics show that between 2003 and 2009, 59.6 percent of all fatal work injuries and 15 percent of all non-fatal occupational injuries among security guards resulted from assaults. The most dangerous hours for on-duty security guards are between 8 p.m. and 8 a.m. An estimated 65.3 percent of all fatal injuries for security guards occur during overnight hours.
Common injuries to security personnel can range from lacerations and bruises, to broken bones, serious head trauma, knife or gunshot wounds and various other life-threatening injuries.
Contract security companies are in the business of protecting others. They protect property and goods and ensure the safety of the customers and employees of other companies. And yet, some security companies often and knowingly put their own workers at risk. Every day in the U.S., thousands of security workers are placed at hazardous or risky worksites without the knowledge of the hazards and risks they are protecting the client from; or the risk they face in providing protective services. Many of these security officers work alone or in isolation. Security workers have a right to know about the hazards and risks of their workplaces. When the well-being of a security worker is sacrificed to material ends it is immoral, unethical and illegal. And while there may not be specific regulations for the security industry, at least not like those found for construction and mining for example, under the General Duty Clause, employers are required to provide their employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees."
What is the definition of a recognized hazard? Recognition of a hazard can be established by OSHA based on industry recognition, employer recognition or “common-sense” recognition.
1) OSHA can establish industry recognition if the hazard is recognized in the employer’s industry. Recognition by an industry other than the industry to which the employer belongs is generally insufficient to prove a Section 5(a)(1) violation.
2) A recognized hazard can be established by evidence of actual employer knowledge.
3) If industry or employer recognition of the hazard cannot be established, recognition can still be established if OSHA concludes that any reasonable person would have recognized the hazard.
Working alone is potentially one of the most significant recognized hazards faced by security workers. To work alone or in isolation means to work in circumstances where assistance would not be readily available to the worker (a) in case of an emergency, or (b) in case the worker is injured or in ill health.
Is working alone a problem? Working alone is not always dangerous, but it does put a worker at increased risk for harm from accidents, stress, sudden illness, harassment, violence and other workplace hazards. The level of risk depends on a number of circumstances such as the location, type of work, interaction with the public or the time of day. More injuries and illnesses happen to security guards during late night and early morning hours than any other time of day. A few of many notable examples include:
March 21, 2016 - Kenny Ray Jr. of Canton, OH died from nitrogen exposure while working plant security.
A 24-year-old security guard was found dead in a canal at a condo construction site near Kelowna BC. Another security guard arriving for the day shift on Sunday could not find him and called for a search. Police believe the death was an accident. (Vancouver Police Department – Beyond the Call Augusts 19, 2011) http://www.cbc.ca/news/canada/british-columbia/guard-found-dead-at-construction-site-near-kelowna-1.676003
July 9, 2016 – Mark McCullers of Dallas, TX drowned while working private security at an event.
Calgary – A 35-year-old guard was a new immigrant to Canada who was in her first week of work when she was attacked on Nov. 1, 2006.
Port Coquitlam, Canada –A 65-year-old Surrey security guard is in hospital with more than 100 stitches to his head after being brutally beaten by three men in an unprovoked attack.
Surrey – Security guard Jim Dans was beaten mercilessly after issuing a parking ticket. “I’d like to ask him why he wanted to kill me, and why he wanted to kill me over a $30 parking ticket,” http://www.surreyleader.com/news/214405261.html
Are these the stories and faces of security? Is this the message we want to convey to the public, our clients and those we employ to deliver security patrol services? Are the hazards and risks of working alone and workplace violence simply “part of the job?”
In Part 3 we’ll look at steps employers can take to protect their workers.
Who???s Protecting the Protectors? Protecting the Health & Safety of the Security Worker The Security Employer???s Legal, Ethical and Moral Duty Part 1 of 3
|Posted on January 22, 2017 at 5:55 PM||comments (0)|
By: Jim Foston
All security employers have the primary legal duty to protect the health and safety of their workers. However, it is a legal burden that is shared. Unfortunately, too many employers address this legal, ethical and moral responsibility only after an incident has occurred that caused harm or injury to a worker or the employer has been cited by OSHA for noncompliance with a regulation. This is a costly and dangerous mistake. Per an article by ISHN, the security industry has been cited more than 450 times between June 2004 and June 2009. With OSHA fines averaging $2,300 per citation, these fines total over a million dollars in lost profits. http://www.ishn.com/articles/90064-are-your-guards-secure-in-complying-with-osha
Even if there are no specific OSHA standards related to security workers, employers still have an obligation to protect these workers.
General Duty Clause
Legally, employers must abide by relevant health & safety laws and employment laws, they also have a moral and ethical duty not to cause, or fail to prevent, physical or psychological injury, and must fulfil their responsibilities with regard to personal injury and negligence claims.
While there are no security specific OSHA standards, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970, employers are required to provide their employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees."
The courts have interpreted OSHA's general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. An employer can be held accountable and cited under the General Duty Clause for failing to do everything that was reasonable in the circumstances to keep the employee safe from harm.
Examples of Applicable Standards
Security companies and the clients they work for must follow the same regulations as any other business subject to OSHA regulation. And while there are no regulations specific to the security industry, there are several advisories and guidelines. Among these is OSHA Advisory 3335-10N 2007 Preparing and Protecting Security Personal in Emergencies. https://www.osha.gov/Publications/3335-security-personnel.pdf
Employers, contractors and clients must also follow OSHA standards related to training of personnel. For example, if security guards are required to put out small fires using fire extinguishers then per OSHA regulations, they must receive training on how to use an extinguisher.
Since security personnel may have to deal with first aid situations they should be training in first aid, CPR and bloodborne pathogens too.
The use of threat assessments should also be done and while not exactly the same, are similar to a Job Safety Analysis on a machine or a task. And any threats identified should be controlled as much as possible and personal protective equipment provided where applicable.
Employers, supervisors, employees and the prime contractor (or client) all have additional rights and responsibilities when it comes to security safety. They are as follows:
Employers – An employer must:
Establish and maintain a health and safety committee, or cause workers to select at least one health and safety representative.
Take every reasonable precaution to ensure the workplace is safe.
Train employees about any potential hazards and in how to safely use, handle, store and dispose of hazardous substances and how to handle emergencies.
Supply personal protective equipment and ensure workers know how to use and handle the equipment safely and properly.
Immediately report all critical injuries to the government department responsible for OH&S.
Appoint a competent supervisor who sets the standards for performance, and who ensures safe working conditions are always observed.
Supervisors - The manager or supervisor must:
Make sure workers work in compliance with OSHA regulations.
Make sure that workers use prescribed protective equipment devices.
Advise workers of potential and actual hazards.
Provide workers with written instructions as to the measures and procedures to be taken for protection of the worker.
Take every reasonable precaution in the circumstances for the protection of workers.
Managers and supervisors act on behalf of the employer, and hence have the responsibility to meet the duties of the employer as specified in the OSHAct for the work they (the managers and supervisors) direct.
Employees – Employee responsibilities include the following:
Work in compliance with Occupational Health and Safety Regulations.
Use personal protective equipment and clothing as directed by the employer.
Report workplace hazards and dangers to the supervisor or employer.
Work in a safe manner as required by the employer and use the prescribed safety equipment.
Tell the supervisor or employer about any missing or defective equipment or protective device that may be dangerous.
Employees have the following three basic rights:
Right to refuse unsafe work.
Right to participate in the workplace health and safety activities, such as a Safety Committee or other type of safety representative.
Right to know, or the right to be informed about, actual and potential dangers in the workplace.
A controlling employer, who is often the client or contractor, is one who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.
A controlling employer must exercise reasonable care to prevent and detect violations on the site. The extent of the measures that a controlling employer must implement to satisfy this duty of reasonable care is less than what is required of an employer with respect to protecting its own employees. This means that the controlling employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired.
As you can see, each group has collective and individual responsibilities for the health and safety of security workers.
Here is a very simplified perspective on legal, ethical and moral law:
Morality governs private, personal interactions
Ethics governs professional interactions.
Law governs society as a whole and often dealing with interactions between total strangers. https://lostetter.wordpress.com/2012/03/14/moral-ethical-legal-whats-the-difference/
In part 2 we’ll look at the how security employers heighten the hazard and vulnerability of security workers working alone.
Who???s Protecting the Protectors? Protecting the Health & Safety of the Canadian Security Worker The Security Employer???s Legal, Ethical and Moral Duty Part 3 of 3
|Posted on January 22, 2017 at 5:15 PM||comments (0)|
Who’s Protecting the Protectors?
Protecting the Health & Safety of the Canadian Security Worker
The Security Employer’s Legal, Ethical and Moral Duty
Part 3 of 3
By: Jim Foston
While security work has certain inherent risks, there are many things employers can do to mitigate these risks. Every security worker should expect that their employer has exercised duty of care to ensure the safest working conditions possible.
What can employers do to protect their workers?
In conjunction with the security risk assessment, that, presumably, has been done.
1) Conduct a safety risk assessment
Too many employers fail to conduct the required assessment. They do not understand that if they place workers in situations that will expose them to risk, they must conduct a hazard and risk assessment of the workplace.
An employer MUST:
• identify and remove or mitigate the hazards and risks the worker will be exposed to.
• tell the worker about the risks.
• create and deliver policy, procedures, and training that will provide worker protection.
2) Implement procedures for checking the well-being of worker
Regular communication with employees who work alone is critical to reducing risk and ensuring the worker’s well-being. WorkSafeBC Occupational Health & Safety Regulations state that all employers must implement the following procedures:
(1) The employer must develop and implement a written procedure for checking the well-being of a worker assigned to work alone or in isolation.
(2) The procedure for checking a worker's well-being must include the time interval between checks and the procedure to follow in case the worker cannot be contacted, including provisions for emergency rescue.
(3) A person must be designated to establish contact with the worker at predetermined intervals and the results must be recorded by the person.
(4) In addition to checks at regular intervals, a check at the end of the work shift must be done.
(5) The procedure for checking a worker's well-being, including time intervals between the checks, must be developed in consultation with the joint committee or the worker health and safety representative, as applicable.
(6) Time intervals for checking a worker's well-being must be developed in consultation with the worker assigned to work alone or in isolation.
Note: High risk activities require shorter time intervals between checks. The preferred method for checking is visual or two-way voice contact, but where such a system is not practicable, a one-way system which allows the worker to call or signal for help and which will send a call for help if the worker does not reset the device after a predetermined interval is acceptable.
3) Ensure your security supervisors know their responsibilities and are trained
The Workers Compensation Act states that every supervisor must
(a) ensure the health and safety of all workers under the direct supervision of the supervisor,
(b) be knowledgeable about those regulations, and
(c) comply with the regulation. Supervisors must also ensure that workers under their direct supervision are made aware of all known or reasonably foreseeable health or safety hazards in the area where they work. (Excerpts – Part 3, Division 3, Section 117 BCOHSR))
Security Supervisors have a myriad of responsibilities and receive very little formal training to prepare them for their job. A supervisor’s responsibilities are significant when it comes to health and safety – not just for workers but for the public as well.
Going forward – Protecting the Protectors
There is irony in the fact that the security industry provides security and safety services to their clients, but often fails to provide the same protections for their own workers. Lack of proper training is a contributing factor and this urgently needs to be addressed.
Is it not reasonable for the client and the public to expect that security service providers are themselves compliant with health and safety law? By Protecting the Protectors, the employers are not only protecting workers but also themselves and client from liability.
A big part of the answer lies in providing industry-appropriate safety training for security workers and their supervisors. Workers cannot be expected to perform their jobs safety if they haven’t been effectively trained. Security safety training must be tailored to the security industry and delivered by; security professionals with security applications as outcomes.
Security patrol employers are strongly encouraged to become accredited by ContractorCheck.ca, which is a third party independent health and safety prequalification accreditation for contractors. Contractors will undergo a complete Assessment of their Health & Safety policies and procedures, training, and insurance compliance.
Prime Contractors - A practice known as pre-qualifying contractors is increasingly recognized as an acceptable and appropriate way to confirm that contractors comply with legislation and observe best practices. The main health and safety program elements that contractors should possess in written polices, practices and procedures are as follows:
The security contractor’s health and safety program and practices reflect knowledge of the legal requirements. The contractor to whom the work is contracted has clearly defined the health and safety duties of various parties (workers, supervisors, manager and owners).
The security contractor must be knowledgeable of the workplace and its potential and actual hazards. The contractor conducts workplace hazard assessments, develops specific safe-work procedures and policies (if necessary) and instructs and trains employees before commencing work.
The security contractor’s health and safety program is actually implemented. (He or she can provide training records, inspection records, hazard analysis forms, completed risk and hazard analysis, Joint Health and Safety Committee agendas and minutes, etc.)
The security contractor’s employees have received all necessary safety training applicable to the nature of their work. This may include Workplace Hazardous Materials Information System (WHMIS), first aid, fall-protection training, lock out training, confined space entry training, forklift/crane training and ergonomics training.”
The security contractor’s employees hold all necessary security certificates required by law (provincial security certification(s) and security guard license.)
“The security contractor has incident reporting and investigation procedures in place. All incidents are reported and investigated promptly; corrective action is assigned and followed through to completion.
The security contractor has appropriate security supervision in place for the number of workers.
A plan is in place for initial and ongoing communication and coordination of work between the principal and the contractor.
The security contractor has equipment maintenance policies and procedures in place. All equipment used is maintained according to manufacturer’s recommendations and applicable technical standards.
Pringle, G. (2016) Why consider pre-qualifying contractors. Available at: https://www.reminetwork.com/articles/why-consider-pre-qualifying-contractors/
Note: The above has been revised to fit a security safety Context.
There is a cost to the employer for investing, implementing and maintaining a company health and safety culture, but there is a return on the investment. However, the cost to the employer for not practicing duty of care and not being able to use due diligence as a legal defense, if faced with litigation, can dwarf the investment cost.
“The most basic duty of an employer and supervisor, by law, is that they must take every precaution reasonable in the circumstance,” says Marty White, communications officer for the Workers Health and Safety Centre, acknowledged by the Ontario Occupational Health and Safety Act (OHSA) as a recognized training service provider. “Training and information is certainly reasonable.”
Future articles which will focus on some of the higher risk health and safety situations faced by security workers.
Are you Protecting the Protectors?
|Posted on September 28, 2016 at 4:20 PM||comments (0)|
Posted on Wednesday, October 30, 2013 6:50 AM
If this is accurate then I hope this fellow sues the security company and the the client - Guildford Town Centre for damages. On the surface - knowing there are two sides (at least) to a story - the plaintiff should pursue his grievance under the BC Human Rights Code.
Security Officers need to be trained in Tort Law as it relates to their work.
|Posted on September 28, 2016 at 4:15 PM||comments (0)|
Posted on Monday, October 14, 2013 6:46 AM
Administrative Penalties & OHS Tickets Now Reality in Alberta Date First Published on OHS Insider: October 10th, 2013 Topics: Laws & Regulations | OHS Inspectors | OHS Violations |
In Dec. 2012, Bill 6, the Protection and Compliance Statutes Amendment Act, 2012, received Royal Assent in Alberta. Although some of changes made to the OHS laws by this bill took effect immediately, several key provisions just took effect on Oct. 1, 2013 and an additional change is set to take effect Jan. 1, 2014. Here’s a look at these important provisions and what they mean for Alberta workplaces. 3 KEY CHANGES The following three changes could profoundly impact employers—as well as workers: Administrative penalties. As of Oct. 1, 2013, administrative penalties can be imposed against any parties regulated by OHS law, including employers, contractors, suppliers, prime contractors and workers. Administrative penalties can be up to $10,000 per violation per day. The specific amount will be determined by OHS officials based on a variety of factors, including (but not limited to):
Past health and safety performance;
Frequency of orders, tickets or other compliance interventions; and
Whether there appears to be an overall commitment to maintaining a proper OHS system in the workplace.
Parties hit with an administrative penalty can appeal it to the OHS Council. The government says that the goal of administrative penalties is to encourage improved compliance with OHS regulations and deter those who demonstrate a chronic disregard for health and safety in the workplace. (Read this brochure for FAQs about administrative penalties.) OHS tickets. As of Jan. 1, 2014, OHS officers will be authorized to issue tickets to workers and employers for violations of designated ticketable provisions of the OHS laws, such as an employer’s failing to have a required code of practice or a worker’s failing to have a valid entry permit when entering a confined space. OHS tickets will be similar to traffic tickets—that is, they’re on-the-spot penalties given out following an infraction. Ticket fines will range from $100 to $500 and can be paid at any Alberta courthouse or contested. The idea behind OHS tickets is that they’re a compliance tool that will deliver an immediate consequence to workers or employers in instances where violations of specific OHS requirements are observed by an OHS officer, such as workers not wearing fall protection when required to do so. (Here’s a brochure of FAQs about OHS tickets.) Unsafe work conditions. In addition, workers are now required to immediately report to their employer if they “believe an unsafe or harmful work site condition or act exists.” When workers make such a report, employers must “review the situation and take any necessary corrective action in a timely manner.” The change was made because the OHS regulation previously only required workers to report any unsafe equipment to their employer and there were no specific requirements for the employer to follow-up when a worker reported unsafe equipment. The change imposes greater responsibility on workers to report unsafe work conditions in general, not just unsafe equipment. And when workers make such reports, the employer must review the situation and take any necessary corrective action. (Of course, to exercise due diligence, an employer would have to assess and address any safety hazards brought to its attention regardless of this specific requirement in the law.) ANALYSIS Administrative penalties have been used for violations of environment law in many jurisdictions for quite awhile. OHS regulators in Alberta and other jurisdictions have just recently started to see the benefits of using such penalties and/or OHS tickets for safety violations. And it’s expected that other jurisdictions will likely jump on the bandwagon soon. For example, the Dean Panel’s report in Ontario recommended the use of both tickets and administrative penalties, although the government has not yet acted on this recommendation. Note that other changes to Alberta’s OHS law also took effect on Oct. 1. For example, employers are now required to ensure that current or up-to-date paper or downloaded electronic copies of the OHS Act, Regulation and OHS Code are readily available to workers for reference. To learn more about all of the Bill 6 changes, watch a recording of our webinar in which Alberta OHS lawyer David Myrol discussed these changes to the OHS laws in detail and discussed their implications for Alberta workplaces. - See more at: http://ohsinsider.com/search-by-index/inspections/administrative-penalties-ohs-tickets-now-reality-alberta#sthash.BxJcMTrQ.dpuf