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Regulating Health and Safety and Workers’ Compensation in Canada for the Mobile Workforce: Now You See Them, Now You Don’t

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Abstract

Although much research has examined the occupational health and safety (OHS) and workers’ compensation (WC) implications of precarious employment and temporary international labor migration, little is known about the implications of diverse types of employment-related geographic mobility for regulatory effectiveness of OHS and WC. This article examines different types of extended mobility to determine regulatory effectiveness of OHS and WC protections. Based on classic legal analysis in seven Canadian jurisdictions, and interviews with key informants, we found that the invisibility of the internally mobile workforce, as well as the alternating visibility and invisibility of temporary foreign workers, contribute to reduced effectiveness of the OHS and WC regulation. Results point to the need for better protections to address working conditions, but also the hazards and challenges associated with mobility itself including getting to and from work, living at work, and maintaining work–life balance while living at the worksite.
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Article Citation:
Lippel, Katherine and David Walters. (2019) “Regulating health and safety and workers'
compensation in Canada for the mobile workforce: Now you see them, now you don't.NEW
SOLUTIONS: A Journal of Environmental and Occupational Health Policy. 29(3), pp. 317-348.
https://doi.org/10.1177%2F1048291119868805
The article is part of a Special Issue on Occupational Health and Safety and Employment-Related
Geographical Mobility. Guest Editors: Katherine Lippel and Barbara Neis.
Table of Contents for Special Issue
Feature:
Introduction to Special Issue Occupational Health and Safety and the Mobile Workforce: Insights
From a Canadian Research Program
Barbara Neis and Katherine Lippel 297
Features:
Regulating Health and Safety and Workers’ Compensation in Canada for the Mobile Workforce: Now
You See Them, Now You Don’t
Katherine Lippel and David Walters 317
Travel Time as Work Time? Nature and Scope of Canadian Labor Law’s Protections for Mobile
Workers
Dalia Gesualdi-Fecteau, Delphine Nakache, and Laurence Matte Guilmain 349
Occupational Health and Safety Challenges From Employment-Related Geographical Mobility Among
Canadian Seafarers on the Great Lakes and St. Lawrence Seaway
Desai Shan and Katherine Lippel 371
Occupational Health and Safety for Migrant Domestic Workers in Canada: Dimensions of
(Im)mobility
Nicole S. Hill, Sara Dorow, Bob Barnetson, Javier F. Martinez, and Jared Matsunaga-Turnbull 397
Factors Influencing the Health and Safety of Temporary Foreign Workers in Skilled and Low-Skilled
Occupations in Canada
Leonor Cedillo, Katherine Lippel, and Delphine Nakache 422
Voices
“You Can’t Solve Precarity With Precarity.” The New Alberta Workers Program: An Interview With
Jared Matsunaga-Turnbull, Executive Director of the Alberta Workers’ Health Centre
Dana Howse 459
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Feature
Regulating health and safety and workers' compensation in Canada for the mobile workforce:
Now you see them, now you don't
Katherine Lippel and David Walters
Abstract
While much research has examined the occupational health and safety (OHS) and workers'
compensation (WC) implications of precarious employment and temporary international labor
migration, little is known about the implications of diverse types of employment-related geographic
mobility (E-RGM) for regulatory effectiveness of OHS and WC. This article examines different types
of extended mobility to determine regulatory effectiveness of OHS and WC protections. Based on
classic legal analysis in seven Canadian jurisdictions, and interviews with key informants, we found
that the invisibility of the internally mobile workforce, as well as the alternating visibility and
invisibility of temporary foreign workers, contribute to reduced effectiveness of the OHS and WC
regulation. Results point to the need for better protections to address working conditions, but also the
hazards and challenges associated with mobility itself including: getting to and from work, living at
work, and maintaining work-life balance while living at the worksite.
Keywords: Employment-related geographical mobility, Occupational health and safety, Workers'
compensation, Canada, Regulatory effectiveness
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Introduction
Workers have always engaged in mobility to, from, and often within work. More recently, the
promotion of flexibility to meet the demands of the employer, as well as the externalization of
production and services, urbanization, and poor urban planning have contributed to both an increase in
non-standard employment and the complexity and diversity of employment-related geographical
mobility (E-RGM). This concept was theorized in the context of research undertaken by the On the
Move research team and is more fully described by Neis and Lippel1 who found that millions of people
who work in Canada are engaged in some form of extended E-RGM as defined below.
While much research has examined the occupational health and safety (OHS) and social security
implications of non-standard or precarious employment (i.e. temporary, part-time, and triangular
employment relationships),2, 3 and to a lesser extent OHS experiences and challenges of temporary
foreign workers,4–6 the relationship between E-RGM and non-standard employment is understudied, as
are the implications of E-RGM associated with standard employment for regulatory effectiveness of
OHS and social protections such as workers' compensation (WC). Further complicating our
understanding of these dynamics is the lack of systematic collection of national statistics in relation to
all forms of E-RGM; statistics specific to each province and territory are not always available.
This article documents the implications of extended E-RGM for regulatory effectiveness related to
OHS and WC protections. We use the term E-RGM to mean the spectrum of mobility that
encompasses extended daily commutes taking more than sixty minutes each way through to more
prolonged travel for work to regions, provinces, or countries different from place of residence. We
include mobility within work as in transportation and in occupations like home-care, cleaning, and
some sales occupations where work takes place in multiple locations.1 We refer to those who engage in
these types of mobility as ‘the mobile workforce.’
Based on a classic legal analysis of regulatory frameworks and administrative tribunal decisions in
seven Canadian jurisdictions, combined with information provided from interviews with key
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informants, we found that the invisibility of the internally (within country) mobile workforce, as well
as the alternating visibility and invisibility of the temporary foreign workforce, contribute to reduced
effectiveness of the OHS and WC regulatory frameworks, a finding also identified by Cedillo et al.4
and Hill et al..5 As we shall see, the OHS regulatory challenges vary and can be complex depending on
the nature of employment, on time and distance considerations, as well as on the worker's status and
particular circumstances (gender, language proficiency, nature of migration) which can increase their
vulnerability. Challenges for effective application of WC legislation also exist, although their sources
are different.
Methods
We focused on six provincial jurisdictions: British Columbia, Alberta, Ontario, Quebec, Nova
Scotia, and Newfoundland and Labrador and the federal jurisdiction when relevant. These jurisdictions
were chosen among the fourteen different regulatory regimes in Canada because they include the three
largest jurisdictions, British Columbia, Ontario, and Quebec, and they also include two jurisdictions
that are likely to import workers from out of province (British Columbia and Alberta), as well as two
provinces where a substantial proportion of the labor force works inter-provincially (Newfoundland,
Labrador and Nova Scotia). The federal regulator has jurisdiction on OHS legislation applicable to
inter-provincial and international transportation, although provincial WC legislation applies to these
sectors.
Classic legal analysis involves identifying all relevant regulatory frameworks governing OHS and
WC in these jurisdictions, analyzing the content available in the laws, regulations, and policy manuals
and then studying the relevant administrative tribunal decisions that apply the legislation over a period
of time, in this case between 2010 and 2018. Before completing a publication, we then revisit the
legislation to ensure that the law has not changed since the initial research was completed. Given the
number of jurisdictions studied here we have not undertaken an exhaustive analysis of the relevant
cases, of which there are thousands, but have focused on selected issues that emerged as being most
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relevant to the mobile workforce. We analyzed several hundred decisions over the course of this study.
The choice of issues to study more exhaustively was also informed by consultation with key
informants.
We identified key categories of regulatory provisions that either present challenges when applied to
the mobile workforce or that appear to address their needs. To do so, and parallel to the legal research,
we explored issues related to the application of the regulatory provisions through a qualitative study
based on key informant interviews in the same jurisdictions; a study undertaken in two stages. At the
outset, in order to identify the issues to be studied, we held a two-day consultation meeting in Toronto
in June 2013, where we invited five key informants who specialized in Canadian OHS law and policy
to discuss the challenges, remedies, and success stories related to the protection of the OHS of mobile
workers. The proceedings were audio-recorded and consensus as to the main issues identified in the
discussion was obtained by noting these on screen as the discussion unfolded. This consultation was
complemented by analysis of the literature and legislative frameworks in order to illustrate the issues
raised. The WC research first focused on analysis of legislation and administrative tribunal decisions
involving mobile workers in the six provinces of interest. We then explored the priority issues in both
OHS and WC with regulators and other key informants in order to identify challenges and solutions in
light of the literature and the results of our interviews. In total twenty key informant interviews took
place between 2015 and 2018; several were group interviews. Key informants included representatives
of employers and unions, practicing lawyers, medical practitioners, as well as senior staff from WC
boards (WCBs) and regulators responsible for OHS for a total of forty-seven people. Aside from the
interviews, some organizations preferred to answer questions in writing. The process was iterative, and
we revisited some jurisdictions during the course of the study in light of regulatory changes and
changes in government that affected the legislation and policy we were studying. Further information
was gathered from observing public meetings with specialists in WC or work disability prevention,
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particularly with regard to WC and return to work. Ethics approval was provided by the Office of
Research Ethics and Integrity of the University of Ottawa.
Regulatory background
A broad range of international instruments have been adopted by the International Labour
Organization (ILO) and United Nations governing both international and national migration and working
conditions, however Canada has ratified very few of these instruments, and, with the exception of the
Maritime Labour Convention 2006,7 international law has had very little direct influence on the Canadian
legal frameworks governing OHS and WC that apply to the mobile workforce. For protections from
international conventions to have legal force in Canada, provisions must be adopted by the federal or
provincial governments in domestic legislation. We therefore focus here on domestic legislation, looking
at federal and provincial legislation of relevance, although we underline the international context in
which this legislation has developed, when useful.
Workers' OHS entitlements are supported in domestic legislation through a set of provisions that
aim to protect workers’ health, safety, and well-being by imposing requirements on certain classes of
duty-holders (usually employers) to ensure that the work under their control does not harm the workers
employed to undertake it. At both national and international levels, the recent history of these
regulatory developments in OHS, briefly summarized, demonstrates a growing focus on process-based
regulatory standards over more traditional prescriptive standards. Thus, general requirements on duty
holders to manage the risks to which workers (and sometimes others) may be exposed have
increasingly come to provide over-arching regulatory principles that ascribe general duties to
employers and others having control over work to evaluate and take the necessary steps to reduce
occupational risks to workers to acceptable levels.8 (p378) –10 In theory, these broad principles should
allow greater scope for addressing what is widely recognized as a rapidly changing structure and
organization of work and provide adequate protection of the safety and health of a diversified range of
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workers. Moreover, the framework should be sufficiently flexible to be responsive to challenges
associated with mobility.
Overview of Canadian regulatory arrangements
Each Canadian province, and the federal regulator, have their own OHS legislation applicable only
to their own jurisdiction. In Canada, federal law does not override provincial law; each regulator is
equally sovereign. The Canadian constitution determines that regulation of work is of provincial
jurisdiction except in fields that fall under federal competence and the Canada Labour Code,a which
governs OHS for federally regulated work, defines a “federal work, undertaking or business” as:
(a) a work, undertaking or business operated or carried on for or in connection with navigation
and shipping, whether inland or maritime, including the operation of ships and transportation by
ship anywhere in Canada,
(b) a railway, canal, telegraph or other work or undertaking connecting any province with any
other province, or extending beyond the limits of a province,
(c) a line of ships connecting a province with any other province, or extending beyond the limits
of a province,
(d) a ferry between any province and any other province or between any province and any country
other than Canada,
(e) aerodromes, aircraft or a line of air transportation,
(f) a radio broadcasting station,
(g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,
(h) a work or undertaking that, although wholly situated within a province, is before or after its
execution declared by Parliament to be for the general advantage of Canada or for the advantage
of two or more of the provinces,
(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures
of the provinces, and
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(j) a work, undertaking or activity in respect of which federal laws within the meaning of
section 2 of the Oceans Act apply pursuant to section 20 of that Act and any regulations made
pursuant to paragraph 26(1)(k) of that Act.
Federal OHS legislation governs a variety of sectors, and while their jurisdiction applies to six
percent of all Canadian workers, 11 they regulate many of the sectors involving E-RGM, particularly in
relation to transportation. Constitutionally, the federal Parliament has the right to adopt extra-territorial
provisions, unlike provinces which can only regulate within their territorial jurisdiction, an issue that
raises problems, as we shall see, when hazards to which provincially regulated workers are exposed
occur outside the regulator’s jurisdiction.
The vast majority of workers and workplaces are governed by provincial health and safety
legislation, and there are important differences between provinces. To illustrate, Quebec's health and
safety legislation explicitly addresses work organization in its general duty clause, while Ontario
makes no mention of work organization. 12 On the other hand, occupational violence is explicitly
addressed in health and safety legislation in Ontario, and many other jurisdictions, but not in Quebec.
13, 14
WC legislation is essentially of provincial jurisdiction in Canada and applies to federally regulated
enterprises including interprovincial trucking, the airline industry, and shipping. 12 The right to WC of
employees of the federal government is also governed by provincial legislation, Parliament having
delegated by reference the determination of coverage for government employees. 12
The six provincial jurisdictions represented in our study all provide for access to compensation on
a no-fault basis, for both injury arising out of and in the course of employment and occupational
disease. There are, however, numerous specificities with regard to scope, coverage, benefit levels, and
adjudication that differ from one province to the next; we will refer to the most important of these
differences for the mobile workforce in our findings. One key difference between the provincial
regulatory frameworks is that coverage for mental health problems related to exposure to chronic
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workplace stress was legislatively excluded from workers’ compensation coverage in most Canadian
provinces, but was always available in Quebec, Alberta, Saskatchewan, the Northwest Territories, and
Nunavut. 15 Some of these exclusions still exist while others have been repealed. More recently,
several provincial jurisdictions have adopted presumptive legislation to facilitate access to workers’
compensation for first-responders who suffer from post-traumatic stress injuries. 16 In contexts where
workers travel between provinces for work, the choice of jurisdiction for a mental health problem will
determine eligibility for benefits in many cases and it is unclear how regulators react when workers are
exposed to stressors in several provinces, some that provide coverage and some that don’t.
Results
We first examine issues related to regulatory effectiveness of OHS legislation, looking also at gaps
in regulation. We then turn to issues related to WC.
Challenges for effective application of OHS regulatory frameworks
The policy challenges with regard to E-RGM and OHS affect four facets of the life of mobile
workers: getting to work, being at work, living at work, and living at home.
Getting to work. Getting to work presents a variety of health and safety challenges associated with
commuting hazards. For those who drive or are driven to work, these include the quality and
maintenance of vehicles, the road conditions, the abilities of the driver, and the challenges of the road.
There are also hazards associated with other means of transportation. Issues that compromise the
effectiveness and level of protection are related to the status of the commute, which we will examine in
more detail in the section relating to WC. At issue is whether the commuting conditions are considered
to be an integral part of working conditions, in which case OHS provisions as well as employment
standards would apply, 17 or whether they are considered to fall within the worker's private life, outside
of the sphere of work. There are also questions relating to ownership and responsibility for the road
and the vehicle used for transportation. Finally, there are jurisdictional considerations both within
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provinces, and between provinces/countries, that must be taken into account, along with various related
communication issues that can impede oversight of the conditions of the commute.
Commuting accidents are not usually considered compensable in Canadian jurisdictions although
annual deaths from these accidents (466) are estimated to exceed the number of occupational fatalities
(332, excluding occupational diseases). 18 As a result, these injuries and fatalities are invisible to OSH
regulators in Canadian provinces. In contrast, in many European and Asian countries, 19, 20 commuting
accidents are compensable. Spain, 21 France, 22 and Germany 23 all provide coverage for commuting
accidents. The European Agency for Safety and Health at Work tracks commuting accidents in those
European countries that provide coverage for these accidents. It notes that women are more often
implicated in commuting accidents than men, possibly because their modes of commuting are
different, women being more likely to commute as pedestrians or on bicycles and therefore being more
likely to be injured during the course of their commute to work. Their commuting trajectories differ as
well because women may more often take children to school on their way to work. 24 (p 395)
In jurisdictions such as those in Canada where commuting accidents are not generally covered,
statistics relating to injuries occurring while commuting to and from work are not gathered. As a result,
the health and safety effects of organizing work in a way that depends on long commutes, including
potential issues such as work and commute schedules that fail to take account of hazards such as bad
weather or fatigue, are not visible to regulators or employers and, therefore, the business case for
prevention is not made.
The exclusion of commuting accidents from the purview of WC (and by extension from OHS)
regulation has repercussions not only for the invisibility of injuries but also with regard to the
prevention of work injuries related to fatigue. One informant described the link between drive-in/
drive-out work organization and fatigue in a situation where the employer provided transit to the
worksite from the closest municipality:
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Union Rep: Fatigue is a giant issue. It’s incredible how fatigue is a massive issue,
especially in any of the resource extraction industries, […] Quite often, you know, with
the serious fatalities and serious incidents, when we take a look at the investigations,
fatigue is always a factor, you know?
Interviewer: What part of that fatigue is attributable to commuting, if any?
Union Rep: Well, I mean that is contingent upon the job, right? And a lot of people
always be sleeping on the buses. You know, when I was talking about [name of mine
destination three hours from the municipality] everybody sleeps on that bus. That’s good
sleep time, right? And most people will try and sleep on the commute, as long as they’re
not the one who has to drive or something. But that’s not always possible, right?
He then described a typical scenario for job rotations and the pre-shift commute:
Union Rep: Three and a half days. So three work days in and three out. But they’ll get in
a car and drive over night into [municipality], get on the bus, and then the company does
the rest of the driving all the way up to the mine [...].
Interviewer: Okay, so they’ll get in the car and they’ll drive overnight.
Union Rep: Yeah.
Interviewer: On their own dime. So if they’re injured in that drive…
Union Rep: They’re not covered, no.
Interviewer: And then the company picks them up at [municipality]?
Union Rep: Yeah, and they get on a bus, yeah.
Interviewer: And do they start right away, or?
Union Rep: Oh yeah, you get off the bus and you’re pretty much on shift, right? You drop
your stuff off and, uh, there you go.
Seafarers who report for duty at ports distant from their homes have also been found to start work
in a state of fatigue because of the commuting conditions that precede meeting the ship.7 Fatigue has
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also been identified as an OHS issue for E-RGM workers in home care. Fitzpatrick and Neis25 found
that some workers reported feeling drowsy driving home after the last shift of the day, an important
risk factor particularly in Newfoundland where roads and weather often make driving hazardous in
itself.
Thus, fatigue related to commuting to work increases the likelihood of injuries at work and fatigue
attributable to long and irregular work shifts increases the likelihood of injuries during the commute
home, injuries that are invisible to OHS regulators. 18 Fatigue and exposure to hazards occurring while
commuting between worksites are also hazards invisible to regulators. 25
When it is the commute itself that poses an immediate threat to the safety of the worker, the
decision to refuse to commute is not protected under OHS legislation and a worker may be sanctioned
for absenteeism, or economically disadvantaged by his or her refusal to undertake a very hazardous
journey. For those whose job rotations are based on long rotations followed by time off, difficulties in
getting to work may result in the worker losing several days or even weeks of work (a full rotation), so
the economic incentive to take the risk, regardless of the commuting conditions, is strong. Yet, all of
this takes place outside the regulatory frameworks designed to prevent risk-taking related to work. One
regulator told us they counted on the police to close the roads if the conditions were too hazardous and
didn't see the commuting conditions to fall within their jurisdiction.
In Canadian jurisdictions, where the commute is perceived to fall outside the mandate of
regulators, other associated hazards such as exposure to violence when travelling to an isolated
worksite at night, for example, may also fall outside the scope of OHS legislation. The regulatory
frameworks may be revisited in light of the 2019 ILO Convention on Occupational Violence that
includes commuting to and from work within the purview of the Convention.b
At work. Hazards related to work performed by the mobile workforce are sometimes associated
with working in remote workplaces, including long shifts and rotations, remote (ineffective)
supervision, and hazards associated with working in another country. There are also hazards specific to
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workers who are regularly moving from one worksite to another, continually entering new workplaces
and, in the process, being exposed to hazards with which they are unfamiliar. 25 WC decisions provide
examples of the mechanisms by which remote work and associated long rotations lead to compensable
injury because of the associated intensification of work. For example, an appeal tribunal in Quebec
accepted the occupational disease claim of a construction worker who had worked ten hours per day
over periods ranging from twenty five to thirty-three consecutive days and who developed various
musculoskeletal problems including epicondylitis and carpal tunnel syndrome while building houses in
the far north of Quebec.c
Key informants told us that some forms of mobility impede effective application of the right to
information on hazards in the workplace, the right to participate in the identification and elimination of
these hazards, and the right to refuse dangerous work. Sometimes this is attributable to the
vulnerability of international migrants but in other cases it is attributable to conditions associated with
the mobility itself.
The right to information can be undermined in situations where workers are moving from one
workplace to another, as is the case of home care workers. 25, 26 Each home, each patient, can present
specific hazards, rarely identified in advance by the employer. The same is true of truckers and other
delivery personnel. For international migrants, language skills are not always sufficient to understand
the safety training provided, and in many cases, safety training is not provided to temporary foreign
workers, or is provided after workers have been exposed to hazards for weeks or months. 4
In terms of prevention mechanisms, there is some evidence that mechanisms to ensure worker
participation in prevention through health and safety committees and worker safety representatives are
more difficult to effectively implement when workers are working in remote worksites or dispersed in
multiple geographic locations. Working as an orderly in a long-term care facility, for example, is more
conducive to collective governance than providing care individually in multiple private homes where
workers rarely come into contact with colleagues, supervisors, or union representatives.
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Refusing dangerous work is another challenge as mobile workers employed in mobile (truckers)
and multiple workplaces (homecare, cleaners) often work alone with little guidance from their unions
or supervisors, and may also work in remote workplaces (mining, construction, tree-planting)
inaccessible to labor inspectors who have the final say on the right to refuse. Additional obstacles are
encountered by seafarers, an isolated workforce whose right to refuse is subject to the orders of the
captain.7 While all forms of mobility can lead to difficulties in the implementation of these rights, an
important body of literature has specifically documented the vulnerabilities of temporary foreign
workers with regard to the exercise of their OHS rights, “deportability” and isolation clearly
decreasing their ability to know and exercise them. 4, 27, 28
For Canadians working in other countries, hazards may be specific to the political or geographical
context of the country to which they are sent. Key informants in several provinces, some relying on
case law,d provided examples in which provincially regulated workers had tried to invoke OHS
legislation to refuse deployment in a war zone or to obtain support from inspectors because of hazards
in their work, only to be told that provincial regulators do not have powers to address hazards outside
their jurisdiction. The regulator’s jurisdiction stops at the border of their province, so this limitation
applies when hazardous conditions arise in another Canadian province not just in another country.
Other jurisdictional issues arise in many mobile workplaces: seafarers, inter-provincial truckers, or
those working on trains and airplanes are regulated federally in Canada, for some issues, while for
others they fall within provincial jurisdiction. The delimitations are unclear, and we were told that
multiple inspectorates, including police forces, often attend the scene of an accident and do multiple
factual analyses to determine which regulation/regulator has jurisdiction over the incident. The
following exchange with a provincial OSH regulator illustrates the type of confusion that may arise
because of inter-jurisdictional issues:
15
Interviewer: And with lots of our mobile workforce, many of the issues that we’ve been
coming up with [involve] inter-jurisdictional issues. Like inter-provincial truckers. Are
they …
Respondent 1: Federal.
Interviewer: They’re federal. And how can you tell they’re federally regulated when an
incident occurs?
Respondent 1: Well, we gather the facts, right? So
Interviewer: Everybody goes?
Respondent 1: Pretty much. [okay] So you’d have both regulatory bodies present [right]
and we would determine, based on a series of questions, then determine jurisdiction. If
it’s not clear at the time, we both continue. We’ll run our investigations concurrently
until we’re able to clarify who has jurisdiction.
Interviewer: Okay. And that for instance would be if there were an accident involving an
injured provincial trucker or a truck that might or might not be interprovincial.
Respondent 1: Right. And that’s only if the incident occurs at the workplace. It wouldn’t
be on the roadway. So we wouldn’t
Interviewer: The worker’s truck. The workplace is his truck?
Respondent 1: Well, we don’t have jurisdiction over the highways, roadways, so that’s
under the Highway Traffic Act. But certainly if a truck has an incident at the workplace,
we determine whether—whose—which party is provincially regulated, whether it be the
truck driver or the trucking company or the warehouse. Once we’ve determined who has
jurisdiction, who’s the person who was injured, get clarity around who that person is,
and then proceed with our investigation.
Interviewer: Okay, so if for instance brakes fail on a truck that is a clearly provincially
regulated truck
16
Respondent 1: And it’s … But it doesn’tAt that point, if the incident occurs on the
roadway, there’s no … In terms of the federal government or provincial government, it’s
under the Highway Traffic Act. [okay] And if it’s a highway, the [provincial police]. If
it’s [other roads], I think [municipal] Police.
Living at work. Our study of hazards and regulatory challenges related to living at work for those
whose mobility requires overnight or off-shift accommodations away from home found unclear and
inconsistent requirements regarding the provision of adequate housing to international and internally
mobile workers in remote workplaces, with significant variations between provinces and variations
between the situation of temporary foreign workers coming from different countries or involved in
different immigration programs. Sometimes the consulates of labor-providing countries require that
adequate housing be provided to the workers, and there may be some oversight in this regard. One
informant related that an employer was required to provide housing to the foreign workers, while
Canadian mobile workers employed by the same firm were expected to pay for their own housing.
Disparity of conditions, which may favor domestic or foreign workers depending on the circumstances,
does nothing to promote harmonious work relations, and may even promote violence and harassment
between groups.
Living arrangements in the oil sands of Alberta in contexts where collective agreements address
housing conditions 29 are undoubtedly better than those provided to agricultural workers under the
seasonal agricultural worker program ,30 (pp 111-123) but as presented in the section on WC, even in the
Alberta oil sands, injuries occur because of hazards in the housing provided to the workers. Temporary
foreign workers outside of the agricultural sector have also complained about the housing provided to
them, although in remote areas the housing provided to Canadian workers may be equally
inappropriate as illustrated by a complaint filed by tree-planters of African origin working in British
Columbia who alleged the Africans were provided with inferior accommodation and were thus victims
17
of discrimination. The complaint was rejected by the tribunal because the housing provided to all
workers was found to be inadequate. In the words of the court, "neither mode of accommodation
remotely began to meet the requirements of accommodation under the Employment Standards Act, the
Silviculture Contract Camp Standards or WorkSafeBC's Occupational Health and Safety Regulations."
e OHS regulation of worker housing is non-existent in some provinces, leading agencies to rely on
legislation designed to protect the health of the public rather than the health of workers. For example,
Alberta Health Services intervened in 2018 because their inspectors "found evidence of 'sleeping/living
accommodations for foreign workers' in the premises of the Burger King where they worked. The
concern of the authorities related to violations of the health code as 'food-handling services must be
separated from living quarters and other areas that may be incompatible with the safe and sanitary
handling of food.'" 31
Living at home. Work-family balance can be particularly difficult for mobile workers. Long shifts
and rotations combined with lengthy commutes imply long absences from home on a daily or more
prolonged basis. Mechanisms to ensure workers’ ability to communicate with their families are
sometimes not easily available. Some workplaces provide good Internet access to supervisors, but not
to the rank and file, 32 and nowhere were communication issues with family and home addressed in the
regulatory frameworks. Other issues of work-family balance arose in cases in which a family member
was ill or when the worker had difficulties with child-care. While some provinces provide for leave in
the event of family emergencies, these provisions may be difficult to apply to the mobile workforce. 33
(p 105) Although maintaining contact with families while in remote workplaces was usually seen as
desirable, informants in one study on mining in the Yukon told of increased stress associated with
regular contact with home, particularly if distance prevented them from acting upon the deterioration
of relationships. 34
Challenges for effective application of WC regulatory frameworks
18
Overview of Canadian workers' compensation systems. Workers’ compensation is one of the oldest
social programs in Canada, dating back to the early twentieth century. 35 All Canadian WC regimes are
no-fault systems guaranteeing the right to compensation for workers injured out of and/or in the course
of employment, regardless of fault of the employer or of the worker, although some provinces have
exceptions to this principle. These regimes curtail workers’ rights to sue under tort law, so even
criminally negligent employers are protected from civil liability if the injury incurred is potentially
covered under the provincial WC legislation, whether or not the worker or the worker’s estate has
actually filed for WC, and this exclusion includes violation of constitutional rights such as
discriminatory harassment. 36 Public, not-for-profit compensation boards are mandated to implement
the law by collecting premiums from employers and paying out compensation to workers according to
the regulatory and policy principles in force at the time of the injury and no private insurers play a role
in any Canadian provincial WC system. Definitions of compensable injuries and diseases differ
between provinces, and levels of benefits may also differ. These are complex regulatory systems that
are not easy to navigate even for specialists. When workers are mobile, complexity can be exponential
as there are inter-jurisdictional issues that potentially compound the problems raised by a given claim.
When workers reside in a province or country other than that in which they work, or even in cases
where their home is within the same province but far from their worksite, several aspects of the
compensation process may work less smoothly. Here we examine rules relating to WC coverage,
assignment of modified work after injury and before maximum medical recovery, determination of
benefits, access to social and vocational rehabilitation, and access to justice issues. All themes are
inter-related, for example failure to take up proposed modified work will compromise the right to
benefits; for the sake of clarity, we describe them separately. Some challenges are only applicable to
inter-jurisdictional mobility while others apply to all mobile workers.
Coverage. The question of coverage determines whether a claim for compensation will be
accepted. We examine a series of issues affecting coverage: inter-jurisdictional rules determine where
19
workers may file a claim; proof of exposures for occupational disease claims are particularly difficult
for mobile workers; when asking if an accident occurred “out of and in the course of employment” the
legal requirement in WC in Canada, commuting accidents and accidents occurring where workers are
living away from home, are also contentious.
Inter-jurisdictional challenges: Of particular importance for this study is the existence of an
Inter-jurisdictional Agreementf on WC that is designed to ensure that inter-provincial mobility in the
course of employment does not undermine the right to WC. Each province has legislation that
determines where a claim should be made and, in some cases, workers may choose between the
compensation board where the injury occurred or that in their home province, for instance if they are
working for a sub-contracting company from their home province that has taken a crew of workers to
another province. Not all provinces studied provide for the opportunity to choose in this situation and
conditions determining the right to opt vary from one province to the next.
Although this agreement between provincial compensation boards governs cases where workers
live in one province and sustain a work injury or illness in the course of their employment in another, it
does not always protect workers from falling through the cracks when jurisdictional conflicts arise.
Because of differing rules on the scope of legislation in the worker's home province and that in the
province of injury, some may have difficulty in accessing compensation coverage. The interprovincial
aspects of the worker's employment injury muddy the waters and impede smooth application of the
law. We found several examples of work injuries that would have clearly been covered if they had
occurred in a given jurisdiction, but where access to compensation was delayed and sometimes denied
because compensation authorities had no jurisdiction to adjudicate the claim. One example involved a
worker from Quebec injured at a worksite in Quebec where he had been placed by a temporary
employment agency situated in Ontario. The fact that the client employer had a place of business in
Quebec did not justify compensation by the Quebec regulator, nor did it justify compensation by the
Ontario regulator that covers injuries sustained on its territory. g A final decision can take years and
20
sometimes no compensation will be paid; the worker may then be entitled to sue the employer who
will not benefit from WC protection when the claim falls through the jurisdictional cracks (although by
the time a final decision is made alternative recourse may be barred by statutes of limitations). h
Occupational disease claims: Occupational disease usually involves exposures over time.
When workers are exposed to a substance or a process in a large number of workplaces, it becomes
more difficult to document exposures and to determine causation. It is even more difficult when those
exposures occur in different provinces. Employees of the federal government frequently work in
multiple provinces, and in the case of a claim for industrial deafness, the claim was denied by the
Quebec tribunal, because the exposure to noise occurred primarily in Nova Scotia. i
As another example, compensation legislation and policy governing asbestos-related disease, in
several provinces, requires evidence of significant exposure in the specific province. 37 (p 17) In a claim
for carpal tunnel syndrome filed by a construction worker who had worked in Quebec after having
worked for several years in Ontario, the Quebec WCB accepted the claim, but the appeal tribunal
reversed that decision because exposure in Quebec was insufficient when compared to exposure in
Ontario. That decision was, in turn, reversed on a procedural technicality, but the final decision came
over four years after the worker's initial claim. j Although the Inter-jurisdictional agreement applies to
claims for occupational disease, Quebec opted out of the provision on occupational disease in 2005, so
that questions regarding coverage for workers who have exposures in multiple Canadian jurisdictions
that include Quebec are complex.
Commuting accidents: Although all Canadian compensation boards will affirm that commuting
accidents are not normally considered as compensable accidents, when we ask informants about
specific cases or analyze appeal tribunal decisions, the situation is far from cut and dried. In every
province, determination of compensability of transit accidents has proved to be contentious, despite
explicit policy. It is difficult to anticipate which circumstances will give rise to WC coverage and
which will not given the broad range of criteria that are considered in determining, in a given case,
21
whether the accident occurred out of and (or, in Quebec) in the course of employment. Each province,
except Quebec, has explicit, often binding WCB policy on this issue and there are hundreds of tribunal
decisions, some recognizing compensability of an accident occurring during transit, others declining
coverage, often in similar circumstances. Further complications arise because it is sometimes in the
interest of the worker that the WC legislation not apply so that the worker can sue those responsible for
the injury, including the employer. Compensability as an issue is thus sometimes raised by defendants,
k notably employers, who seek to include transit accidents in the purview of the definition of “work
accident” to protect themselves from tort liability, while in other cases it is the worker who seeks
compensation under the WC legislation after their claims have been denied or disputed.
In general, if the worker is injured while traveling to work from home, going home after work, or
going home for lunch, the injury will not be found to arise out of or in the course of employment,
whether the worker is working for a temp agency l or providing home care service. m However, if the
worker is traveling between home and a work camp and traveling on a private road owned by the
employer, the accident could well be compensable. n
Some criteria used in decision-making can allow workplace parties to facilitate access to coverage
and avoid litigation. For example, when a worker is unionized, decision makers look to the collective
agreement to see if the workplace parties intended for travel to be considered as part of the job, 17 as
when provisions require that the employer pay for transit to the worker’s home if she finishes work late
at night. o
There are circumstances where a transit accident is clearly covered by WC legislation in most
provinces, for example, an accident occurring while the worker is on an overseas mission prescribed
by the employer. p Other circumstances will rarely, if ever, be considered to be a compensable accident
by any Canadian WCB, such as an accident occurring while the worker stopped on her way to or from
work for personal reasons, q although in one case an employer who wanted to escape liability by
22
including such an accident within the purview of the compensation legislation was successful. r In
between, there is a broad spectrum of circumstances that are sometimes covered, sometimes not.
Accidents in work camps and in temporary housing: Mobile workers often live away from
home for periods of time and injuries that occur in or around the living facilities may or may not be
covered. Policies of the compensation boards treat injuries occurring in living facilities during a
business trip separately from those incurred in living facilities provided to industrial workers. This
distinguishes regimes governing gold-collar mobility from those applicable to blue-collar mobility, yet
we see no legal justification for these distinctions which systematically favor gold-collar workers who
benefit from a broader interpretation of the concept “arising out of and in the course of employment.
Distinctions appear to be arbitrary and the boundaries between compensable and non-compensable
injuries shift according to circumstances and sometimes depending on type of mobile work.
Shifting policy boundaries with regard to coverage also arise when workers are injured in work
camps or other living facilities provided by the employer. In some provinces, policy is explicit with
regard to injuries in work camps. British Columbia, for example, has policy that will consider injuries
sustained in an employer-provided facility to be compensable if the worker had no reasonable
alternative accommodation because of the remoteness of the worksite. s
In neighboring Alberta, WC policy 38 dictates that an injury in a camp will be covered if the worker
is a "captive worker" with no alternative but to live in the employer-provided housing. However, the
policy also requires that the worker's injury be attributable to a hazard in the facility. S. 6 of that policy
38 specifies that:
Injuries are compensable when a worker is making reasonable and permitted use of the
provided facilities and the injury arises from a hazard of the premises or equipment provided.
Hazards include any employer-provided equipment such as furniture, utensils, etc. and any
food or drink provided by or purchased from the employer or employer's agent and consumed
23
on the premises. Food, equipment, or other hazards introduced by the worker are not
considered to be employment hazards.
If the worker is considered to be a ‘captive worker’ in a residential facility in Alberta, the WCB may
include other hazards based on the individual merits of the claim. 'Captive workers' are workers who,
because of the circumstances and nature of their employment have no reasonable alternative to living
in a bunkhouse or campsite (for example, a remote campsite in the wilderness). This policy was
applied in a case where the worker slipped in the shower, and after debate as to the quality of the
shower curtain, reminiscent of arguments arising in a fault-based system, it was decided that the
worker was indeed captive and that the shower was indeed a potential hazard. He received coverage for
his injury. t A similar result was arrived at in a case where a "captive worker" fell after receiving an
electrical shock in the residential facility. u In another case where two workers were obliged to share a
room, the violent and unprovoked assault of the claimant by the other occupant of the room was held
to be a compensable incident, the violent co-worker being the "hazard."v Several Alberta cases relating
to the "captive worker" policy involve workers developing musculoskeletal injuries upon arrival in the
camp after traveling long distances with heavy luggage to reach the camp, but outcomes are
inconsistent; some claims are accepted, others not, in quite similar circumstances. w
Reading Alberta WC policy and cases, one is left with the impression that coverage will be
provided if the employer could be sued for having exposed the worker to a hazard in the residential
facility. The policy thus shields the employer from lawsuits that could otherwise be filed without
providing coverage when the worker could otherwise take no legal action. The policy is applied and
interpreted by the decision-makers and it is sometimes interpreted narrowly. For example, in one case
it was suggested that the worker would not be "captive" if accommodation was available eighty-five
km from the worksite. However, because the worker had a temporary contract and was from outside
Alberta, the tribunal accepted his claim: “Given that the contract in question was for only an
approximate four-month period, it seems unrealistic to think, or to expect, that a worker whose home
24
was in another province, and who was working twenty-one days in and eight days out, would set up
residence in [name of city].” x
Business trips are governed by separate policies, and coverage seems broader than with regard to
accidents occurring in remote worksites. For example, British Columbia policy provides that "injuries
or death that result from a hazard of the environment into which the worker has been put by the
business trip, including hazards of any overnight accommodation itself, are generally considered to
arise out of and in the course of employment." y This coverage is broader than that reserved for
accidents in hotels near a remote worksite. This is true in other provinces as well. Although decisions
on this issue are contradictory in their results, some Quebec cases are very restrictive with regard to
coverage for accidents occurring in work campsz while providing a generous interpretation of coverage
for accidents occurring on business trips. aa
In summary, when determining whether a claimant engaged in E-RGM has workers’ compensation
coverage for an injury, we need to think about complexities related to jurisdiction and unclear concepts
for determining whether an injury arises out of and in the course of employment. In the case of
coverage for occupational diseases, exposure in multiple jurisdictions muddies the waters and may lead
to denial of a claim even if work was the cause of the disease. Finally, because some jurisdictions
cover mental health problems associated with exposure to chronic workplace stress while others do
not, 15 inter-provincial exposures would make it more difficult to file a successful claim, a problem that
might be particularly acute for employees of the federal government who work in multiple provinces.
Assignment of modified work and medical evaluations. Once coverage is granted, workers in the
compensation system will be eligible for, and in some provinces, obliged to take up offers of modified
work. While procedures differ between provinces, employers have economic incentives to offer
modified work that allows claimants to remain active in the workplace without undermining their
health. In Ontario, both the employer and the worker have a legal obligation to cooperate in the early
return to work process, and doctors are not called upon to approve the work proposed. In contrast, in
25
Quebec, the employer may offer modified work but is not obliged to do so; workers are obliged to
perform the modified work only if their treating physician approves the temporary assignment. 39
Several problems arise when it comes time to offer modified work to a worker who lives far from
the job site. First, the worker's ability to do the modified work in itself may not be problematic but
getting to the workplace may jeopardize his health. Some decision-makers refuse to consider the health
effects of travel between the worker's home and the new assignment and conclude that if the tasks
assigned are safe, then the travelling arrangements are irrelevant. bb Others include the evaluation of
travel in determining the legitimacy of the worker's refusal to take up the modified work. cc In Quebec,
where the worker's doctor has to approve the modified work, there are cases where the doctor includes
travel requirements and their impact on the worker's family responsibilities in refusing to approve an
assignment. dd Assignment of modified work to temporary foreign workers is further complicated by
immigration rules as work visas may not be compatible with the modified work assignment. ee
Another issue that arises in early return to work is that fly-in/fly-out or drive-in/drive-out workers
are usually hired on rotations that require intensive work over, for example, seven, fourteen, or twenty-
one days followed by several days off, allowing them to return home between rotations when feasible.
When light work is offered, the worker's health may not permit intensive work so the alternative work
may be only for a few hours a day, every day, potentially compelling the worker to stay in the remote
location indefinitely. The worker must choose between remaining in the remote location or seeing
benefits cut if he or she returns home.
Problems in medical evaluation arise particularly for temporary foreign workers when the worker
returns home and can only access health care providers who are unknown to the WCB managing their
claim. Credibility of medical opinions can be questioned particularly when the opinion is written in a
language that is not the dominant language in the jurisdiction managing the claim. In other situations,
specialists may not be available in the home locality, while they are available in the province managing
the claim. Finally, as key informants in Alberta told us, the inter-provincially mobile workers in the oil
26
industry tended to work for sub-contractors who provided labor expected to be fit for work. This
suggests that it is unlikely these sub-contractors would have light work available for these workers.
Benefits. Once a worker has coverage, mobility can affect the level and duration of benefits
provided. Three issues arise: the amount of benefits payable in a given jurisdiction; the risk of
suspension of benefits if a worker fails to take up an offer of modified work proposed by the employer;
and, the calculation of the residual benefits once a worker has reached maximum medical recovery.
The first issue is straightforward. To illustrate, since September 2018, there is no maximum
insurable earning ceiling in Alberta, as is the case in Manitoba, which means that a worker earning
$150,000 per year would receive ninety percent of his net earnings as compensation while unable to
work. ff In Nova Scotia in 2018, the same worker would receive seventy-five percent of net earnings
based on an annual salary of $59,800 for the first twenty-six weeks of disability after which benefits
would be equal to eighty-five percent of net earnings based on the same amount. gg A Nova Scotian
offered the option of filing at home rather than Alberta would be severely under-compensated if he
chose to file in his home province as he has demonstrated an earning capacity of $150,000. By
choosing to return home, he acquiesces to an earning capacity of $59,800. A system that compensates
for loss of earning capacity and that precludes evidence of a higher real earning capacity disadvantages
the higher earner. Given that the purpose of WC is to support workers in maintaining their earning
capacity, it is clear that Nova Scotian benefit levels hugely underestimate the loss of earning capacity
of many Nova Scotian residents in the interprovincial mobile workforce.
The second issue, mentioned in the section on modified work, is that although mechanisms of
imposing penalties differ, in all provinces a worker could be penalized for declining the offer of
modified work even if the option for modified work implies long-term residence at the work site.
Thirdly, once a worker has achieved maximum medical recovery, in all provinces they are
evaluated to determine capacity to return to pre-injury employment. If the impairments attributable to
their injury preclude return to pre-injury employment, WCBs will determine what suitable work they
27
might be able to do. This will enable determination of the potential income that a worker could earn
from this "suitable employment" and that amount will be deducted from their benefits. In some
provinces the deduction is almost immediate, while in Quebec, up to one year of full benefits is
provided to give them time to seek alternative employment. 40 Mobile workers are particularly
disadvantaged by this mechanism called ‘deeming,’ as, with few exceptions, they will be deemed
capable of earning a salary payable in the labor market in which they were injured even if they no
longer live and will likely no longer work in that region. This can create extreme hardship as in the
case of temporary foreign workers who are deemed capable of earning Canadian wages even if their
health no longer allows them to access visas to work in Canada, a situation critiqued by Danielle Allen.
41 (p 151) Similar problems arise when Newfoundland residents are deemed capable of earning Ontario
income levels, even though they are no longer in a position to travel to Ontario for work. hh Board
policy in the provinces we studied usually followed this reasoning, as did some appeal decisions. ii
A 2017 Ontario appeal tribunal decision (one that deviates from previous decisions and policies in
all provinces studied) took a different approach and may lead to fairer treatment for workers injured
while working in a wealthy jurisdiction who reside in a less wealthy province or country. Nine years
after the worker's injury, the appeal tribunal in Ontario overturned the board’s decision in a case
involving a temporary foreign agricultural worker who had returned to his home in Jamaica after he
hurt his back. The board had deemed he was able to earn Ontario minimum wage as a cashier even
though minimum wage in Jamaica was sixty-three dollars per week for a forty-hour week. In the words
of the Appeal Tribunal, "work which must be performed in the Ontario labor market is not work which
is available to the worker." jj It is too early to determine whether this decision will have an ongoing
impact on policy in Ontario or in other provinces.
Rehabilitation and return to work. Workers who were mobile at the time of injury will be
presumed to be able to continue to be mobile workers once their injury has healed, and sometimes the
worker with a reduced earning capacity no longer wishes to travel for work. This may prove to be a
28
problem as refusal of alternative employment may also affect their benefits. The difficulties associated
with "personal" travel to and from work are not always considered when evaluating the worker's ability
to return to work after injury and those workers who decline opportunities offered may see their claims
closed.
A study in the USA found that workers living in rural areas and small towns are more at risk for
long-term work disability and the authors found that the impact of work commuting and residential
location became more important as the duration of disability increased. 42 Similar results with regard to
rural residency and disability duration were found in a study using Alberta WC data. 43 These results
suggest that the rehabilitation mechanisms available in WC systems may not work as well when
applied to mobile workers in these situations.
Access to representation and appeals. Temporary foreign workers, and to a lesser extent internally
mobile workers who return to their home province after work injury, are disadvantaged when the time
comes to exercise their rights in appeal, or in the event that the employer appeals the acceptance of
their claim in their absence. kk In a province where tens of thousands of temporary foreign workers
were engaged at the time of our interview, an informant whose mandate it was to provide support to
injured workers in the appeal process told us that there were no temporary foreign workers in that
province and that claims for injuries sustained by workers living out of province had never come up. In
contrast, as we have seen in the previous section, important legal victories for temporary foreign
workers who were under-compensated because of the deeming rules applied by the compensation
board in Ontario have made a significant difference in the worker's benefits and his ability to survive
after his injury. Reduced access to appeals, representation, and legal expertise are among the
difficulties that arise when the province of injury is outside the worker's province or country of
residence. Testifying at a hearing held thousands of miles away from a worker's home is not
economically viable and, in the case of temporary foreign workers, it may also be impossible to obtain
the required visa to attend the hearing in person.
29
What are the implications for our understanding of regulatory effectiveness?
Several of the issues we encountered in this study have been documented in other jurisdictions. For
example, OHS challenges for temporary foreign workers and migrant workers more generally have
been documented both in Canada, 6, 44, 45 the USA, 46, 47 and the European Union.48 They are known to
be exposed to inferior working conditions and to have limited voice because of their precarious
migration status. Despite decades old federal and state regulation on the issue in the USA,49 the quality
of the housing provided to migrant agricultural workers remains sub-standard and perilous for their
health. 50 This is also true in France 51 and the issue has been raised in many Canadian studies as well,
although few studies look at WC issues. 41
On the other hand, regulatory effectiveness of OHS and WC legislation applied to the internally
mobile workforce is rarely discussed in the literature. They are less visible than international migrants
because freedom of movement between provinces, guaranteed in the Canadian constitution, implies
that no particular permits need to be obtained when working in another province. Workers become
visible once they're injured and compensated so if coverage is denied, they remain invisible. If
coverage is granted, they may well be statistically visible in one province while living with a disability
in another. This has repercussions for source communities and provinces that may bear the burden of
health care and social security costs if compensation is not granted or proves inadequate.
In some provinces, selective strategies to address OHS challenges have been developed by unions,
although we did not find any example of a systematic strategy to ensure protections for any specific
category of the mobile workforce. Walters and colleagues 52 found in a related study that some unions
have mobilized new technologies as tools to get workers involved in health and safety issues when
they are the most available -- while being transported by the employer to and from the closest
municipality. Health and safety information is more welcome when received in a text message while
on a bus going to a mine site than it would be if sent during the very long work shifts, or during time
while workers are at home with their families. 52
30
Interviewed members of OHS inspectorates and regulators were aware of the OHS mobility-related
challenges particularly with regard to temporary foreign workers, although it was much less evident
with regard to other categories of the mobile workforce. While temporary foreign workers had reached
the radar screen of some regulators, our informants did not often identify effective solutions for the
protection of these workers. The challenges are significant and go beyond language barriers as the
scenario described by a labor inspector interviewed in a study in Ontario by MacEachen and
colleagues 53 illustrates, “I have been in some greenhouses where the offshore ... workers speak
English, but were giving me the eye of, ‘Do not talk to me because I don’t need to go home because of
you. As much as I can speak English, I don’t speak English, do not talk to me mister.’ (Inspector 12).”
If workers fail to claim compensation, or if they are undercompensated because they are no longer
in the jurisdiction, the costs of their injuries will not be considered when it comes time to develop
intervention priorities for inspectorates. In Canada, workers will have access to health care if they
return to another Canadian province. The fact that that health care is attributable to a compensable
injury may be eclipsed if the worker has lost his benefits because he quit his job rather than taking up
modified work in another province. If benefits of last resort are paid to the family because the worker
has lost WC benefits, these costs will also be invisible to the OHS regulator in the province where the
injury occurred.
Similarly, in terms of priorities, the exclusion of travel to and from work from the purview of
employer responsibilities, and by extension, from those of the labor inspectorates, is a key challenge
for the protection of mobile workers' health. The costs of these injuries are not counted in the
compensation costs of a given industry, nor will they be counted in Canada as costs relating to
employment. 18 As a consequence, no economic incentive is provided to employers to prevent or
mitigate the risks associated with commuting even when company policies around weather-related
closures, and shift and rotation scheduling can exacerbate those risks. Nor do regulators feel the need
to exercise oversight on commuting conditions – this responsibility generally falls to the federal,
31
provincial, or local police. Workers, on the other hand, may have huge economic incentives to
undertake dangerous commutes as well as psychological incentives when human consequences result
(as when a homecare worker or nurse does not take to the road to provide care to a housebound client).
25 We need to look at protection from dangerous commuting conditions and bolster workers’ right to
refuse dangerous working conditions including commuting conditions. We specifically need to address
the shifting status of the commute, a challenge that relates both to OHS and to WC coverage. This is an
issue that is particularly important in North America.
Regulators also need to address medical surveillance and tracking of exposures and new strategies
need to be developed with regard to the intensification of work and the extensive hours of work
associated with certain categories of E-RGM. Fatigue is a major issue for many categories of mobile
workers -- a visible hazard for transport workers whose fatigue is the object of regulation 7 but
invisible for other E-RGM workers because of the invisibility of non-compensable commuting
activities. In those cases, responsibility for prevention of that fatigue, which currently rests on the
shoulders of the workforce, should be shifted to those who control the organization of work. The
invisibility of mobile workers, as has been found with the invisibility of precariously employed
workers and employees of sub-contractors, 8, 54 makes tracking of exposures to hazards particularly
ineffective. Rehabilitation programs and policies are known to work poorly for precariously employed
workers, including subcontractor employees, 55 and these challenges are exacerbated when the
precariously employed are also mobile workers.
As we've seen there seems to be a particular challenge in Canada because of the distribution of
powers between the provinces and the federal regulator and the variations between the regulatory
frameworks. It is unlikely, and no doubt ill advised, to suggest that OHS and WC legislation should be
standardized across the country. The Inter-jurisdictional Agreement between WCBs has sometimes
failed to guarantee coverage to the mobile workforce particularly with regard to occupational disease
32
where exposures to contaminants, noise, or repetitive work have occurred in several Canadian
provinces, but also in some cases of injuries sustained at work.
Increasing inspectorate resources must underpin the successful implementation of rights including
the right to refuse dangerous work in remote workplaces. Perhaps new technologies can be harnessed
to facilitate "access" despite the distance between the inspector and the remote worksite; we've seen
little evidence of this in the current study.
Living at work and living at home are rarely addressed by regulators. Provision of adequate
housing that is not only sanitary but designed to ensure workers' safety while living remotely,
sometimes in isolation, should be required by explicit regulatory provisions and addressed by the
workplace parties in those cases where workers are obliged or encouraged to live in accommodation
provided by the employer. Adequate access to health care and other amenities in the community and
adequate and accessible communication services allowing for contact with home should be ensured.
Conclusion
Steps need to be taken to put an end to the invisibility of the mobile workforce, across the spectrum
of mobility from extended daily commutes to -- and within -- work through interprovincial and
international mobility for work involving often extended absences from home. This can be done by
identifying and responding to their specific needs in the design of regulations and policy, and in the
implementation of health and safety management and assessments of employers’ general duties, so as
to provide workers with a safe working environment, a safe living environment while they are at work,
and safe conditions as they travel to and within work. As with precarious employment 3 and so-called
non-standard employment, 2 drawing the attention of scholars and policy makers to E-RGM as a
characteristic of employment that requires greater attention of regulators, employers, unions, and
others responsible for OHS and WC would be a first step in ensuring that contemporary organizational
restructuring and related E-RGM in its many facets does not produce passive deregulation of
workplaces and working conditions.
33
While some workers are both precariously employed and engaged in E-RGM ,7, it is not the case
for everyone. Gold-collar mobile workers, 56 while exposed to hazards similar to those of other mobile
workers, may have far better support in dealing with these hazards than the precariously employed but
equally mobile blue-collar 57 or white-collar workers. As discussed in a recent issue of Industrial
Relations/Relations Industrielles, 58 a full inventory of similarities and distinctions between the OHS
challenges raised by non-standard or precarious employment 2 and extended or complex E-RGM has
yet to be completed but the issue of transferring risk to those least capable of absorbing its
consequences appears to be common to both precarious employment and E-RGM. As posited:
Non-standard employment contracts are known to transfer the risk of ‘down time’ to the
precariously employed workers. Regularly employed workers are paid whether or not
they are with a client, while recruitment through temporary contracts and imposition of
just-in-time schedules allows the employer to avoid paying a worker when demand is
low, a strategy that allows the employer to remain competitive in a globalized market.
The worker assumes the cost that was historically assumed by the employer. Similarly,
when workers are continually 'on the move' going from one orchard to another, one
household or worksite to another, and one employer or one contract to another, they are
rarely fully compensated for the financial and other costs associated with accomplishing
these often changing mobilities. They are rarely paid when they are commuting and are
only compensated for travel when demand for their services is high. In many countries,
they will not be compensated if they are injured during the commute. And in both
precarious employment and with these kinds of E-RGM, the ability of workers to
organize collectively and to resist exploitation is often undermined, as is the ability of
the regulator to ensure practices are safe. Risks are transferred to individuals, and the
ability to respond collectively, be it by organized labor or by the state, is thwarted. 58 (p
12)
34
International conventions could provide guidance in improving the regulatory protections in
Canada even though they may not be legally binding. In some cases, labor legislation in the individual
jurisdictions complies with these conventions, however, there are many situations in which there is a
regulatory vacuum either because of the inadequacy of inter-jurisdictional protections or because
activities related to E-RGM do not fall under the purview of legislation (even though they would do so
in other countries). As a federation, it is normal that regulatory protections differ from one provincial
jurisdiction to the next as provinces are sovereign and determine protections in light of their socio-
political and economic contexts. This said, revisiting legislation and contractual practices to ensure
OHS and WC legislation applies fairly to the E-RGM workforce would lead to better protections for
these workers who are often invisible to regulators.
While it is idealistic to believe that when made aware of the regulatory gaps identified in our study
regulators in all jurisdictions will seek to fill those gaps, mobilization of workers and their
organizations is essential to ensuring that the mobile workforce becomes more visible and receives
better protections. Researchers, workers, and organizations serving the international mobile workforce
have brought forward essential proposals to improve the voice of those workers by addressing their
“deportability” in a way that will put an end to precarious migration and allow all international migrant
workers to use their voice on OHS issues without fear of reprisals. 4, 5, 7, 27, 28, 58 OHS and WC
challenges for internally mobile workers must also be placed on the agenda of unions, workplaces, and
regulators to guarantee their equal access to health and safety and fair workers’ compensation.
Acknowledgements
This article reports on research undertaken as part of the On the Move research partnership led by Dr.
Barbara Neis. An overview of the full research program is available at
http://www.onthemovepartnership.ca/. Many research assistants from the Faculty of Law at the
University of Ottawa have contributed to the research underpinning this article including Geneviève
35
Bernier-Gosselin, Pierre Brabant, Brendan Carruthers, Rita Dao, Camille Lanthier-Riopel, David
Lecours and Caroline Soule. The authors are also grateful for the very useful suggestions made by the
anonymous reviewers and the editors. Finally, they are deeply indebted to Amanda Butt from Safety Net
at Memorial University for her meticulous copy editing of the manuscript.
Funding
On the Move is supported by the Social Sciences and Humanities Research Council through its
Partnership Grants funding opportunity (Appl ID 895-2011-1019), the Research & Development
Corporation of Newfoundland and Labrador, the Canada Foundation for Innovation, and numerous
university and community partners in Canada and elsewhere.
Declaration of conflicting interest
We declare no potential conflicts of interest with respect to the research, authorship, and/or
publication of this article.
Notes
a. Canada Labour Code, R.S.C., 1985, c. L-2.
b. Article 3 f of the Violence and Harassment Convention, adopted by the General Conference of the
International Labour Organization on June 10th, 2019.
c. Hunt et 9185-9280 Québec inc., 2015 QCCLP 1714.
d. Thibault et Shawinigan Lavallin inc., [1987] C.A.L.P. 703.
e. Balikama on behalf of others v. Kahaira Enterprises and others, 2014 BCHRT 107, par. 124.
f. Interjurisdictional agreement on workers’ compensation, consolidation, document on file with the
authors.
36
g. Romaguer et Excel Human Resources, 2009 QCCLP 3012; the worker was eventually
compensated in 2009 for an injury sustained in 2005.
h. Soucy v. P.G. Québec, 2007 QCCA 1482.
i. Hicks et Ressources humaines et développement des compétences Canada et R.H.D.C.C. Direction
travail, 2013 QCCLP 5925.
j. Gyptech Acoustique inc. et Intérieurs Protouch inc., 2010 QCCLP 4543, revised in Gyptech
Acoustique inc. et Doyon, 2011 QCCLP 3646.
k. 2004 ONSWSIAT 311.
l. Beauvais et Élix et Personnel Alter Ego inc & C.S.S.T. Richelieu (2003) AZ-50175973 (CLP).
m. Fortier et CLSC Basse Ville Limoilou Vanier, (2002) AZ-01307640 (CLP); Larivière et C.L.S.C. J-
Octave Roussin, (2000) AZ-00300348 (CLP); Coop. Solid. Serv. Domicile Québec et Côté, (2009)
AZ-50588979 (CLP); Martel et CSSS Lucille-Teasdale 2010 QCCLP 7727 (homecare worker
involved in an accident 15 minutes before arriving at her first client’s home – claim denied);
Géronto + inc. et Joseph 2015 QCCLP 2466 (homecare worker injured before arriving at her first
client her claim is denied, but she’s referred to the no-fault automobile insurer in Québec, the
SAAQ, by the judge.
n. MPI-Moulin à Papier Portneuf et Sylvestre, 2014 QCCLP 2428.
o. Roy c. Société canadienne de la Croix-Rouge, (1998) AZ-98301452 (CLP).
p. International humanitarian missions have led to many injuries sustained by Canadian workers and
covered under the Quebec workers’ compensation legislation: M... B..., et S... A... et CSST, (2006)
AZ-50374590 (CLP), Roche ltée (Groupe conseil) (2004) AZ-50258118 (CLP), Vaillancourt et
Agence Canadienne de Développement International, (2001) AZ-01303585 (CLP), Sicard et
Communauté Urbaine de Montréal (1999) AZ-99301709 (CLP), Croteau et Ville de Montréal,
2010 QCCLP 7244.
q. Sergerie et Groupecho Canada (2007) AZ-50449130 (CLP).
37
r. WSIAT Decision No. 1572/16.
s. RCSM II, “C3-20.00: Employer Provided facilities”. See for example WCAT-2014-03717 (Re),
2014 CanLII 91576 (BC WCAT), http://canlii.ca/t/gk86z (accessed on 11 February 2019).
t. AB WCAC 2015 48909.
u. AB WCAC 2013 0703.
v. AB WCAC 2015 1175; AB WCAC 2015 0447.
w. Compare AB WCAC 2014 1107 with AB WCAC 2016 0494.
x. AB WCAC 2014 0985; AB WCAC 75503.
y. Compare RCSM II, C3-19.00D Business trips to “C3-20.00: Employer provided facilities.”
z. Boudreau et Groupe Compass Ltée et CSST, 2010 QCCLP 3313; Demontigny et Groupe
Plombaction inc., 2014 QCCLP 3173
aa. Zaheeruddin et Canada (Ministère de la Défense Nationale), [1991] C.A.L.P. 935; Hrynkiw et
Alcan Aluminium Ltée, [2006] C.L.P. 729; Cégep Édouard-Montpetit et Fortier, 2013 QCCLP
6329; Tremblay et Société de transport de Montréal-Directions corporatives, 2013 QCCLP 5735.
bb. Bilodeau et Transport Doucet & fils et CSST, 2013 QCCLP 5005; Laliberté & associés inc. et Roy,
(2005) AZ-50333314 (CLP).
cc. WSIAT Decision No. 20159/11, paragr. 82 (Ontario).
dd. MC Forêt inc. et CNESST, 2016 QCTAT 3315.
ee. The employer pled unsuccessfully that the worker's deportation should justify the suspension of his
compensation benefits in Salade Etcetera inc. et Mora Figueroa, 2014 QCCLP 937.
ff. Workers’ Compensation Board - Alberta. Changes to Maximum Insurable Earnings,
https://www.wcb.ab.ca/assets/pdfs/employers/EFS_Changes_to_Maximum_Insurable_Earnings.pd
f (2019, accessed 11 February 2019).
38
gg. Association of Workers' Compensation Boards of Canada. Weekly Benefits for Temporary
Disability Summary – 2015, http://awcbc.org/wp-
content/uploads/2013/12/Temporary_Disability.pdf, (2015, accessed 11 February 2019).
hh. There can be exceptions as discussed in WSIAT Decision No. 1720/12; WSIAT No 1617/12.
ii. Gmzun et Cirque du Soleil, 2015 QCCLP 1312; Pépinière 55 inc. et Torres-Angel, 2018 QCTAT
2538.
jj. WSIAT Decision No. 1773/17 (Ontario) paragr. 72.
kk. Les Cochonnailles Champenoises et Petit Renaud, 2012 QCCLP 5865.
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Author biographies
Katherine Lippel holds the Canada research chair in occupational health and safety law at the
University of Ottawa and leads the policy component of the On the Move research partnership. Her
research interests focus on the regulatory underpinnings of practices in workers’ compensation and
occupational health and safety and their role in prevention of occupational injuries and illnesses,
compensation for disability and return to work after injury or illness.
David Walters is an emeritus professor in the School of Social Sciences, Cardiff University, United
Kingdom. His research focuses on various aspects of the work environment and in particular on
employee representation and consultation on health and safety, the politics of health and safety at work,
45
regulating health and safety management, chemical risk management at work and health and safety in
small firms.
... Many people who have continued to travel, by car or public transit, over the past few months are essential workers, who have had higher case rates regardless of their commute mode. (Schwartz 2020, 9) Given this finding, there is a certain irony that workplaces can escape workers' compensation liability for COVID-19 by pointing a finger at the public transport system, as injury sustained in transit to and from work is not usually compensable in North American workers' compensation schemes (Lippel and Walters 2019). The workplaces where these and other low-paid, "essential" workers are employed, including those sent by temporary employment agencies, include large warehouses and food processing plants where working conditions appear to have contributed to the risk of infection and outbreaks. ...
... These workers comprise a significant but largely unknown share of essential workers in Toronto and elsewhere where they sometimes work multiple jobs to make ends meet and are thus mobile between workplaces. 3 These employment characteristics put them at risk of exposures and of exposing others to COVID-19 due to mobility, potential lack of familiarity with worksites and of safety training, and lack of PPE (Lippel 2020). Employment in transient and multiple workplaces also has the potential to constrain their eligibility for workers' compensation by muddying -even more than is the case for other workers -their ability to demonstrate where the exposure occurred (Lippel and Walters 2019). 4 Add to this unclear workers' compensation coverage if the illness is contracted during transit to and from work (Lippel and Walters 2019) and health consequences for these workers are likely to remain invisible to policymakers. ...
... 1 Related discussions of these key concerns can be found elsewhere (Lippel 2020;Lippel, Neis, and James, in press;Lippel and Walters 2019;Neis, Neil, and Lippel 2021;Neis and Lippel 2019). A Zotero database with COVID-19 related references is also available as are other background documents and reports on Canada's mobile labour force on the On the Move Partnership website at www .ont ...
... A British study found that the relative risk of workplace accidental fatalities in the shipping industry was 21 times greater than in the general workforce. 20 As argued by Lippel and Walters,21 E-RGM to, from, and within work can have serious effects on OHS by impacting hazards associated with the journey to work, life at work, and life at home. There are key regulatory challenges associated with work-related mobility including in jobs done in mobile workplaces such as seafaring. ...
... There are key regulatory challenges associated with work-related mobility including in jobs done in mobile workplaces such as seafaring. 1,21 Existing studies recognize some of the OHS challenges arising from seafaring occupations such as constraints on the ability of seafarers to leave the worksite (sometimes even in port), extreme weather conditions, long periods away from home, and living and working on a moving platform. 20 However, most existing research focuses only on exposures at work without considering the journey to work. ...
... In Canada, researchers find that bad weather, poor road conditions, and long commuting may all present OHS challenges for workers. 21 However, the implications of commuting mobility for seafarers are not sufficiently considered in the current OHS legal frameworks in Canada. One study shows that for the first fifteen days on board, international seafarers are more likely to be injured than after ninety days on board. ...
... The sense of loyalty of the Y generation is low compared to other generations and their organizational commitment levels are weak. There are determinations that they attach importance to flexible working style and want to do business using digital technologies (Zemke et al., 2000;Lippel and Walters, 2019). They are highly motivated in setting vision and participating in strategic decisions in organizations. ...
... It does not matter to them whether a job is done in the office or any other setting, as this generation prefers a flexible approach. According to another study, three out of five Millennials think that working in the office is unnecessary to be productive (Zemke et al., 2000;Lippel and Walters, 2019). These results show that the Y generation is sensitive about autonomous attitudes and behaviors. ...
Article
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Purpose There has been a rapid generational change in the business world in Turkey recently, and X generation managers are rapidly leaving their place to Y generation managers. In countries with relatively young populations such as Turkey, management in family businesses passes into the hands of Generation Y. This study aims to examine the moderator role of the difference between old and new generation Y in the effect of self-efficacy perceptions on decision-making strategies. Design/methodology/approach This research, which was designed according to the quantitative research method, was designed according to the cross-sectional survey model, one of the general survey models. The research data were collected from a sample of 441 family business managers determined according to the simple random sampling technique. The data were analyzed and interpreted with various statistical techniques. Data analysis was done with AMOS. 20 and International Business Machines statistical package for the social sciences 22 data analysis programs. Findings According to the analysis findings, there is a significant relationship between the participants’ self-efficacy perceptions and decision-making strategies. Research findings old and new generation Y managers have different decision strategies. The research results showed that the dominant self-efficacy perceptions of the Y generation affect their decision-making strategies. Research limitations/implications This research only examines whether the old and new generation Y perceptions have a moderator function in the relationship between the participants’ self-efficacy perceptions and decision-making strategies. The research is quantitative research limited to family businesses. The results can be compared by repeating the research with other variables and in different samples, for example, by researching in public institutions. In addition, the way of reflecting the differences in perception to the management can be subjected to deeper analysis with mixed studies. Practical implications One of the important reasons for the difference in people’s approaches to events is their personality structure. Generational differences, which have been discussed primarily in recent years, make themselves felt in working life. The new working models arising from the different perspectives of the Y generation differ from the traditional business models. Today, in traditional business models, the manager profile is usually the X generation. However, the process is moving toward gaining essential positions in the management levels of the new Y generation. They put traditional managers in a difficult situation with their impatient behavior and desire to climb the career ladder quickly. Social implications In the studies conducted on the Y generation, it is understood that they do not favor the classical management approach based on the command-command relationship. The sense of loyalty of the Y generation is low compared to other generations and their organizational commitment levels are weak. There are determinations that they attach importance to flexible working style and want to do business using digital technologies. They are highly motivated in setting vision and participating in strategic decisions in organizations. These features differ significantly from the X-generation managers who adopt the traditional management approach. Originality/value Both emotional and cognitive characteristics influence decision-making behavior. The generation gap which shows common personality structures in a certain period is an important predictor of decision-making strategy. Research results and related studies significantly affect the decision strategies of the generation gap. No research has been found comparing the old and new Y generations. In this respect, it is thought that the research will contribute to theory, practice and method.
... In addition to the difficulties mentioned, there are other limitations arising from the weak position of the working class in the labour market (low structural power) [69], so that workers on temporary contracts or belonging to smaller subcontracting firms do not want to exercise their participation rights for fear of being fired and prefer to have their representatives handle occupational safety and health matters [65]. In fact, there is empirical evidence of the difficulties of participation by peripheral workers belonging to the weaker steps of the supply chain [70,71]. In this context, we can conclude that the system has entered a kind of spiral of constant deregulation of working conditions that has a negative impact on workers' health (for example, in Table 5 we have seen how temporary workers and, above all, those belonging to subcontracting companies report more occupational accidents) and, in turn, prevents worker participation and the monitoring and control of their representatives, which feeds back into the spiral of deregulation. ...
... In this context, we can conclude that the system has entered a kind of spiral of constant deregulation of working conditions that has a negative impact on workers' health (for example, in Table 5 we have seen how temporary workers and, above all, those belonging to subcontracting companies report more occupational accidents) and, in turn, prevents worker participation and the monitoring and control of their representatives, which feeds back into the spiral of deregulation. Thus, in addition to reversing this trend, it is necessary to activate a participatory culture in the workplace, developing knowledge and skills in safety and health through joint training systems for representatives and management that improve and clarify roles [70] and quality circles in occupational safety and health in which prevention delegates and workers participate [65]. ...
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The aim of this research was to study the impact of the unitary prevention delegates (UPDs) on the Spanish working environment. To this end, a cross-sectional study was carried out using microdata from the National Survey on Health and Safety Management in Companies (ENGE-2009) with a sample of 5147 work centres. To measure the relationship between the presence of UPD in workplaces with preventive management indicators and damage to health, individual and multiple logistic regression models were carried out, calculating the crude (cOR) and adjusted (aOR) odds ratios by sociodemographic covariates, with their corresponding 95% confidence intervals (95% CI). Ambivalent results were obtained. On the one hand, a positive impact of the UPDs was found, in the management of prevention showing a higher probability of prevention plans being carried out (aOR = 3.97; 95% CI: 3.26–4.83), risk assessments (aOR = 5.96; 95% CI: 4.44–8.01) and preventive actions were planned (aOR = 3.01; 95% CI: 2.55–3.56), as well as 1.56 times less likely to register minor occupational accidents (aOR = 0.64; 95% CI: 0.53–0.76). On the other hand, the presence of the UPDs did not promote the activation of a participatory culture and did not reduce the probability of suffering serious and fatal accidents at work. In conclusion, UPDs need to activate workers’ participation to improve results.
... There is, however, a lack of consensus on the factors that influence workers' health. While certain classic material-level factors, such as work protection, have been extensively investigated [24][25][26][27][28], various hidden factors, such as spiritual-level factors, have not been deeply explored. It is known that workers, especially in low-skilled positions, do not always recognize the value of their work [29]. ...
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Research on the effect of work value perception on workers’ health, especially in emerging economies, is scarce. This study, therefore, explored how work value perception affects the physical and mental health of workers in China. We also examined the mediating role of life satisfaction in the relationship between work value perception and health. Taking a random sample of 16,890 individuals in China, we used ordered probit regression and instrumental variable ordered probit regression to test the links between work value perception and workers’ health based on existence, relatedness, and growth (ERG) theory. The results showed that work value perception significantly affected both the physical and mental health of workers; the results remained robust after solving the endogeneity problem. The subsample regression results showed that work value perception significantly affected the physical and mental health of female, male, married, unmarried, religious, and nonreligious workers. Furthermore, life satisfaction mediated the effect of work value perception on workers’ health. These results shed light on the relationship between work value perception and health and thus have implications for improving workers’ physical and mental health. This study can provide a reference for both governmental and corporate policymakers in emerging economies.
... The pervasive and often complex mobilities typical of a significant proportion of the construction sector make workers and their families vulnerable to disruptions in work, travel, and family lives, as well as to infection, as in the context of the current COVID-19 pandemic (Neis et al. 2020). Workers who experience travel-related infections, injuries and fatalities may or may not be eligible for workers' compensation (Lippel and Walters 2019). Technological changes in areas including automation (such as driverless vehicles) and prefabrication, are beginning to transform work roles. ...
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This introduction serves several purposes. First, it provides some context around the phenomenon of Employment-Related Geographical Mobility. Second, it introduces the papers included in this Special Issue.
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Background: Little is known about the work-related injury and illness risk of out-of-province workers. This study examines whether there are differences in work-related injury and illness claim rates between within-province and out-of-province workers in British Columbia (BC), Canada. Methods: Workers' compensation claim data for injuries and illnesses in BC from 2010 to 2017 were linked with denominator data from Statistics Canada. Multivariable negative binomial regression estimated the claim rate ratio (RR) and 95% confidence intervals (CI) for out-of-province workers with all, health care-only (HCO), short-term disability, long-term disability, and fatality (SLF), and serious injury (SI) claims, compared to within-province workers. Results: Compared to within-province workers, out-of-province workers had a lower total claim rate (RR: 0.54, 95% CI: 0.52-0.57), adjusting for sex, age, industry sector, and year. Differences in rates differed by claim type, with the largest differences for HCO claims (RR: 0.49, 95% CI: 0.47-0.52) and smallest differences for SI claims (RR: 0.85, 95% CI: 0.78-0.92). Sex-stratified models showed larger differences for males than females, with older female out-of-province workers having elevated SI claim rates. Industry-specific models showed that, even in sectors with high proportions of out-of-province workers' claims, these workers have lower claim rates than within-province workers. Conclusions: Out-of-province workers generally have lower claim rates than within-province workers. The overall duration of work exposure, and underreporting or underclaiming, are factors that may explain these lower claim rates. Understanding the determinants and differences of these claim rates may improve the administration and adjudication of claims while also identifying where further prevention measures may be merited.
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In light of COVID-19 and elevated concerns for the health of older Canadians receiving care, this Policy and Practice Note explores the confluence of the current home care policy landscape and the organisation of personal support worker (PSW) work, and highlights the need to consider governance of PSW work generally, and in-home and community care especially. PSWs are currently not professionally regulated, nor is there a central site documenting location, education, or any form of verification of the PSW workforce. Home care PSWs often provide physical care in isolated settings with no in-person supervision. In home and community health care, complaints about PSWs can be scattered among different service providers or client files not linked to or searchable by PSW name. This policy note explores how these factors and the currently unregulated status of PSWs affect home care safety in general as well as in the context of COVID-19, Ontario’s decentralised home care system, and efforts towards professional regulation.
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Research in contentious and fluctuating political and economic conditions presents many challenges. Given the potential for the politicization of research in an era where information is rapidly changing, there is pressure to consider pathways to ensure quality and transparent research. This perspective builds upon a tradition of considering the methodological implications associated with conducting research within volatile settings. The paper reflects on the research process associated with interviewing mobile workers at BC Hydro’s Site C Project (hydroelectric dam) in northeast British Columbia, Canada. Based on these reflections, we explore opportunities to extend the transparency of research in volatile settings by considering the broader political and subjective influences that shape credibility and validity as universities, industry, and labour engage with the research process.
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Objectives To examine whether differences in work disability duration between out-of-province and within-province workers differed by industry and jurisdictional context. Methods Workers’ compensation data were used to identify comparable lost time, work-related injury and musculoskeletal disorder claims accepted in six Canadian jurisdictions between 2006 and 2015. Out-of-province workers were identified as workers who filed claims in a different provincial jurisdiction to their province of residence. Coarsened exact matching was used to match out-of-province workers with within-province workers based on observable characteristics. Quantile regression models were used to estimate differences in cumulative disability days paid between out-of-province workers and within-province workers at different percentiles in the disability distribution, adjusting for confounders. Results Compared with within-province workers, out-of-province workers were paid more disability days even after matching and adjusting on observable characteristics. Differences between the two groups of workers were observed for short-duration, medium-duration and long-duration claims (differences of 1.57, 6.39, 21.42, 46.43 days at the 25th, 50th, 75th and 90th percentiles, respectively). Industry-specific models showed that differences were largest in construction, transportation and warehousing, and mining, quarrying and oil and gas extraction. Jurisdiction-specific models showed that differences were largest in the western provinces where out-of-province workers were concentrated in those sectors. Conclusions Out-of-province workers are a vulnerable group with respect to risk of longer work disability duration. Workers’ compensation systems, employers and healthcare providers may need to tailor specific interventions for these types of workers, particularly those employed in resource economy-dependent regions that are far from their regions of residence.
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Globally, employment-related geographical mobility (mobility to and within work) is a pervasive aspect of work that has potential health and safety implications. As an introduction to this special issue, this article defines the mobile workforce as those who engage in complex/extended mobility to and within work encompassing >two hours daily, less frequent but more extended mobility between regions and countries, and mobility within work such as between work sites or in mobile workplaces. Focusing on the Canadian context, we discuss the challenges associated with developing a statistical profile for this diversely mobile workforce and provide an overview of articles in the special issue identifying key health and safety challenges associated with extended/complex employment-related geographical mobility. We estimate that up to 16 percent of Canada’s employed labor force (including those commuting > one hour one-way, temporary residents with work permits, and transportation workers) engage in extended/complex mobility related to work.
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Seafaring involves multiple patterns of mobility. Ships are mobile workplaces that connect and disconnect from land. Many move within and between national boundaries. Maritime labor forces are recruited from multiple locations engaging in varying commutes to and from homeports—international commutes for international labor forces and internal commutes for national labor forces. Mobilities expose seafarers to a range of occupational health and safety hazards, which can be exacerbated by mobility-related constraints on regulatory protections. Based on legal analysis and twenty-five semi-structured interviews with Canadian seafarers, managers, and key informants, this exploratory study examines how employment-related geographical mobility may create occupational health and safety challenges for Canadian seafarers working on the Great Lakes and the St. Lawrence Seaway. Findings show that few legal instruments are available to protect seafarers from commuting-related occupational hazards and that occupational health and safety challenges are numerous. Seafarers’ occupational health and safety rights on board are restricted and they are systemically discouraged from raising safety concerns.
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The spectrum of employment-related geographical mobility ranges from hours-long daily commutes to journeys that take workers away from home for an extended period of time. Although distance and travel conditions vary, there is a strong consensus within existing literature that mobility has physical, psychological, and social repercussions. However, is time spent traveling considered as working time? This question is crucial as it dictates whether or not workers can effectively access different sets of labor rights. The objective of this paper is twofold. First, contributing to a deeper understanding of travel time by offering a more sustained and complex representation of the various employment-related travel schemes. Second, assessing the circumstances under which travel time counts as work time with regard to the employment standards legislation in force in four Canadian provinces: Quebec, Ontario, Alberta, and British Colombia.
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This paper critically examines official statistics on workplace fatalities in Canada. Each year the Association of Workers’ Compensation Boards of Canada reports on the number of workers who die from a work-related injury or illness/disease. The problem, however, is that these data report the number of deaths that were accepted for compensation; it is not a system for tracking all work-related deaths. Drawing from a range of data sources and employing a broad definition of what constitutes death at work we attempt to generate a more accurate estimate of the number of work-related fatalities in Canada. In so doing our goal is not to produce a definitive number of annual deaths at work – an impossibility given the paucity of data sources – but instead challenge dominant ways of conceptualizing what constitutes a work-related fatality, and in so doing contribute to ongoing efforts to raise academic, political and public awareness about this important issue. In this sense our goal is to question whether official statistics regarding workplace fatalities are complete when set against a broader understanding of what constitutes death at work.
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This study examines the occupational health and safety experiences of migrant workers employed as live-in caregivers in Fort McMurray, Alberta, Canada. Interviews with and surveys of caregivers identify four categories of common occupational hazards, including fatigue, psychosocial stress, physical hazards, and exposure to harassment and abuse. These hazards are systemically perpetuated, made invisible, and rendered irremediable by intertwined (im)mobilities. At the macrolevel, they include highly circumscribed and precarious conditions of transnational care migration such as indenturing to private and underregulated recruiters, federal policies that tie status to employers and employment, and changeable, rule-bound pathways to permanent residency. At the mesolevel, we find a volatile mix of mobilities and immobilities associated with employment in the oil economy of Fort McMurray, such as high population mobility and turnover, long work and commuting hours, and remoteness. And, at the microlevel, we find the everyday immobilities and highly circumscribed conditions and complexities of working and living with employers in private homes.
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This article reports on a study of occupational health and safety (OHS) challenges for temporary foreign workers (TFWs) in low- and high-skilled occupations, based on twenty-two cases drawn from a broader study in three Canadian provinces. Interviewees in construction, meat processing, hospitality, and fast food reported concerns regarding working conditions and OHS issues. They include precarious migration status affecting voice; contrasting access to social support; and mechanisms undermining regulatory effectiveness. Sources of vulnerability include closed work permits (making workers dependent on a single employer for job security and family reunification); ineffective means to ensure contractual compliance; and TFW invisibility attributable to their dispersal throughout the labor market. Violations include increased workload without an increase in pay and non-compliance with OHS and contractual rules without oversight. Positive and negative practices are discussed. Recommendations include improving migration security to preserve worker voice and facilitating communication between immigration and OHS authorities.
Chapter
No-fault compensation systems designed to provide economic support to those who are injured or become ill because of their work are available in all Canadian jurisdictions. Some provinces, such as Québec, also have salary replacement support provided by public no-fault compensation systems for those injured by motor vehicle accidents or crime. Each compensation system within a given province has its own rules that are sometimes, but not always, designed to promote either return to work after injury or integration into the labour market for those who are unemployed or not yet employed at the time of their injury. In this chapter we will first compare various parameters of workers' compensation systems in force in the provinces of Québec and Ontario in order to identify the regulatory mechanisms that either aim to promote return to work or that inadvertently provide disincentives for a successful re-integration into pre-injury employment. We will then turn to compensation systems in force in the province of Québec that provide compensation to victims of motor vehicle accidents or crime. We will look at the design of vocational rehabilitation systems offered to those in work at the time of their injury, and compare them with those offered to workers covered by workers' compensation. We will also focus on mechanisms designed to support integration into the workforce of those without employment at the time of injury, including those injured in childhood and those injured while unemployed. Results of all these analyses will be interpreted in light of rules governing the equality rights of people with disabilities, rights rooted either in human rights legislation or in the Canadian Charter of Rights and Freedoms. This study will allow us to identify economic incentives and equity issues, that drive the behaviour of workplaces, compensation systems and workers, including both those intended by the policy makers and those, unanticipated, resulting from practices of key stakeholders that are driven by current policies. By comparing different categories of systems (workers' compensation, motor vehicle compensation and crime victims' compensation), within a given province, and between different provinces (workers' compensation), we will be able to identify strengths and weaknesses of particular systems and specific rules, which will allow us to suggest ways of moving forward to promote equitable and effective support for those injured or made ill either by reason of their work, a motor vehicle accident or a crime in order to promote sustainable participation in the labour market.