When you hear the term "hazard assessment", your mind probably goes immediately to the standard form "Field Level Hazard Assessment", "Field Level Risk Assessment", "Safe Work Procedure", "Job Hazard Matrix", or other aptly titled daily documentation that you require your workers to fill out prior to the start of a shift, or otherwise performing work.

But what if we told you that, while each one of those is certainly a written report of the hazard assessment, the hazard assessment itself was actually something else?

Confused? You're not alone. But before we address that confusion, let's be clear about one very important thing: that none of what we're about to say is meant to take away from the importance (and necessity) of completing your daily FLRA or other standard form documentation. Indeed, doing so is an important part of addressing the hazards of complacency and changing work conditions, and taking all reasonable steps to protect the health and safety of workers at the work site.

With that being said, the fact is that under the Occupational Health and Safety Code, the term "hazard assessment" isn't actually defined. A "hazard assessment" simply refers to the process of assessing the work site and identifying existing and potential hazards before the work begins. Taken at face value, that could mean something as simple as looking out over the work site, talking about what could go wrong, and then talking about ways to prevent that from happening. If you've done that, you've completed a hazard assessment - even if you don't subsequently record that assessment and discussion on paper. Yes, the law says that you need to make a "report" of the results of the hazard assessment, but the key here is understanding that just because you haven't "written it down", doesn't meant that you haven't actually "done it" (i.e. see R. v. Lonkar Well Testing Limited (2009)). That's an important distinction in law, particularly since there is no requirement for the report to be made contemporaneously. When you consider that in certain circumstances a unique hazard assessment need not be performed for each work site, and that a third party's written hazard assessment and/or manufacturer's specifications and corporate safety manuals may suffice for satisfying the "report" requirement (even if they are generic), whether an employer has or hasn't complied with the legal requirements for hazard assessments under the Occupational Health and Safety Code in any given case isn't nearly as simple as many (including OHS officers) may make it seem.

Why does it matter? When attending at the scene of an accident, one of the first questions OHS officers will ask is whether a hazard assessment was performed that day and/or for that task, and for a copy of it. In those cases where the employer's FLRA (or other standard form documentation) wasn't completed that day or prior to the task in question, many employers will respond by saying that they "didn't do one", even though they very well might have. And, with that one response, they've unknowingly opened Pandora's box, and set the tone for the investigation (and potential charges) that may follow!

While we previously discussed the importance of establishing legal privilege over accident investigations, it's nuances like this that are crucial for employers to understand, and that further underscore the importance of retaining experienced OHS counsel like F2 Legal Counsel immediately following an accident and when facing occupational health and safety charges.