Looking to report a near miss? Are you sure you need to?

Generally speaking, most employers know that "serious workplace injuries and incidents" are to be reported to Alberta OHS "as soon as possible".

Similarly, most employers know that "serious injuries and incidents" are identified in s. 40(2) of the OH&S Act as including:

(a)    an injury or incident that results in death,

(b)    an injury or incident that results in a worker being admitted to hospital, and for the purposes of this clause, "admitted to a hospital" means when a physician writes admitting orders to cause a worker to be an inpatient of a hospital, but excludes a worker being assessed in an emergency room or urgent care centre without being admitted,

(c)    an unplanned or uncontrolled explosion, fire or flood that causes a serious injury or that has the potential of causing a serious injury,

(d)    the collapse or upset of a crane, derrick or hoist,

(e)    the collapse or failure of any component of a building or structure necessary for the structural integrity of the building or structure, or 

(f)    any injury or incident or a class of injuries or incidents specified in the regulations.

While the reporting requirements for serious injuries and incidents are, for the most part, relatively straight-forward, the same cannot be said for the reporting of "near misses".

Before we jump into that, however, let's be clear about one thing: the Act itself doesn't actually include the term "near miss". The section that creates the "near miss" reporting obligation, s. 40(5) of the Act, actually refers to any injury or incident “that has the potential of causing serious injury to a person”. While it’s clear the section includes people even if they aren’t workers (i.e. given the use of the term “person”, such injuries or incidents involving visitors and the like must also be reported), exactly what constitutes an injury or incident that “has the potential of causing serious injury” isn’t nearly as clear cut, and is something that even Alberta OH&S appears to be having issues with.

As indicated on its official Government of Alberta website, OH&S refers to a "near miss" as a “potentially serious incident” or "PSI", which they go on to define as any incident where a reasonable and informed person would determine that:

(a) the injury sustained requires medical attention beyond first aid; or

(b) the incident could have caused serious injury and:

(i) the hazard was not identified in the hazard assessment; or

(ii) the identified hazard had not been reasonably controlled.

(Of interest, (ii) of the OH&S definition requires a party to essentially report (and admit to) having broken the law – i.e. failing to have reasonably controlled a hazard, contrary to s. 9 of the Occupational Health and Safety Code).

After providing the above definition for a PSI, OH&S then provides a clickable link to report a PSI online. Following the link takes you to a questionnaire that is designed to see “if you need to report”. However, the questionnaire doesn’t actually take the definition into account, and simply asks if the person suffered an “injury”. If you answer “yes” to that question and are the employer at a work site in Alberta, you’re advised that “Based on your answers, a PSI is required”. In other words, despite the way OH&S itself has chosen to define a PSI, if you follow the online reporting system you’ll find yourself reporting all injuries to OH&S and not just the serious “near misses” that are specified in the legislation (i.e. the ones with the "potential of causing serious injury").

Why does it matter, and what's wrong with "erring on the side of caution" and reporting everything?

First, it’s important to note that materials published by OH&S (including those on its website) are neither law, nor legally binding. They are created by and reflect how OH&S views and interprets the legislation, at the time of publication. Others, including the courts (who will ultimately have the final and only say that matters), may view things quite differently.

Second, and just as (if not more) importantly, when you contact OH&S to report any type of incident, it kick-starts a process that will inevitably result in not only an investigation and/or visit from OH&S officers, but the creation of an internal record at Alberta OH&S that may be used to justify administrative penalties and/or stop work orders in the future (more on that in an upcoming post!).

The “as soon as possible” requirement does not apply to the reporting of “near misses”. What that means, is that you've got a window of opportunity to take control of and fully assess the situation, to ensure that you're not giving OH&S more than they're entitled to

Give us a call at 1-844-464-7911. We'll help you determine whether OH&S actually needs to be notified, and if appropriate, establish legal privilege - two things that you'll thank us for later!

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