The road to safety regulation

If an accountant is asked to tamper with a company’s finances, they can refuse. If a social worker is asked to hide evidence of abuse, they can point to their professional duty to report. If an architect is asked to sign off on a blueprint that they just don’t think is quite right, they can walk away. 

But if a safety professional were put in a less than desirable situation, what recourse do they have? Regulating the profession would allow safety professionals to fall back on their legally binding professional code of conduct, similar to the aforementioned professions, teachers, lawyers, engineers and many others. 

“It’s going to give practitioners a consistent approach and also a reference point,” says Peter Sturm, principal of Sturm Consulting in Toronto and occupational health and safety instructor at the University of Toronto’s School of Continuing Studies. “If you’re an engineer or a nurse, you can say, ‘Well my profession requires me to do ABC not XYZ.’ It gives the messaging back to whoever you’re working for that you have a certain standard to adhere to.”

Having this backing is just one benefit of becoming a regulated profession, something various industry groups are working towards across the country. Being a regulated profession (also referred to as self-regulation) means that an occupational group enters into an agreement with the government to formally regulate the activities of its members. A statute is entrenched into law, which outlines various requirements for the profession. Given the nature of the jurisdictional model in Canada, the regulation of a profession takes place separately for each of the 14 jurisdictions — it cannot be done nationally.

According to a survey of 409 Canadian Occupational Safety readers conducted in December, 43 per cent said the profession is absolutely ready for regulation, while 33 per cent agreed it should be regulated, but expressed having some questions or concerns. Eight per cent said the safety profession is not quite yet ready for regulation, while another 8 per cent said the profession should not be regulated. The final 8 per cent were neutral. 

Becoming a regulated profession must be guided by the public interest.

“You’ve got a set of standards — there’s a bar that everybody had to meet — so (the public has) confidence in that anybody who carries a particular professional title has demonstrated the knowledge and competencies required to provide a certain defined, minimal level of safe, quality, ethical service,” says Kevin Taylor, chair of the Ottawa-based Canadian Network of Agencies for Regulation.

When the application is made to the government for becoming a regulated profession, it is going to first and foremost look at if doing so is in the public interest. While you might get there in a roundabout way, the work that safety professionals do certainly protects the public, says Kevin Dawson, Halifax-based chair of the Board of Canadian Registered Safety Professionals (BCRSP).

“They tend to deal with the public indirectly in a sense that they are usually working for or consulted by employers and employers are doing that because they have a legislative obligation to protect their workers, or by definition, the public,” he says. “Obviously there’s a vested interest to make sure the person who is giving you that advice has a certain level of competency and skills.”

The Alberta Society of Health and Safety Professionals (ASHSP) was established in November 2017 with the goal of regulating the profession in Alberta. According to the society, public interest includes: worker health and safety; future workers’ health and safety; workers’ families and loved ones who are also impacted by workplace injuries and illnesses; the societal costs of workplace injuries and illnesses (such as health care, insurance, etc.); and the economic costs of workplace injuries and illnesses. 

Nearly two-thirds (65 per cent) of the respondents to the COS survey agreed that regulating the safety profession would be in the best interest of the public. However, convincing the government of this fact may not be as easy as it seems. 

“There’s a vetting process and generally there is some criteria that has to be met and then the government decides if it is in the public interest,” says Taylor. “And part of making that pitch is making a convincing argument that there is a need for it — that public safety will be enhanced and the public interest will be served by having that profession regulated.”

Recently, paramedics in Ontario made the case for self-regulation, but the government did not grant it, explaining “the application did not meet our primary criterion threshold for risk of harm and because self-regulation of paramedics is not in the public interest.” It went on to say that the existing mechanisms were adequate for public protection. 

Becoming a regulated profession would provide title protection for safety professionals. This means that only registered members in good standing would be able to use certain professional titles that the regulatory body deems to be protected. For example, Safety and Health Professional or Industrial Hygienist could be protected titles.  

“Under the current state, really anybody can call themselves a health and safety professional,” says Mike Fedun, president of the ASHSP and an OHS advisor to the Alberta government’s wildfire management branch. “People can claim to have a designation that they don’t, people can make up a designation, people can say, ‘I am a health and safety professional’ even though they have no formal training, not a lot of experience.”

The ASHSP is currently in the process of determining what titles would be protected when they apply for self-regulation, which could include something like Alberta Health and Safety Professional.

Unauthorized use of the titles would have legal consequences under the professional regulation, such as fines or jail time.

“In those cases where a person will not cease using that protected title, then we can go to the courts and get an injunction. The registrar will deal with the court system because there is a statute — it’s a title protected under law,” says Fedun. 

It’s important to note that there are two ways to go about regulation. The first is full licensure, like doctors and lawyers, where an individual cannot practise without receiving a specific license. What safety professionals would most likely achieve is similar to accountants: Only Chartered Professional Accountants are subject to the requirements laid out in the statue and it does not interfere with the right of any individual who is not a member of the regulatory body to practise as an accountant. Many professions are self-regulated in this manner. 

Regulation also provides scope of practice protection, meaning only registered members in good standing are able to perform certain types of work as outlined in legislation. 

For the safety profession, the regulatory body in each province would be responsible for determining what that scope of practice entails. The ASHSP is currently coming up with a list, but it will likely protect occupational exposure and chemical exposure work for occupational hygienist and high-risk work, such as confined space entry, hot work and working at heights, for health and safety professionals. 

Ultimately, protecting both title and scope of practice will help protect the public from incompetent, incapable and unethical safety professionals — a current problem within the profession, according to 69 per cent of COS survey respondents. 

“This is something that we see often in the health and safety profession,” says Fedun. “I can go out there and I can see people providing health and safety advice, people building health and safety programs, people providing on-site advice and also strategic advice that don’t necessarily have the education and the background. And right now, unfortunately, there’s nothing that can be done.”

A key element in becoming regulated is to establish a consensus on the competency, educational and experiential requirements required to join the regulatory body.

In terms of competency, the International Network of Safety and Health Practitioner Organisations (INSHPO) released a document a few years ago that provides clarity on the role of the safety professional. The Global Capability Framework for Occupational Health and Safety Professionals is the result of three years of consultations across 11 countries — including Canada — with occupational health and safety professionals, OHS educators and certifying bodies. 

In 2017, the Singapore Accord was signed, which signalled a commitment from organizations around the globe to adopt the framework. 

To test the competency of individuals, many professional regulators require prospective members to pass an entrance exam. This helps ensure all members have the same minimum level of competency and acts as a gatekeeper to keep out unqualified individuals. For example, engineers are required to complete the National Professional Practice Exam and achieve a score of at least 65 per cent. 

In order for the safety profession to be regulated, it needs to have clear educational prerequisites to obtaining professional member status. These requirements are determined by the regulatory body.

Oftentimes, the regulator will require  post-secondary education be completed at an accredited institution. These institutions have been vetted to ensure their program matches the requirements of the regulated profession. 

“It’s developing a process whereby the various colleges have standardization and a certain accepted level for what people need to know if they go to college and do a two-year diploma in occupational health and safety. What does that mean? What are the competency outcomes? What’s the knowledge transfer you require?” says Dawson. 

But don’t worry if you’re a seasoned health and safety professional who went to school many moons ago. There is usually a phase-in period and there may be a special process to demonstrate equivalency or customized upgrading programs.

The BCRSP has been working with OHS educational institutions for the last several years on accreditation, and it hosts a national education symposium that brings together OHS educators. At the next symposium in May, the BCRSP is aiming to present a proposed framework for accreditation, Dawson says.

Professions also must have an experiential requirement for their members. Prospective members may be required to complete a mentorship, sponsorship or apprenticeship activity. Some professions simply require experience within the particular profession. For example, Management Consultants are required to have 600 hours of consulting experience within the past 24 months as well as five years of experience.

With professional regulation comes increased public scrutiny. Members must conduct themselves in a manner that is becoming to the profession. 

The COS survey revealed 55 per cent of respondents have no problem with this increased scrutiny, while 20 per cent feel pretty good about it, but are a bit nervous. 

Many professions have a general statement in their statute around a good character requirement. Professionals in good standing should actually welcome this because it helps prevent individuals from tarnishing and dragging down the profession, says Taylor.

“Weeding out the bad seeds, that’s kind of part of it.”

If a member of the public has an issue with a member of a profession, there must be a process in place for them to lodge a complaint. This complaint will be reviewed and investigated by the regulatory body and any malicious or vexatious complaints will be dismissed. A legitimate complaint will be cross checked with the profession’s code of ethics and standards of practice, and an alternative dispute outcome may be pursued, such as issuing a caution or requiring some remediation. The case may move onwards to a disciplinary process, which could result in the revocation of professional membership. 

For professions, disciplinary information needs to be available to the public. 

“The only way that the public is going to have confidence that the regulatory body is doing what it’s supposed to do is if someone has fallen below the standard that the disciplinary proceedings can be seen by the public,” says Taylor. “Otherwise it’s kind of closed door, secret society stuff.”

Safety professionals may not be able to share information as openly as they are accustomed to upon regulation. 

“As a member of CSSE (Canadian Society of Safety Engineering) and a CRSP, I can send out a message to 5,000 people to say, ‘This is the problem I have,’ and I guarantee you within five minutes you’re going to have a response,” Sturm says. “When you get to (regulation), once you start to give opinions, is it a professional opinion or you’re just giving information? I think there will have to be some clarity on that… because it could become a liability issue.”

On the flip side, a professional’s work is not questioned when provided. The advice they give and the tasks they complete are assumed to be of a high quality due to the requirements of the profession.

There is also a certain status that comes with being a regulated profession, and it may translate into better job prospects and higher salaries, says Taylor.

“Standards, quality, continual quality improvement and upward mobility and growth of a profession is good for the public and good the profession,” he says.

CONCERNS
A current lack of uniformity is one reason why Paul Carolan, a health and safety professional in Nunavut, doesn’t think the industry is ready for regulation quite yet. Such inconsistency is seen in the nearly 30 health and safety-related designations and the 14 jurisdictions doing things differently when it comes to OHS legislation. 

“Despite what might be said, it’s a difficult challenge behind the scenes. I don’t think people are being truly honest within government because the appetite isn’t there. That’s a significant problem,” he said, speaking at the CSSE’s professional development conference in 2017 in Halifax.

In the spirit of uniformity, BCRSP would like to see the regulation of the profession unfold with individual regulatory colleges in each jurisdiction, but with an overarching national framework. One option on the table is for the BCRSP to set up legal entities in each province, says Dawson. 

“Even though there might be provincial regularly bodies or colleges and they would have specific requirements to a particular province, unique to that province, in a general sense, the overall regulatory regime would be common across Canada,” he says. 

The BCRSP regulatory bodies would protect both the CRSP and the new Canadian Registered Safety Technician (CRST) titles as well as other titles affecting health and safety generalists, hygienists and ergonomists.

“A lot of thought needs to go into envisioning a national framework that is inclusive of other professions and practitioners within occupational safety and health,” Dawson says.

However, Carolan is advocating for the CSA to develop a National Standard for OHS Professionals. He noted governments prefer the “consensus model” of the CSA because not only does it work with industry representatives (which could include the BCRSP and CSSE) but it’s also open to the public.

“The CSA is accredited, its focus is worker safety when it comes to OHS, it’s balanced,” he said at the conference.

Another concern is inter-provincial mobility. Nearly one-half (48 per cent) of the respondents to the COS survey are in a role that requires them to work in more than one province or territory. 

“If they are doing work across the country, will the regulated profession prohibit them from practice? Or my company has multiple locations across the country, will that have an impact? We work in Alberta and the Maritimes, now I’m regulated in Alberta, what’s the impact going to be for me? These are the issues that need to be addressed,” says Sturm.

Dawson says it’s likely an individual would have to pass a province-specific competency test to work in another province. 

“Everybody realizes you have to have certain rules around fall protection, but Alberta might want to do it this way and B.C. wants to do it another way,” he says. “Every province has its own little set of rules.”

There is some concern around the costs of becoming self-regulated, too. Once the ASHSP becomes a regulatory college, Fedun expects the membership fees will be in the range of $350 to $450. For context, the current annual fee for CSSE membership is $205. But in many instances, the employer will pay for the fee. One of the requirements for a regulatory college is that it needs to be funded solely by membership dues — the regulator is not allowed to take money from external sources. The regulatory body needs to charge enough to be in good financial health and this is something the government looks at when an application for self-regulation is made. 

“You need a strong contingency fund… because the last thing anybody wants, the government included, is to have a self-regulating organization go bankrupt because they don’t have enough money to weather unforeseen circumstances, such as court costs, regulatory costs, maintaining technology and all that stuff,” says Fedun. 

Lastly, not everyone is keen on life-long learning — a key component often found in self-regulation. Regulatory bodies frequently have standards for continuing education so that members can stay abreast of all the new developments in the field.

“There are some people out there in all professions that believe that just their experience is all  they need to be considered a professional,” says Sturm. “‘I have been doing it for 30 years.’ Okay, so when’s the last time you took a course? ‘Well, 1989.’ Would I go to a doctor that the last time he or she learned anything about open heart surgery was 1989?”

WHY NOW?
The time has come for the safety profession to be regulated because it has evolved tremendously over the years, says Dawson. Not all that long ago, safety was shopped around within an organization, or the individual who sustained a workplace injury became the safety person. Now, specialized training is required in order to be a safety professional due to advanced management systems, auditing protocols and keeping up with changes in legislation. 

“Canadian workplaces are not the same as they were 40 years ago,” he says.

Canada is falling behind some other countries that have regulated the profession. In Singapore, Workplace Safety and Health Officers are regulated. In Europe, Health and Safety Officers are regulated in Austria, Czech Republic, Hungary, Netherlands, Poland, Portugal and Slovakia.

Fifty-eight per cent of respondents to the COS survey said regulation would be good for the profession long-term, while 21 per cent said it probably would be. Twelve per cent did not feel it would be good for the profession, while another 10 per cent were unsure.  

In October, the BCRSP met with the Ontario government and members of the opposition to explain the importance of regulating the safety profession. It is holding similar meetings in Alberta and British Columbia. Dawson says so far, it has not received any negative feedback from the government per se, but it is a process that takes time.

“It’s more a question of convincing individuals why is now the time to start looking at this. What would it entail? What would the impact be on various stakeholder groups?” he says. “There’s support there… but there’s a learning curve as well.”

The ASHSP is working hard to develop all the requirements to apply for regulation. Fedun says the group is aiming to apply in the fall, but its goal is to have 1,500 members before it does so. At press time, the society was sitting at 163 members. After application, it can take another one to three years for the government to make a decision. 

Sturm hopes that regulating the safety profession will help it gain interest among young people. Safety is a great profession, but many individuals fall into it as a second career and a lot of young people are not even aware of it as an option.

“I’m hoping that it will evolve so that one day a five-year-old or a 10-year-old will say, ‘I want to be a safety professional when I grow up,’” he says. “That’s what I see (regulation) doing for the profession: Taking it to a level that it becomes relevant, it becomes understood and the next generations consider that as a calling and a career.”  

This article originally appeared in the February/March 2019 issue of COS.

SELF-REGULATION MYTHS DEBUNKED

MYTH:
The national health and safety organizations already regulate the profession, so a provincial body is not needed.

TRUTH:
The national organizations govern their members, but they don’t regulate them. This governance is voluntary, where regulation is backed by law. Additionally, professional regulation cannot be done by a national body. 

MYTH:
Regulation is being sought solely to benefit one safety designation and exclude another.

TRUTH:

Associations are seeking to establish professional regulation for all those who are practising in the field of health and safety (including professionals, practitioners, hygienists and auditors) in all the sub-disciplines of the profession.

MYTH:

Businesses and government will be against this.

TRUTH:
So far, there has been no resistance by government, employers or employer associations. The prevailing feeling is one of, “It’s about time.”

MYTH:
If professional regulation is to occur, then all jurisdictions must go through the process at the same time.

TRUTH:
There is no requirement for all jurisdictions to seek professional regulation at the same time. Each province has the autonomy to decide if and when they are ready for regulation and how it should proceed.

MYTH:
Health and safety practitioners do not cause the injuries/losses, so they don’t need to be regulated. 

TRUTH:
Health and safety practitioners provide advice and guidance that companies rely on. Uninformed, incorrect or negligent advice jeopardizes lives. Regulation will ensure a health and safety professional is competent, capable, educated, experienced and ethical.

MYTH:
This is just another “cash grab” from yet another safety organization.

TRUTH:
The Alberta Society of Health and Safety Professionals (ASHSP) is a non-profit organization with all operating costs fully funded by membership dues. It is 100 per cent managed and operated by volunteers. 

Myths and truths provided by Alberta Society of Health and Safety Professionals (ASHSP)