Canadian Occupational Safety

19 2019 APRIL/MAY to correct unsafe conditions — they know problems will be fixed. However, Smith cautions against regarding sensors as a silver bullet and thinking that putting a sensor on a worker will keep them safe. Relying too much on this technology may create complacency about the need for proper training. For example, a manager may put sensors on PPE to reduce injuries caused by improper lifting. But now the workers may rely on the sensors to tell them if they are lifting improperly. "For a worker doing some lifts during the day, rather than trying to determine through sensors exactly whether a lift is a good lift or a bad one, our approach is to make them aware that they are lifting a lot and train them to do it the proper way, as opposed to relying on these sensors to say, 'Hey you're doing it wrong,'" Smith says. "Moreover, if I am lifting improperly, and for some reason the sensor isn't working or isn't in the right place or something else is wrong, I think I'm doing every- thing fine but I'm not." BEHAVIOURAL DATA While wearable technology is probably used most commonly as a means of intervention to prevent injuries, it is also being used to produce behav- ioural models built on the data collected from the dozens of safety-related decisions workers make every day. The behavioural approach is based on the notion that knowing what to do, and even being aware of imminent risk, does not necessarily determine behaviour. Instead, our actions are often irrational; many psychological, social and emotional factors affect decision-making. Using the data collected from various sources, including wearable sensors, behavioural analysis seeks to reduce incidents by measuring an individ- ual worker's risk tolerance level. Safety managers will then understand the worker better and will focus on making the person aware of dangers. They will, for example, be able to send safety reminders to a high risk tolerance worker on the specific risks of a dangerous zone just before the person enters that area. Jennifer Weeks, associate at BEworks, a Toronto- based management consulting firm, says behavioural data collected from sensors play a key role in allow- ing safety managers to encourage safe behaviours. It all has to do with providing positive reinforcement. "The only time workers get any reinforcement of their behaviour is when something bad hap- pens, when they get hurt, for example, because they weren't wearing their safety gloves. But they get no positive reinforcement for putting on those same gloves every day for years," she says, adding random, or intermittent, reinforcement is more effective than rewarding every act of good behaviour. "The opportunity we see with wearables is that if you're connected to every worker all the time through these wearable Internet-of-Things devices, then you can reinforce their good behaviour on an optimal schedule, such as an intermittent reinforcement schedule. And wearables make it possible to auto- mate this delivery of reinforcement," Weeks says. If each worker is wearing the personal mobile device and the PPE is equipped with IoT sensors, safety managers can monitor every time they put on their safety gloves and randomly reward them. So once every four or five times they put on their gloves, they hear a buzz on their device and it says, congratulations, you just received 10 points for put- ting on your gloves. "If this happens in a random, unpredictable way, it gets people more excited about putting on their gloves," Weeks says. Another major use of sensors is to monitor — and predict — worker fatigue, according to the ASSP Foundation study. Over three-hour increments, the workers who participated in the study wore wrist, hip and ankle sensors while completing common manufacturing tasks. Researchers found that body movement patterns, including walking, change with fatigue. These changes in movement indicate developing fatigue and the need for action, such as scheduled breaks, posture adjustments or vitamin supplements, to relieve the physical fatigue. The main application of fatigue monitoring is in manufacturing and industries that employ drivers. An Australian company, Smart Cap, uses a wearable band to prevent the micro-sleeps — short episodes of sleep or drowsiness that last anywhere from a fraction of a second up to 30 seconds — that cause accidents. The band can be attached to the inside of a driver's cap, hard hat or other headwear or be worn on its own. The band uses EEG (electroencephalography), the brainwave technology used in sleep studies, to determine the driver's alertness. If the EEG read- ing indicates a driver is close to falling asleep, the system sends an alert to the person. Sensor data can be collected to produce reports and profiles that will help the driver understand the times of day when their risk is greatest. The technology was first tested in surface mining operations to monitor operators of haul trucks, excavators, dozers, graders and water trucks. In addition to monitoring fatigue levels, sensor technology is also used to improve driver safety by tracking driving habits, such as speeding and taking corners, that can affect safety. Designed to prevent improper lifting, New York City-based Kinetic's wearable device uses sensors and biomechanical analysis to determine whether workers are moving with correct posture. If the device, Reflex, detects excessive bending, twisting or reaching, it vibrates to warn the worker to change his or her stance or get help if the item being lifted is too heavy. Chicago-based Occly has introduced wear- able body cameras that are equipped with a personal alarm, cloud storage, a smart- phone app and live video streaming. Alarms are delivered to Occly's 24-hour emergency monitoring service or to the client's office. The system is designed to be used in a range of industries, including construction, utili- ties, education, delivery and retail. WORKER PRIVACY Managers' ability to use wearable technol- ogy to track workers' activities and location throughout the day gives rise to a concern about worker privacy. The ASSP survey showed privacy was the single greatest concern for the use of wearables at work. As one respondent commented, "I would not want employees to feel their jobs are threatened by not moving correctly or fast enough." For Weeks, the issue raises two questions. First, is the worker bothered by the invasion of privacy? Her own research into the psychology behind privacy disclosure, which examined consumers' attitudes to Google and wearables like Fit Bit, produced a surprising conclusion. "Even people who report being very skep- tical and resistant to revealing personal information will reveal it if there's added con- venience. They may say it bothers them, but it doesn't actually affect their behaviour, so there's a limit to how much it actually bothers them. They care more about the benefits of using (Google or Amazon) than they do about the loss of privacy." This research seems to indicate that if workers believe the advantages of wearing sensors — for example, the ability to communicate, the element of fun or competition, ease of use — outweigh whatever reservations they may have about privacy, they would not be unduly bothered by the wear- able technology. The second question Weeks has is whether or not there is a fundamental ethical problem with collect- ing and using this worker data — and the answer may be yes, she says. The rightness depends on how the data is being used. If it is being used to predict risk and make the workers safer, then it's unlikely anyone would think the use is unethical. The prob- lem arises when the data is being used for a purpose that workers have not approved. "If the data is sold to advertisers or big-data farm- ing companies, that's where we start to get into a grey area. But as long as we're using it to predict safety and identify sites that may need attention, like extra training, then I think that would be fine with the workers. It's fine in my book," Weeks says. With all these options for connected systems, it is important not to overdo it and always keep in mind the problem that needs to be solved, Smith says. There is a lot of wearable technology available, but it may not make sense from a cost-benefit perspective. "You can put technology in that will tell you if a pair of safety glasses is sitting on a worker's nose properly, but it increases the cost substantially. You can sensor everything and accept the cost associ- ated with it," he says. "Or you can take a different approach and try to make workers aware and try to create an environment where if someone doesn't have the required PPE on, someone else feels free to say, 'Put your glasses on.'" COS Linda Johnson is a Toronto-based freelance journalist who has been writing for COS for eight years PM40065782 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com September 14, 2016 Wrongful dismissal damages — Bonus entitlement BY RONALD MINKEN FOR some workers, a bonus makes up a signifi cant portion of their remuneration. For others, a bonus is something that may or may not be provided by their employee at specifi c times of the year — such as Christ- mas, for example. Often, an employee who is dismissed without cause will ask whether her entitle- ment to wrongful dismissal damages will in- clude a component for lost bonuses. Compensation for wrongful dismissal can include an amount for a bonus which the employee would have been entitled to re- ceive during the notice period. In the absence of an employment agree- ment specifying to the contrary, the question is whether the bonus has become an essen- tial component of the employee's remunera- tion or whether it is essentially a gift — to be delivered at the employer's sole discretion. A recent decision of the Ontario Court of Appeal, Paquette v. TeraGo Networks Inc., dealt with this issue. When Trevor Paquette was fi red by Tera- Go Networks, the dismissed employee and his former employer could not agree on a severance package. Paquette brought a sum- mary judgment motion to determine the pe- riod of reasonable notice and damages. e motions judge awarded notice at 17 months and based damages on salary and benefi ts that Paquette would have earned during the 17-month notice period. e motions judge did not award damages for bonuses, because the employer's bonus plan required an em- ployee to be "actively employed" at the time the bonus was paid. Paquette appealed that decision on the issue of whether the motion's judge made a mistake in not including compensation for lost bonuses. e Ontario Court of Appeal allowed the appeal. e motion judge erred in focusing on the Nurse fi red for forcing care on resisting care home resident Intentions were good but nurse made a mistake forcing protesting resident to have a shower, resulting in injuries to resident BY JEFFREY R. SMITH AN ARBITRATOR has upheld the dismissal of a registered practical nurse at an Ontario long- term care home after a resident suff ered injuries after resisting care and the nurse failed to fi le an incident report. Chester Posada was a regular part-time reg- istered practical nurse (RPN) at Bendale Acres, a long-term care home operated by the City of Toronto. He was hired in September 2008 and worked in the behavioural response unit, a locked area housing cognitively impaired residents who could act out. On Aug. 20, 2014, Posada was working in the unit with three other staff members. One of the patients, an 86-year-old man referred to as TS, suff ered from dementia and several other affl ic- tions that required him to be on blood thinners. e blood thinners increased TS' susceptibility Intoxicated, dishonest -- and reinstated with full pay pg.3 Employe ignored sunset clause in collective agreement CREDIT: LIGHTHUNTER/SHUTTERSTOCK Getting ready or legalized marijuana pg. 4 Employers will have to treat employee use somewhat differently -- but still as an intoxicating substance ASK AN EXPERT pg. 2 Employee harassment outside work ACTIVE on page 7 » EMPLOYER on page 6 » with Stuart Rudner Canadian Employment Law Today is an indispensable tool in keeping managers, business owners, trade unions, HR professionals and law firms up-to-date on the latest developments in employment law. COMPLY WITH THE LATEST EMPLOYMENT LEGISLATION To order your subscription call 1.800.387.5164 | 416.609.3800 www.employmentlawtoday.com/subscribe Subscribe today for only $299 Order No. 20612-19

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