Everyone wants to avoid accidents in the workplace. Employers and employees of farming operations are no exception. However, farm workplaces present a variety of hazards and injuries to workers do occur. This is particularly so as the operation grows, and often less experienced or knowledgeable workers are hired.
An accident causing harm to one employee can not only be tragic, but can place large amounts of stress on the operation’s financial stability. Accidents causing harm to multiple employees, whether at the same time or within relatively short periods of time, could result in the business failing entirely, which of course affects everyone involved at every level.
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It is therefore important for both employers and employees to know the laws applicable to safety and accidents in the workplace. In addition, employers and employees should be aware of the laws in their respective jurisdictions relating to the liability of farm employers for injuries to their workers and the compensation available to those workers.
For instance, all farming operations that employ workers in Manitoba and Saskatchewan should be aware of applicable “safety and health” legislation (Alberta exempts farming and ranching operations from their safety and health legislation). Generally speaking, such legislation requires farm employers to ensure farm workers’ safety and health are of paramount importance.
Whether it involves operating machinery, handling bales of hay or hazardous chemicals, or assigning younger or inexperienced workers to a particular task, the legislation generally requires that the workplace environment be as safe as reasonably possible, and that training and supervision are provided where necessary.
In the event of an accident, monetary fines (and even imprisonment in exceptional cases) may result if an investigation by safety and health officers indicates dangerous work conditions which are preventable, or failures to abide by requirements under the legislation.
Aside from potential penalties under workplace safety and health legislation, farm employers should also be aware of their liability to farm workers who are injured in the workplace. In Manitoba, the legal consequences arising from an injury sustained by a farm worker in the course of his or her duties have changed dramatically since January 1, 2009, when Manitoba’s legislature decided to bring farm workers within the compensation scheme set out under part one of The Workers Compensation Act.
Prior to that time, Manitoba farmers were subject to lawsuits for work-related injuries and illnesses sustained by farm workers. In contrast, Saskatchewan’s Workers Compensation Act still excludes farm employees, but nonetheless allows farming operations to opt in for coverage of their employees, while Alberta’s Workers Compensation Act, as with its Safety and Health legislation, specifically exempts typical farm operations and employees.
The inclusion of farm workers within workers’ compensation legislation means that farm employers are immune from civil lawsuits from farm workers in connection with work-related injuries. On the other side of the equation, farm workers are then entitled to compensation for their work-related injuries regardless of whether they can establish legal fault for their injuries against another party.
It’s also important to be aware of any exceptions that might apply. In Manitoba for instance, farmers themselves (meaning the owners and/or operators of a farming operation), along with their family members, remain exempt from the mandatory compensation scheme under The Workers Compensation Act. The intention of the Manitoba legislature in making the January 1, 2009 changes was essentially to make Workers Compensation Board ( “WCB”) coverage mandatory for “arm’s-length” farm employees, without impacting smaller family-run farming operations. It should be noted that the definition of “family member of a farmer” found under the Excluded Industries, Employers and Workers Regulation, is quite broad. Aside from immediate family members in the traditional sense, “family member of a farmer” is also defined to include “any other person whom the farmer considers to be like a close relative, whether or not they are related by blood, adoption, marriage or common-law relationship.”
Given the scope of the definition, a farmer who occasionally employs close friends or acquaintances to assist in farming operations may not be found to require WCB coverage in respect of those workers. However, unless a farmer is comfortable they can easily establish that all persons working at a farm are so close to the farmer as to be considered “family,” Manitoba farmers are best advised to register with the WCB for coverage in respect to their farm workers. They might also want to consider whether to choose the optional coverage for “family” workers.
Regardless of the jurisdiction, if excluded from workers’ compensation coverage for any reason, then the business will remain subject to civil lawsuits from workers who are injured in the course of working on their farm.
Farmers may seek protection against these types of claims through separate coverage for legal liability which may be included as part of a farm insurance policy. Farmers may wish to consult with their legal counsel and/or their insurance agent or broker to see whether the right liability coverage is first of all necessary, and if so, whether liability coverage is in place or available.
Ross McFadyen is a partner practising in civil litigation with a focus on cases involving insurance. Rob Olson is an associate practising labour and employment law. Both lawyers are with Thompson Dorfman Sweatman LLP in Winnipeg, and are members of the TDS Agri-Business Group.
