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- What is meant by due diligence?
- Why does due diligence have special significance?
- How does an employer establish a due diligence program?
- What are areas to consider when reviewing due diligence?
- What is an example of a due diligence checklist?
What is meant by due diligence?
Due diligence is the level of judgement, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances.
Applied to occupational health and safety, due diligence means that employers shall take all reasonable precautions, under the particular circumstances, to prevent injuries or accidents in the workplace. This duty also applies to situations that are not addressed elsewhere in the occupational health and safety legislation.
To exercise due diligence, an employer must implement a plan to identify possible workplace hazards and carry out the appropriate corrective action to prevent accidents or injuries arising from these hazards.
Why does due diligence have special significance?
"Due diligence" is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.
How does an employer establish a due diligence program?
The conditions for establishing due diligence include several criteria:
- The employer must have in place written OH&S policies, practices, and procedures. These policies, etc. would demonstrate and document that the employer carried out workplace safety audits, identified hazardous practices and hazardous conditions and made necessary changes to correct these conditions, and provided employees with information to enable them to work safely.
- The employer must provide the appropriate training and education to the employees so that they understand and carry out their work according to the established polices, practices, and procedures.
- The employer must train the supervisors to ensure they are competent persons, as defined in legislation.
- The employer must monitor the workplace and ensure that employees are following the policies, practices and procedures. Written documentation of progressive disciplining for breaches of safety rules is considered due diligence.
- There are obviously many requirements for the employer but workers also have responsibilities. They have a duty to take reasonable care to ensure the safety of themselves and their coworkers - this includes following safe work practices and complying with regulations.
- The employer should have an accident investigation and reporting system in place. Employees should be encouraged to report "near misses" and these should be investigated also. Incorporating information from these investigations into revised, improved policies, practices and procedures will also establish the employer is practicing due diligence.
- The employer should document, in writing, all of the above steps: this will give the employer a history of how the company's occupational health and safety program has progressed over time. Second, it will provide up-to-date documentation that can be used as a defense to charges in case an accident occurs despite an employer's due diligence efforts.
All of the elements of a "due diligence program" must be in effect before any accident or injury occurs. If employers have questions about due diligence, they should seek legal advice for their jurisdiction to ensure that all appropriate due diligence requirements are in place.
Due diligence is demonstrated by your actions before an event occurs, not after.
More information on how to establish these programs is available through OSH Answers, including:
- Establishing an OSH Program
- Emergency Planning
- Hazard Control
- Guide to Writing an OHS Policy Statement
- Inspection Checklists
- Job Hazard Analysis
What are areas to consider when reviewing due diligence?
When reviewing your due diligence program, it may help to ask yourself the following questions:
- Can a reasonable person predict or foresee something going wrong?
- Is there an opportunity to prevent the injury or incident?
- Who is the responsible for preventing the accident or incident?
What is an example of a due diligence checklist?
| Yes | No | |
|---|---|---|
| Do you know and understand your safety and health responsibilities? | ||
| Do you have definite procedures in place to identify and control hazards? | ||
| Have you integrated safety into all aspects of your work? | ||
| Do you set objectives for safety and health just as you do for quality, production, and sales? | ||
| Have you committed appropriate resources to safety and health? | ||
| Have you explained safety and health responsibilities to all employees and made sure that they understand it? | ||
| Have employees been trained to work safely and use proper protective equipment? | ||
| Is there a hazard reporting procedure in place that encourages employees to report all unsafe conditions and unsafe practices to their supervisors? | ||
| Are managers, supervisors, and workers held accountable for safety and health just as they are held accountable for quality? | ||
| Is safety a factor when acquiring new equipment or changing a process? | ||
| Do you keep records of your program activities and improvements? | ||
| Do you keep records of the training each employee has received? | ||
| Do your records show that you take disciplinary action when an employee violates safety procedures? | ||
| Do you review your OSH program at least once a year and make improvements as needed? |
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Document last updated on January 15, 2008
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