Chapter 8 (OHSA) - Tagged

Chapter 8: Occupational Health and Safety Act

Introduction

Workplace health and safety must be prioritized by employers due to the significant costs associated with workplace injuries.

• Types of Costs:

• Human suffering caused by workplace accidents.

• Workplace safety and insurance claims can lead to increased costs.

• Employers may face hefty penalties for failing to adhere to statutory safety standards, with fines reaching up to $2 million and potential imprisonment.

• Example: A company in Brantford that ignored an order from the Ministry of Labour (MOL) to cease using a particular piece of equipment, until safety guards were fitted, faced a $50,000 fine despite no actual injuries occurring.

• Such fines have become common even when no accidents or injuries have manifested.

Relevant Legal Framework

Two key statutes govern occupational health and safety in Ontario:

1. Occupational Health and Safety Act (OHSA):

   • Promotes a safe and healthy workplace to prevent work-related injuries and diseases.

2. Workplace Safety and Insurance Act (WSIA):

   • Focuses on safety as well but also addresses compensation and reintegration of workers who are injured or fall ill due to their work.

The Internal Responsibility System

1. The internal responsibility system enforced by Ontario’s health and safety legislation is built on joint responsibility.

2. Emphasizes participation by all stakeholders in ensuring workplace health and safety.

3. Joint Health and Safety Committees (JHSCs) are crucial for monitoring and promoting workplace safety.

4. A JHSC must be established in workplaces with 20 or more regular workers, which includes independent contractors.

5. For smaller workplaces (6-19 regular workers), a health and safety representative assumes JHSC power.

Structure of JHSC

1. JHSC composition varies by workplace size:

   • Workplaces with 20-49 workers need at least 2 members.

   • Workplaces with 50+ workers require at least 4 members.

2. Worker representation must constitute at least half of the JHSC members, chosen by the workers themselves.

3. A JHSC is co-chaired by one worker representative and one management representative.

4. There's no cap on the number of JHSC members as long as they adequately represent all departments.

5. The JHSC’s names and work locations must be visibly posted in the workplace.

6. JHSC meetings are mandatory at least quarterly.

Compensation for JHSC Members

1. Employers must compensate JHSC members for their time during committee duties:

   • At least one hour of preparation pay for each meeting.

   • Pay for time spent in meetings and on necessary activities like workplace inspections.

2. JHSC must maintain minutes of meetings to be made available for MOL inspectors upon request.

3. At least two certified JHSC members (one from management and one from workers) must undergo special training in health and safety.

Main Functions of JHSC

1. Identify and Inspect:

   • Recognize potentially hazardous conditions in the workplace.

   • Conduct at least monthly inspections, ideally by certified members.

2. Information Gathering:

   • Acquire information about workplace hazards from employers.

3. Recommendations:

   • Submit written suggestions to improve workplace safety, with employers mandated to provide responses within 21 days.

4. Investigations:

   • Conduct inquiries when workers refuse unsafe work or when serious injuries occur.

5. Collaboration with WSIB:

   • Obtain data on worker compensation claims.

6. Training Programs:

   • Participate in developing, executing, and assessing training regarding hazardous materials.

7. Workplace Harassment Programs:

   • Assist in creating policies for workplace harassment.

Coverage under Ontario’s OHSA

1. Broad Coverage:

   • The OHSA applies to nearly all workers and workplaces within Ontario, defined broadly to cover a diverse range of employment forms.

2. Categories of Workers Covered:

   • Paid workers, including independent contractors and temporary employees.

   • Unpaid workers, such as students in approved work experience and educational programs.

3. Workplace Definition:

   • The term "workplace" encompasses a wide variety of settings, including mobile workplaces like vehicles.

4. Federal Exemptions:

   • Workplaces under federal jurisdiction (like airports) are not governed by the OHSA but by the Canada Labour Code.

   • Work performed in private residences for the owner (e.g., nanny work) is also exempt.

Key Features of Ontario’s OHSA

1. Prevention Focus:

   • The OHSA is oriented towards preventing workplace accidents and diseases, rather than compensating injured workers.

2. Workers' Rights and Responsibilities:

   • Workers are endowed with three fundamental rights:

     1. Right to Participate:

     • Engage in identifying and resolving workplace health and safety concerns, primarily through the JHSC or health and safety representative.

     2. Right to Refuse Dangerous Work:

     • Cease work they believe poses a threat to their safety or others, with specific rights afforded to certified JHSC members for work stoppage.

     3. Right to Know:

     • Access information regarding potential hazards through adequate training and the Workplace Hazardous Materials Information System (WHMIS).

Duties of Workplace Parties

1. Shared Responsibilities:

   • The OHSA places health and safety obligations on all workplace parties – employers, supervisors, suppliers, workers, and directors.

2. Liability for Breaches:

   • Individuals (supervisors, workers, directors) may be held personally accountable for breaches of the OHSA, facing fines and possible imprisonment, along with liability potentially affixed to employers.

Industrial Establishments Regulation under the OHSA

1. Regulatory Coverage:

   • Applied in all Ontario workplaces lacking specific industry regulation, addressing crucial safety aspects:

     • Protective devices requirements.

     • Machine guarding standards.

     • Personal protective equipment adherence.

     • Minimum age regulations for various occupations.

     • Standards covering lighting, fire safety, air quality, and workplace hygiene.

Employer Duties under the OHSA

1. General Obligations:

   • Employers must take all reasonable precautions to protect worker health and safety.

2. Specific Duties:

   • Appoint competent, health and safety-knowledgeable supervisors.

   • Maintain equipment in operational order.

   • Ensure worker usage of protective equipment.

   • Formulate a written health and safety policy, maintain a related program, and review it annually (with exceptions for small workplaces).

   • Publicly display the written health and safety policy.

   • Educate workers on job hazards.

   • Inventory hazardous materials with related information disclosed to workers.

   • Aid JHSCs and health and safety representatives in their roles.

   • Ensure appropriate documented training and compliance with regulations.

   • Maintain records of harmful agents as dictated by OHSA regulations.

   • Report workplace incidents accurately to the MOL.

Worker Duties under the OHSA

1. Compliance Requirements:

   • Workers must adhere to the OHSA and associated regulations actively.

   • Utilize required protective gear and report any hazards or defective equipment.

   • Avoid engaging in unsafe behavior or pranks in the workplace.

2. Progressive Discipline:

   • Employers are expected to discipline workers proportionately for OHSA violations, with progressive discipline typically necessary prior to termination for cause.

USWA Local 862 v Canadian General Tower Ltd.

Case Background:

1. MOL issued orders regarding machine safety mechanisms due to prior accidents.

2. The employer informed workers about prohibitions, yet one machine operator disregarded this and put others at risk, leading to injury.

3. As a result, the operator faced termination for their violation.

OLRB Decision:

1. No reinstatement of the worker; proper grounds for termination existed.

2. Employers may exercise their right to terminate for reckless safety violations.

3. Progressive discipline is not mandatory when prior warnings on safety risks have been given, and the conduct remains hazardous.

Supervisor and Supplier Duties under the OHSA

Supervisor Duties:

1. Ensure worker compliance with OHSA.

2. Advise workers of dangers and provide written safety instructions.

3. Take all reasonable precautions to ensure safety.

Supplier Duties:

1. Guarantee equipment meets safety regulations and is in good condition.

2. Notify employers of proper usage and capacity limits.

OHSA Duties Applicable to All Workplace Parties

Unyielding Responsibilities:

1. No interference with or disposal of wreckage from serious workplace accidents.

2. No tampering with workplace monitoring devices.

3. No obstruction of JHSC or safety representatives performing their duties.

Employee's Right to Refuse Unsafe Work

1. Inherent Job Dangers:

   • Employees may be precluded from refusing work risks inherent to their role (e.g., police duties).

2. Non-Inherent Job Risks:

   • Employees can refuse tasks deemed unsafe that do not belong to their core job functions.

Procedure for Exercising the Right to Refuse Unsafe Work

Stages:

1. Stage 1:

   • The refusal is based on a sincere belief of danger.

2. Stage 2:

   • The supervisor must investigate with the worker present alongside a JHSC member.

3. Stage 3:

   • If unresolved, refusal can continue if the worker has reasonable cause to feel unsafe.

4. Stage 4:

   • An MOL inspector is called for further investigation.

5. Stage 5:

   • The inspector provides a binding written decision on the safety of the work.

   • If deemed unsafe, corrective orders are issued to the employer.

6. Stage 6:

   • Decisions made by MOL inspectors can be appealed to the OLRB.

Important Considerations Regarding Worker Refusals

1. Workers cannot refuse tasks based purely on personal preference.

2. Employers are forbidden from penalizing workers who exercise their rights to refuse unsafe work.

3. A refusal must strictly relate to safety concerns.

4. Employees can collectively refuse unsafe work when they genuinely believe their safety is at risk.

5. Assessments of the reasonableness of refusals factor in the knowledge of the worker at the refusal time.

6. Supervisory behavior that creates a threatening environment can legitimize a work refusal, as seen in case precedent.

WHMIS

1. Introduction:

   • The Workplace Hazardous Materials Information System is a national program for all industries in Canada.

2. Purpose:

   • Provides essential information about handling hazardous materials.

3. Employer Responsibilities under WHMIS:

   • Ensure labels are applied correctly on hazardous products.

   • Provide access to up-to-date Material Safety Data Sheets (MSDSs).

   • Train workers handling hazardous materials on safe practices.

Smoking in the Workplace

1. Under the Smoke-Free Ontario Act (2017), employers must enforce a non-smoking policy in enclosed workplaces, fulfilling various post signage obligations.

Workplace Violence and Harassment

1. Employers are responsible for assessing and addressing workplace violence/harassment risks under Bill 168.

2. Definition of Workplace Harassment:

   • Engaging in unwelcome conduct toward a worker that should be reasonably known to be unwelcome.

3. Policy Requirements:

   • Written workplace violence policies must be in place for workplaces with six or more employees and displayed prominently.

Kingston (City) v Canadian Union of Public Employees Case Facts

1. Employee with extensive history of misconduct shows behavior issues related to violence.

2. After participating in training and showing no improvement, the employee made a death threat to a coworker and was subsequently fired.

Employer Accident Reporting Obligations under the OHSA

1. All workplace accidents must be reported to the MOL.

2. Critical Injuries Must Be Reported Immediately:

   • Includes instances such as amputations, severe blood loss, or life-threatening situations.

3. Non-Critical Injuries:

   • Must be reported within 4 days, alongside occupational illnesses.

Offences under the OHSA

1. Prosecution limitations exist for two years post-awareness of an offence by an MOL inspector.

2. Most offences are strict liability, meaning intent is not a factor in violations.

3. Due Diligence Defence:

   • Employers may defend against charges by proving all reasonable precautions were taken to prevent violations.

Criminal Code Charges for OHSA Violations

1. Employers may face charges of criminal negligence causing death or bodily harm.

2. Fines vary immensely, particularly for serious offences with no maximum limits imposed for indictable offences.

3. Offenders face stiff penalties based on principles of denunciation and deterrence, particularly where a death results.