EMPLOYMENT LAW - CHAPTER 7 - OCCUPATIONAL HEALTH AND SAFETY ACT, OHSA

EMPLOYERS INCREASE CREDIBILITY OF DUE DILIGENCE BY: (cont) - holding monthly safety meetings in every department or work group, - disciplining workers and managers who fail to follow safety requirements,

- Conducting regular safety inspections and assets audits, - implementing a system of recognition and rewards for reaching safety goals, - keeping equipment in good order.

EMPLOYERS DUTIES: Employers have an overriding duty to take every reasonable precaution, as well as numerous specific obligations, including:

- duty to maintain equipment in good condition, - to ensure that workers use protective equipment, - to implement a Written occupational health & safety policy, - to report work-related accidents, injuries, or illness.

WORKPLACE Hazardous Materials Information System WHMIS: Is a national hazardous materials information system that provides essential information about controlled products. Under WHMIS, an employer must: - prepare and maintain an inventory of hazardous materials,

- label hazardous materials with a legible supplier or workplace label, - prepare or obtain material safety dats sheets, MSDSs, for every hazardous material in the workplace, Provide worker training about safe use, handling, & storage of hazardous materials or physical agents.

WORKERS DUTIES: Workers have a number of obligations under the OHSA, including the duty to: 1. Comply with the OHSA & it's regulations,

2. Use any equipment, protective device, or clothing required by employer, 3. Report any missing or defective equipment or protective device that might be dangerous,

POWERS and duties of the JHSC: 1. Identifying potentially dangerous situations in the workplace, 2. Obtaining information from the employer regarding workplace hazards,

3. Making recommendations to employer for improving workplace health and safety, 4. Investigating work refusals, 5. Investigating serious injuries in the workplace, 6. Obtaining information from WSIB regarding compensation claims,

SUPPLIERS DUTIES

Additional duties apply to suppliers of leased equipment for the workplace, corporate officers and directors, and architects and engineers.

OFFENCES AND PENALTIES:

Any person who contravenes the OHSA or who fails to comply with an order is potentially liable under section 66. Individuals may be liable for fines of up to $25,000 and/or imprisonment for up to 12 months, although the latter is rare.

PLANNING FOR A PANDEMIC: (continued):

During a pandemic, employees may be entitled to leave under the ESA, including emergency leave, family medical leave, or personal emergency leave.

THE RIGHT TO REFUSE UNSAFE WORK/ RIGHT TO STOP WORK: (continued):

Employers may not penalize a worker for exercising this right, Employees may act as a group to refuse unsafe work.

WORKPLACE VIOLENCE AND HARASSMENT: (continued):

Employers must conduct a violence risk assessment and prepare, implement, and annually review prevention policies, The workplace anti-violence requirements mandate that employers address domestic violence in the workplace.

EMPLOYERS DUTIES: continued:

Employers must maintain records proving that all employees and supervisors have completed safety awareness training or are exempt.

DUTIES OF THE WORKPLACE PARTIES:

Every party involved with the workplace has duties under the OHSA, - some workplace parties may be found personally liable in the event of a breach of the OHSA.

INTRODUCTION: Health and safety laws impose rigorous requirements on everyone in the workplace to avoid accidents.

Failure to comply with statutory standards can incur significant liability, - organization's may be fined for violating statutory standards even when no accident or injury has occurred.

OWNERS DUTIES

Include ensuring that facilities ad workplaces comply with the OHSA and its regulations.

THE RIGHT TO PARTICIPATE IN THE HEALTH AND SAFETY PROCESS:

Is generally exercised through the appointment of a JHSC or a health and safety representative, - a JHSC will be responsible for spotting dangers in the workplace, developing policies, and investigating injury.

THE INTERNAL RESPONSIBILITY SYSTEM (continued): The OHSA gives workers the right to participate in the health and safety process, mostly through the JHSC, to refuse unsafe work, and to know about potential hazards in the workplace.

Joint health and safety committees, JHSCs, are generally required in workplaces with 20 or more workers. - in workplaces whit 6 to 19 workers, a single health and safety representative plays the same role.

THE INTERNAL RESPONSIBILITY SYSTEM

The IRS is based on the premise that the government alone cannot effectively regulate all workplaces. - it emphasizes participation by all parties to ensure a healthy and safe workplace.

Structure of the JHSC

The JHSC and Health and Safety Representatives, Sections 8 to 12: Joint Health and Safety Committee:

KEY FEATURES OF THE OHSA:

The OHSA focuses on prevention of workplace accidents & diseases, Workplace parties share responsibility in the internal responsibility system, Particular industries & hazards may have specific rights & requirements,

INTRODUCTION: (continued):

The two 2 major Ontario Statutes that address health and safety In the workplace are: - the Occupational Health and Safety Act OHSA, - the Workplace Safety and Insurance Act, 1997 WSIA.

MINISTRY INSPECTORS

They generally become involved only when the self-regulatory system breaks down. - Inspectors may conduct random, unannounced inspections of workplaces, and employers are required to cooperate.

CRIMINAL LIABILITY OF ORGANIZATIONS: Section 217.1 of the Criminal Code reads: Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is sunder a legal duty to take reasonable steps to prevent bodily harm to that person...

This enables courts to hold organization's criminally liable for the acts or omissions of employees acting within the scope of their authority, Individuals who are convicted of serious health and safety violations face the possibility of life imprisonment.

SUPERVISORS DUTIES

Workers duties apply to supervisors, but they have additional duties, such as advising workers of potential or actual health and safety dangers.

THE RIGHT TO KNOW:

Workers have right to know about potential hazards to which they may be exposed. - this includes right to receive training about safe use of machinery, equipment & processes.

KEY FEATURES OF THE OHSA: continued: Certified members of a JHSC have the right to stop work that is dangerous to any worker in specified circumstances,

Workers have the right to know about potential hazards through training & the WHMIS Workplace Hazardous Material Information System, Penalties for violating the OHSA include fines of up to $500,000 & imprisonment.

KEY FEATURES OF THE OHSA: continued:

Workers have the right to participate in identifying and resolving health and safety concerns through the JHSC or their health and safety representative, Workers have the right to refuse dangerous work,

THE RIGHT TO REFUSE UNSAFE WORK/ RIGHT TO STOP WORK: Section 43: The right to refuse unsafe work or to stop work is restricted in occupations in which danger is an inherent part of the job, such as police officers or firefighters.

Workers may refuse work when they honestly believe that their equipment, the physical condition of their workplace, or workplace viola eve is likely to endanger them. - initially, this belief does not have to be objectively reasonable.

TO MINIMIZE THE RISKS OF WORKPLACE VIOLENCE AND HARASSMENT, employers should: (continued):

- Discipline employees for failing to adhere to policies, - contact law enforcement as appropriate, - balance the duty to maintain a safe workplace with employees' right to maintain privacy.

ACCIDENTS: Both the OHSA and the Workplace safety and insurance Act WSIA impose accident-reporting obligations on employers, Employers must report all accidents in the workplace to the Ministry of Labour.

- Employers must also give notice to the Ministry upon being informed of an occupational illness or claim, as well as incidents such as fires, - the duty to report an accident involving a non-worker only arises when there is some link to worker safety in the workplace.

ACCIDENT INVESTIGATION PROCEDURES: Accident investigation should be led by a senior employee who should be trained in accident investigation, When investigation, employers should:

- Ensure that investigation begins promptly, - prepare and file requisite information for the Ministry, - obtain a statement form the worker, if possible, - take photographs &, if relevant, samples of hazardous material, - obtain signed witness statements in the presence of a third party,

ACCIDENT INVESTIGATION PROCEDURES: (continued):

- Ensure that the accident site is secure, - develop a remedial action plan to address the causes of the accident, - have a management representative accompany the Ministry inspector.

TO MINIMIZE THE RISKS OF WORKPLACE VIOLENCE AND HARASSMENT, employers should: - Train all employees in violence prevention, - Make reporting mandatory,

- Regularly inspect the workplace to ensure that standards are maintained, - designate a response team to investigate all incidents, - maintain accurate & detailed records of incidents & investigations.

WHO IS COVERED? The OHSA applies to workers rather than employees,

- WORKERS includes anyone paid to perform work or supply services, including independent contractors and agency employees, - Bill 18 would expand the definition of worker to cover unpaid workers, including unpaid interns and co-op students,

WORKPLACE VIOLENCE AND HARASSMENT: The OHSA imposes a specific duty on employers to take steps to address workplace violence and harassment,

- Workplace violence includes both the exercise of physical force and the attempt or threat of such, - workplace harassment refers to engaging in a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome,

MINISTRY INSPECTORS (continued): If an inspector finds a contravention of the OHSA or regulations, depending on the seriousness, he may issue an order requiring compliance or a stop-work order,

- an inspector's order is binding as soon as it is issued, - when an employer believed that it has complied with an inspector's order, it must submit a notice of compliance within three 3 days of compliance.

EMPLOYERS DUTIES: continued: Employers are also required to ensure that all workers and supervisors complete a basic occupational health and safety awareness training program,

- basic worker training must cover topics including duties and rights of workplace parties, common workplace hazards, and WHMIS, - basic supervisor training covers additional topics, such as how to recognize, assess, and control workplace hazards,

THE RIGHT TO KNOW: (continued): Designated substances: Are hazardous biological or chemical agents, the use of which requires employers to take specific protective measures.

- certain designated substances may be subject to maximum exposure limits and measures to protect workers. - the general hazardous substances regulations is the Control of Exposure to Biological or Chemical Agents regulation, made under the OHSA.

EMPLOYERS CAN INCREASE THE CREDIBILITY OF A DUE DILIGENCE DEFENCE BY: - designing a senior manager to be responsible for OHSA compliance, - preparing a health and safety policy and safety procedures,

- maintaining a record of safety orientations for new employees, - supporting and responding to the JHSC, - identifying workplace hazards through internal & external safety audits,

PLANNING FOR A PANDEMIC: While employers are always encouraged to plan for emergencies, pandemic panning requires special policies and procedures, Components of a pandemic palm could include:

- minimizing direct interaction between employees, including alerting the physical workspace or allowing employees to work from home, - frequently des infecting desks and equipment, - avoiding unnecessary travel, - making a personal protective equipment, such as masks, available.

OFFENCES AND PENALTIES: (continued): Corporations may be liable for fines up to $500,000. In determining the amount of the fine, courts may consider: - the size of the organization,

- the scope of actual or potential harm, - the maximum penalty, - prior convictions, - the organization's attitude toward safety.

DUE DILIGENCE DEFENCE Employer may use that due diligence defence, meaning that it took every reasonable precaution to prevent the danger: - when considering due diligence, a court will typically consider:

-- an employer's safety record, -- the foreseeability of the risk, -- the hazards inherent in the industry.

RIGHT to stop work, sections 44 to 49: The right to stop work may be initiated in two ways by certified members of the JHSC: bilaterally or unilaterally: - A bilateral work stoppage occurs when...

... when a certified member of a JHSC has reason to believe that dangerous circumstances exist at the workplace and requests a supervisor to investigate. - 2 certified members who agree dangerous circumstances exist may direct employer to stop work & employer must comply.

MINISTRY INSPECTIONS: Sections 54 to 56 OHSA glove inspectors broad powers, including power to:

1. Enter any workplace without a search warrant, except where workplace is also personal dwelling, 2. Conduct tests or have tests conducted at employers expense, 3. Question anyone in the workplace, 4. Speak privately to any worker,

WORKERS RIGHTS: Under the OHSA, workers have three 3 key rights:

1. participate in the health and safety process, through the JHSC, 2. refuse unsafe work &, in the case of a certified member of a JHSC, to stop work that endangers workers in certain circumstances, & 3. To know about workplace hazards.

ACCIDENTS: If an accident occurs: ACCIDENT REPORTING: an employer should immediately: 1. Arrange for medical assistance for the injured worker, 2. Look out for machinery or equipment,

3. Secure the accident site, & 4. Notify the injured workers family, the ministry of Labour, the JHSC or Health and safety representative and its lawyer.

WORKERS DUTIES: (continued:) Although the Ministry of Labour rarely charges a worker for violating the OHSA, employers should impose appropriate discipline for failure to comply with requirements.

4. Report any known workplace hazard, & 5. Refuse to engage in any prank, contest, feat of strength, unnecessary running, or rough and boisterous conduct, such as racing forklifts in a warehouse.

MINISTRY INSPECTIONS: Sections 54 to 56 OHSA glove inspectors broad powers, including power to: (continued):

5. Compel the production of drawings, specifications, licences, or other documents for examination, and copy them, if necessary, before returning them to the employer, 6. Remove any equipment , machine, or device to test as necessary.

POWERS and duties of the JHSC: (continued):

7. Participating in the development, implementation, and annual review of training programs for workers related to hazardous materials or agents, 8. Selecting the committee co-chairs, 9. Appointing a designated member to represent the workers...

WHO IS COVERED? (Continued):

All workplaces in Ontario are covered, except: - workplaces under federal jurisdiction, - workplaces at which work is done by an owner, occupant, or servant, that is a person who is directly employed by the owner or occupant, in a private residence or its connected land.

CONSTRUCTORS DUTIES

Are similar to those of employers, including the duty to. Monitor subcontractors for compliance and the duty to appoint competent supervisors.

ADMINISTRATION AND ENFORCEMENT: ADMINISTRATION

To make out an offence under the OHSA , the ministry must prove beyond a reasonable doubt that an act or omission of the employer caused the danger to exist,

RIGHT to stop work, sections 44 to 49: (continued):

Unilateral work stoppage: when a certified member of JHSC finds dangerous circumstances exist and 1 of 2 other criteria apply: - ORLB has declared unilateral work stoppage provisions will apply. - an employer voluntarily consents to the adoption of this procedure.