Need to know: Health & Safety

Need to know: Health and Safety

Health and safety is about preventing people from being harmed at work or becoming ill through work, the law states that we must not put ourselves; other workers or the public in danger and this applies to all businesses of all sizes.

Under the Occupational Health and Safety Act, a self employed person must abide by the sections of the act that pertain to them.

Self-employed people are required to notify a director of the Ministry of Labour, in writing, if they sustain an occupational injury or illness.

Outlined below are the OHSA obligations of an employer under the General Duties of Employers Clauses and Prescribed Duties of an Employer both under Section 25 & 26 of the act.  Please note that under the act, Self Employed Persons must follow (with necessary modifications the following sections of the act:

4.  Subsection 25 (1), clauses 26 (1) (c), (e), (f) and (g), subsection 33 (1) and sections 34, 37, 38, 39, 40, 41, 51, 52, 54, 57, 59, 60, 61, 62, 66, 67, 68 and 69, and the regulations in relation thereto, apply with necessary modifications to a self-employed person. 2001, c. 9, Sched. I, s. 3 (1).

 

General Duties of Employers

An Ontario employer, who is covered by the Act, has an obligation to:

• instruct, inform and supervise workers to protect their health and safety [section 25(2)(a)];
• assist in a medical emergency by providing any information–including confidential business information–to a qualified medical practitioner who requests the information in order to diagnose or treat any person [section 25(2)(b)];
• Appoint competent persons as supervisors [section 25(2)(c)]. "Competent person" has a very specific meaning under the Act. He or she must:
• be qualified–through knowledge, training and experience–to organize the work and its performance;
• be familiar with the Act and the regulations that apply to the work being performed in the workplace;
• know about any actual or potential danger to health and safety in the workplace; ^{[ 1 ]}
• inform a worker, or a person in authority over a worker, about any hazard in the work and train that worker in the handling, storage, use, disposal and transport of any equipment, substances, tools, material, etc. [section 25(2)(d)];
• help committees and health and safety representatives to carry out their duties [section 25(2)(e)];
• not employ workers who are under such age as may be prescribed or knowingly permit underage persons to be in or near the workplace [sections 25(2)(f) and (g)]; ^{[ 2 ]}
• take every precaution reasonable in the circumstances for the protection of a worker [section 25(2)(h)];
• Post in the workplace a copy of the Occupational Health and Safety Act, as well as explanatory material prepared by the ministry that outlines the rights, responsibilities and duties of workers. This material must be in English and the majority language in the workplace [section 25(2)(i)];
• Prepare a written occupational health and safety policy, review that policy at least once a year and set up a program to implement it [section 25(2)(j)]. ^{[ 3 ]} For guidance on how to do this, see Appendix A;
• post a copy of the occupational health and safety policy in the workplace, where workers will be most likely to see it [section 25 (2)(k)];
• Provide the joint committee or the health and safety representative with the results of any occupational health and safety report that the employer has. If the report is in writing, the employer must also provide a copy of the relevant parts of the report [section 25(2)(1)];
• Advise workers of the results of such a report. If the report is in writing, the employer must, on request, make available to workers copies of those portions that concern occupational health and safety [section 25(2)(m)]; and
• ensure that every part of the physical structure of the workplace can support all loads to which it may be subjected, in accordance with the Building Code Act and any standards prescribed by the ministry [section 25(1)(e)]. This duty also applies to the self-employed.

 

Prescribed Duties of Employers

The word "prescribed" appears in many sections of the Act. It means that a regulation must exist in order to put into effect the requirements of that section. Where there is no regulation, the requirements of that section are not in force.

Employers and supervisors have an obligation to know which regulations apply to their workplaces. If there is any uncertainty, an inspector should be consulted.

Here is a list of duties of employers, under the Act, which may be prescribed. The first seven duties also apply to the self-employed. Where there is a regulation, an employer must:

1. provide and maintain in good condition any prescribed equipment, materials and protective devices [sections 25(1)(a) and (b)];
2. ensure that the above are used in accordance with the regulations [section 25(1)(d)];
3. carry out any measures and procedures that are prescribed for the workplace [section 25(1)(c)];
4. keep and maintain accurate records, as prescribed, of the handling, storage, use and disposal of biological, chemical or physical agents [section 26(1)(c)];
5. notify a director of the Ministry of Labour of the use or introduction into a workplace of any prescribed biological, chemical or physical agents [section 26(1)(e)];
6. monitor, as prescribed, the levels of biological, chemical, or physical agents and keep and post accurate records of these levels [section 26(1)(f)];
7. comply with a prescribed standard that limits the exposure of a worker to biological, chemical or physical agents [section 26(1)(g)];
8. keep, maintain and make available to workers prescribed records of worker exposure to chemical, biological or physical agents [section 26(1)(d)];
9. establish and maintain an occupational health service for workers, as prescribed [sections 26(1)(a) and (b)];
10. provide prescribed medical surveillance programs and safety-related medical examinations and tests, for the benefit of workers [sections 26(1)(h) and (i)]; ^{[ 4 ]}
11. ensure, where prescribed, that only workers who have taken any prescribed medical examinations, tests or X-rays and who have been found physically fit to work, be allowed to work or be in a workplace [section 26(1)(j)];
12. where so prescribed, provide a worker with written instructions on the measures and procedures to be taken for his or her protection [section 26(1)(k)]; and
13. Carry out any prescribed training programs for workers, supervisors and committee members [section 26(1)(l)].

When hiring contractors or self-employed persons they must provide a copy of  WSIB Certificate and insurance for general liability to you or sign WSIB exemption form - 1158A General Independent Operators Questionnaire.

Health & Safety Case Law Review

From the changes made under the Occupational Health and Safety Act over the past couple of years, case law is now appearing.  A year and a half after the legislation was passed for Bill 168 - Violence and Harassment in Ontario - we are starting to see evidence in the courts.  In other provinces, precedence is being set as with the ruling for a health and safety representative in Nova Scotia.

In the Ontario case - Murphy verses Carpenters 2011 - an application was made under Section 50 of the Occupational Health and Safety Act in which the applicant Gary Murphy alleges that his former employer, The Carpenters District Council of Ontario dismissed him from his employment as a reprisal for raising complaints about his immediate supervisors conduct.  Despite the responding parties position that the applicant failed to make out a prima facie case of a breach of the act, it has been determined that this application puts reverse onus on the employer to provide proof that the employees dismissal did not occur as a result of the employee acting in compliance with OSHA or seeking its enforcement.  This case has been referred to the Registrar to list for hearing. 

It will be interesting to follow this case to its conclusion.  To read more about this case - http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii71880/2011canlii71880.html

In another reprisal case, the Ontario Labour Relations Board has made a ruling that it does not have jurisdiction to hear a complaint under the Occupational Health and Safety Act where an employee suffers reprisal for raising a harassment complaint with his or her employer; as a result of November 18th, 2011 decision in the Harper verses Ludlow Technical Products Canada Ltd.  This forces employees to deal with harassment under their internal corporate policies and not through OLRB.  This does not mean employees can't take their case to Human Rights.

To read more on this case:  
www.occupationalhealthandsafetylaw.com/bill-168-update-olrb-will-not-hear-harassment-reprisal-complaint-under-ohsa

In Nova Scotia a health and safety representative has been charged for failing to follow through with an employer on a report of asbestos found in the insulation of housing units that he presented to two supervisors employed with his employer.

The court found the safety representative guilty of failing to take reasonable precautions for the safety of persons at or near the workplace, including residents of the homes that contained the asbestos insulation.   This decision came about due to his job description that identified he was responsible for promoting a safe and healthy workplace. This case resulted in a conviction and a $1000.00 fine for the safety representative and 515 compliance orders.

For more information on this case go to:

www.occupationalhealthandsafetylaw.com/safety-co-ordinator-who-assumed-a-passive-role-convicted-under-ohs-act

Lynne Bard, BA (Honours), C.H.R.P., CES

Human Resources, Safety & Risk Management Experts

Taking the Complexity out of Compliance

President

Beyond Rewards Inc.

Phone: 519-821-7440

Cell: 519-830-7480

mail: lbard@beyondrewards.ca

Bill 168 Violence and Harassment in the Workplace

Originally published in HazMat Magazine - Summer 2010

In a development that should be of interested to readers in all provinces, Ontario is playing catch0-up with the other provinces and jurisdictions such as the federal sphere (federal legislation governs transportation companies, banks, airlines and other federal undertakings), British Columbia, Alberta, Saskatchewan, Manitoba and Nova Scotia who have all directly addressed that problem of workplace violence as a health and safety issue for years.

Violence and harassment issues in the workplace and how we handle these matters have been drastically changed by Bill 168 as of December 15, 2009 when this new legislation received Royal Accent. Workplaces across Ontario are required to develop measures to address violence and harassment in the workplace, develop policies, procedures, conduct risk assessments of their organization, and put programs and training in place for their staff.

Hazards Often Missed

Originally printed in the Guelph Business Venture Magazine - December 2009

As recommended by the Conference Board of Canada, businesses that wish to succeed and prosper in today’s economy need to start to include psychosocial issues in their policies and programs. Organizations that identify and correct the psychosocial issues in the workplace will experience fewer injuries, less sick time, less benefit claims, and will see an increase in productive, healthy and happy employees.

Psychosocial hazards are workplace stressors or work organizational factors that can threaten the mental or physical health of employees. Examples your organization may identify with include; work overload and time pressures, lack of influence or control over job, lack of social support from supervisor or co-workers, lack of proper training or lack of any training to properly perform the job, to little or too much responsibility, ambiguity in the job responsibilities, lack of status, rewards and appreciation, discrimination, harassment or bullying by co-workers or supervisor, poor communication, lack of respect for the employee and the work they do.