A Worker’s Guide to the Occupational Health and Safety Act-2

In memory of Lisa McCaskell

Senior Health and Safety Officer OPSEU/SEFPO

September 1999 – February 2019

Introduction

The Worker’s Guide to the Occupational Health and Safety Act is produced by the OPSEU/SEFPO Worker Safety Unit to provide members with basic information and interpretation of the Occupational Health and Safety Act (OHSA) as it describes the powers of Joint Health and Safety Committees (JHSC) and Health and Safety Representatives (HSR). This latest edition of the Worker’s Guide has been created with some interactive components to assist you the reader, whether you are reading this online or a standard printed copy.

If you are reading our online version, the CLICK HERE links found throughout will redirect you to the associated webpage or related resource with a click of your mouse. If you are reading a hardcopy version, the QR Codes found throughout will also redirect you via your smartphone.

While the guide will provide some clarity and understanding of the OHSA, readers must also recognize the limitations of the law. The law is conservative and read narrowly by inspectors, mediators, or adjudicators. Knowing the law, how to use the law along with its relevant regulations, and where they can provide leverage is key.

In June 2016, after extensive research, the Labour Occupational Health Clinics Academic Research Collaboration, (LOARC – an association of worker health and safety representatives, practitioners, researchers and union representatives including staff from OPSEU/SEFPO’s health and safety unit), concluded in their publication ‘Health and Safety Representation: Writing the Workers Back In’, HSR’s and JHSC members tend to define their role in one of two ways – either in narrow technical and legalistic terms relying on rules and procedures or in broader political terms willing to challenge management’s assumption and mobilize support from co-workers. LOARC defined these workers as the Technical-Legal Activists and the Knowledge Activist.

The LOARC research identified clear contrasts between the Technical-Legal and the Knowledge Activist approaches. The Technical-Legal orientation rep. spent a greater proportion of their time on bureaucratic tasks. While the Knowledge Activists rep. spent a greater proportion of their time collecting knowledge and networking. To be clear, both approaches have value.

The LOARC research also identified, unionized workplaces and the collective action of its members, have a greater impact on management’s commitment to health and safety.

To learn more about LOARC, please visit:

https://loarc.mcmaster.ca/

To read or download the LOARC publication ‘Health and Safety Representation: Writing the Workers Back In’ visit:

https:/loarc.mcmaster.ca/documents/2016-loarc-workers-guide-1-170609.pdf

We have known for a long time, on the issue of health and safety in the workplace far too many employers focus on the individual behaviours of workers, rather than taking the responsibility as an employer to make the conditions of the workplace better for all workers. Employers who focus on individual behaviours, poorly (and rarely) utilize joint approaches and consistently find ways to sideline workers from their role and legislated right to participate in health and safety. JHSC’s and HSR’s might have meetings with employer rep.’s, share coffee and talk about health and safety – but meaningful and effective changes to workplace safety remain elusive.

When JHSC member’s or HSR’s include their co-workers in their work and coordinate their efforts with shared objectives of the workplace or the union as a whole, we take the focus off individuals and place the focus on changing the overall working conditions, making it safer for everyone.

Networking with your co-workers and other OPSEU/SEFPO members to promote knowledge activism, as well as the worker rights under the OHSA, can contribute greatly to strengthening the bargaining position for many worker demands including health and safety provisions into your collective bargaining agreements.

It is understood, workers and managers have different roles and priorities in the workplace. Employers consider the cost of everything, and weigh that cost against the severity of risks, injuries, likelihood of enforcement, and what other workplaces are doing, to name a few factors. Workers on the other hand, are concerned about their minds and bodies as well as the paycheque.

When it comes to health and safety in the workplace, JHSC member’s & HSR’s understand the realities of the differing perspectives between workers and management is the norm. Members of the JHSC and HSR’s who see this broad picture are better positioned to adopt strategies to operate more successfully within it. Therefore, JHSC member’s & HSR’s need to choose their strategies carefully and strategically.

The health and safety case law section at the rear of this booklet contains some case law references and will provide you with some of the major rulings on appeals and reprisal complaints that further clarify the application of the Act.

Whether you have taken on the role of a health and safety representative, sit on a Joint Health and Safety Committee, you are a union steward or you are a worker, you can play an important role in making meaningful and effect change in your workplace.

The OPSEU/SEFPO Worker Safety Unit encourages all workers to learn about the OHSA and your rights under the legislation as described in this booklet and use them strategically to participate in a collective movement to strengthen the position of the worker in all areas of your workplace – including health and safety.

In turn, your efforts to improve health and safety in Ontario workplaces will demonstrate to employers, policy makers and governments their priority should be to protect the lives of all Ontario workers and ensure safe and healthy workplaces in all sectors – because that is OUR priority. The Ontario Occupational Health and Safety Act and its Regulations need to be improved, strengthened, and enforced, not weakened.

OPSEU/SEFPO is committed to help and this Guide has been created to assist workers in these efforts.

– OPSEU/SEFPO Worker Safety Unit

PART A:

What’s new?

This latest edition of OPSEU/SEFPO’s Worker’s Guide incorporates information about key changes or amendments made to the Act and its Regulations 2017-2023.

The Act:

2017 – “health and safety management system” – means a coordinated system of procedures, processes and other measures that is designed to be implemented by employers in order to promote continuous improvement in occupational health and safety
2017 – Footwear. An Employer shall not require a worker to wear footwear with an elevated heel unless it is required for the worker to perform his or her work safely. There is an exemption for employers of workers who work as performers in the entertainment and advertising industry.
2019 – “Duty of owners – washroom access” – the owner of a workplace shall ensure that access to a washroom is provided, on request, to a worker who is present at the workplace to deliver anything to the workplace
2021 – Although first introduced in 2011, a proposed amendment requiring health and safety representatives in workplaces with less than 20 but more than 5 workers receive certification training to enable him or her to effectively exercise the powers and perform the duties of a health and safety representative, never received proclamation by the Lieutenant Governor. This proposed amendment requires reintroduction in the Legislature for it to become a part of the Act.
2022 – Naloxone Kits” – Where an employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer, or where the prescribed circumstances exist, the employer shall, provide and maintain in good condition a naloxone kit in that workplace
2023 – raising the maximum fines for contraventions of the Occupational Health and Safety Act from $100,000 to $1,500,000 for directors and officers of a corporation, and from $100,000 to $500,000 for other individuals
2023 – extending the limitation period for health and safety prosecutions from 1 year to 2 years

Regulations:

2021 – Expansion/clarification of employer reporting requirements for workplace related fatalities, critical injuries, occupational illnesses and other incidents
2023 – prescribed maintenance and content requirements of workplace naloxone kits
2020 – Basic Occupational Health and Safety Awareness Training for workers and supervisors including duties and rights of workers and supervisors; the roles of health and safety representatives; recognition, assessment and control of workplace hazards by supervisors and more

Ministry Name Change & Expansion of Responsibilities:

2022 – Ministry of Labour (MOL) becomes the Ministry of Labour, Immigration, Training and Skills Development (MLITSD). The Ministry website indicates the re-named Ministry will be helping to protect workers and settle workplace disputes, supporting skilled trades, apprenticeships, and employment services, attracting highly skilled newcomers, and helping people get settled in Ontario while also creating and promoting pathways to immigrate to Ontario and the associated supports for newcomers and refugees moving to, and settling in, the province.

Application of the Act

Who is covered by the law?

The Occupational Health and Safety Act covers almost all workplaces in A workplace is any place “at, upon, in, or near” where a worker performs work. The Act applies to workers, employers, supervisors, contractors, owners of premises and suppliers of materials and equipment.
Public school and university teachers are also covered by the Act specific to O. Reg.’s 858 and 857(1990).
Farming operations such as mushroom, greenhouse, dairy, hog, cattle and poultry farming are covered by the Act with the enactment of Regulation 414/05 as long as they have at least 1 paid worker.
“Worker” in the OHSA also includes co-op students and unpaid interns giving them the same rights as paid

Who is not covered by the Act?

The Act does not apply to work performed by an owner/occupant or domestic servants in a private

Sec. 3, Sub. 1 and 2

The Act does not apply to workplaces under the jurisdiction of the federal government of

PART B:

Duties and Responsibilities

What are the duties of the employer?

The employer must:

Take all reasonable precautions for the protection of workers. This includes taking appropriate measures to protect susceptible or disabled workers.

(See Part L: Case #6, #7)

Sec. 25, Sub. 2(h)

Provide information, instruction and supervision for the protection of workers.

Sec. 25, Sub. 2(a)

Ensure that all supervisors have a working knowledge of the Act and regulations as well as any actual or potential hazards at the workplace.

Sec. 25, Sub. 2(c) (d)

Ensure all equipment required by the Act or regulations is provided, maintained in good condition and used properly by workers.

Sec. 25, Sub. 1(a) (b) (d)

Develop and review annually a written health and safety policy, post it in the workplace, and maintain a program for its implementation.

Sec. 25, Sub. 2(j) (k)

Ensure that work practices required by the Act and regulations are carried out.

Sec. 25, Sub. 1(c) (d)

Ensure that health and safety committees and representatives are selected as required.

Sec. 8, Sub. 1 and Sec. 9, Sub. 4

Cooperate and afford assistance to a joint committee and its members and health and safety representatives in carrying out their duties.

Sec. 25, Sub. 2(e)

Give a written response to joint committee recommendations within 21 days. This must include a timetable for implementation or reasons for not agreeing with the recommendations.

Sec. 9, Sub. 20 and 21

Provide joint committees and health and safety representatives with any health and safety reports in his/her possession.

Sec. 25, Sub. 2(l)

Advise workers of the results of any health and safety reports in his/her possession and make copies available upon request.

Sec. 25, Sub. 2(m)

Provide a medical surveillance program for workers where required by regulation, pay for all medical tests and travel expenses, and provide paid time off work.

Sec. 26, Sub. 1(h) (i) and Sub. 3

Carry out training programs for workers, supervisors and committee members where required by regulation.

Sec. 26, Sub. 1(l)

Prepare written policies to address workplace violence and workplace harassment and review them at least annually.

Sec. 32.0.1, Sub. 1, 2, 3

Develop and maintain a workplace harassment program that includes measures and procedures to report harassment, including reporting to someone other than the employer if the employer is the alleged harasser, how information will not be disclosed until necessary to investigate or take corrective action, how the matter will be investigated and dealt with, and how complainants and respondents will be informed of results and any corrective action taken.

Sec. 32.0.6, Sub.2

The employer must consult with the joint health and safety committee or health and safety representative in the development and maintenance of the harassment program.

Sec. 32.0.6, Sub.1

For harassment complaints and incidents, the employer must perform a harassment investigation that is appropriate in the circumstances.

Sec. 32.0.7, Sub.1

The employer must review the harassment program as often as necessary but at least annually to ensure that it adequately implements the harassment policy.

Sec. 32.0.7, Sub.1

Develop and maintain a workplace violence program that includes measures and procedures to control the risks, measures and procedures for summoning immediate assistance when violence occurs or is likely to occur, and that describes how workers can report incidents and how employers will investigate incidents or complaints of workplace violence.

Sec. 32.0.2

The employer must assess the risks of workplace violence and advise the JHSC or health and safety representative of the results of the assessment and provide a copy if it is in writing. Reassess the risks as often as necessary to ensure that the workplace violence program continues to protect workers.

Sec. 32.0.3

Take all reasonable precautions to protect a worker from the hazard of domestic violence which may endanger a worker in the workplace. To meet this obligation, employers must be “aware or ought reasonably to be aware” of the hazard.

Sec. 32.0.4

The employer must provide workers with information and instruction on the contents of the workplace harassment and violence policies and programs.

Sec. 32.0.5, Sub. 2; Sec. 32.0.7

Provide a worker with information, including personal information about a person with a history of violent behaviour if the worker can be expected to encounter that person in the workplace and if the worker is at risk of physical injury. The employer is not to disclose more personal information than is reasonably necessary.

Sec. 32.0.5, Sub.3

If a worker is killed or critically injured at work, the employer must immediately advise an MLITSD inspector the health and safety representative or JHSC and the union. And within 48 hours, the employer must send the MLITSD a written report containing information and particulars as the regulations prescribe.

Sec. 51, Sub 1

Provide written notice containing the information and particulars as are prescribed in O. Reg. 420/21 within four days to the joint committee, health and safety representative and the trade union when workers are disabled from regular work (lost time or no lost time) or require medical attention as a result of an accident, fire, explosion or incident of workplace violence.

Sec. 52, Sub. 1

Give written notice of any occupational illness of current and former employees to the joint committee, the union and the Ministry of Labour, Immigration, Training and Skills Development within four days of being advised of such an illness or where a WSIB claim has been filed for such an illness.

Sec. 52, Sub. 2 and 3

Post inspectors’ orders in the workplace and provide joint committees and health and safety representative with copies of these.

Sec. 57, Sub. 10

What are the duties of supervisors?

A supervisor must:

Ensure that workers comply with the Act and regulations.

Sec. 27, Sub. 1(a)

Ensure that workers wear, or use required protective equipment, and follow all required measures and procedures.

Sec. 27, Sub. 1(b)

Advise workers of all existing and potential hazards, including workplace violence.

Sec. 27, Sub. 2(a)

Provide written instruction to workers on measures and procedures to be taken where required.

Sec. 27, Sub. 2(b)

Take all precautions reasonable in the circumstance for the protection of workers.

Sec. 27, Sub. 2(c)

The supervisor is responsible to ensure that workers follow all safety procedures. It is not enough to warn workers about dangers or safety rules, and then turn a blind eye to violations. They must tell workers about the hazards and ensure that they follow the safety procedures.

What are the duties of workers?

Workers must work in compliance with the Act and regulations.

Sec. 28, Sub. 1(a)

Workers are not required to participate in medical surveillance programs unless they consent to do so. However, under Section 26, Sub. 1 (j) an employer cannot permit a worker to work unless the worker has undergone medical examinations or tests required by a regulation and is found fit to work.

Sec. 28, Sub. 3

Workers must follow all required procedures and wear or use all required protective equipment.

Sec. 28, Sub. 1(a) (b)

Workers must report all safety defects in equipment or any hazard to the supervisor or employer.

Sec. 28, Sub. 1(c) (d)

Workers must not remove any required protective devices.

Sec. 28, Sub. 2(a)

Workers must report all violations of the Act and regulations and hazards to the supervisor or employer.

Sec. 28, Sub. 1(d)

Workers must not work in a manner or use defective equipment that might endanger the worker and others. In this instance a worker has a legal obligation to refuse work.

Sec. 28, Sub. 2(b)

What are the duties of owners and constructors?

An owner must determine if there is a designated substance on site, prepare a list of the substances and provide this list as part of any tendering information and ensure that constructors receive a copy before entering into a contract. The constructor must ensure that all contractors or subcontractors receive a copy before entering into a contract.

Sec. 30, Sub. 1, 2, 3, 4

A constructor must give written notice to the Ministry of Labour, Immigration, Training and Skills Development, joint committee or health and safety representative and the trade union of any accident or unexpected event that occurs on a project even if no one is injured.

Sec. 53

What are the duties of architects and engineers?

Architects and engineers are liable to prosecution if their advice or certification of a structure endangers workers.

Sec. 31, Sub. 2

What are the duties of directors and officers of corporations?

Officers and directors are legally liable to ensure that there is compliance with the Act, the regulations and MLITSD

Sec. 32 (a)

Can directors and officers be found criminally liable?

After the tragic loss of 26 miners in what became known as the Westray Disaster on May 9^th, 1992, the federal government introduced Bill C-45. Bill C-45 became law in 2004 and makes a clear statement: “Everyone who undertakes, has the authority, to direct how another person does work, performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person…”. – Criminal Code Sec. 217.1 {Duty of persons directing work}.

Several charges under this section have been laid since the enactment of Bill C-45 including:

A paving company (Transpave) was fined $100,000 in the death of 23-year-old Steve L’Ecuyer, killed in October 2005 while trying to remove a blockage in a machine.

The owner of a landscaping company was sentenced to 2 years less a day in the community with a curfew when found guilty of criminal negligence causing death when employee Aniello Boccanfuso was crushed by a backhoe against a wall on June 12, 2006.

On Dec. 24, 2009, four Toronto construction workers died and another was seriously injured when they plunged from a scaffold that suddenly collapsed while 14 floors above the ground. Supervisor Vadim Kazenelson was charged under the Westray Law and sentenced to three-and-a-half years in prison for failing to take reasonable steps to prevent the workplace accident. He became the first individual sentenced to prison under Section 217.1 of the Criminal Code. Metron Construction was also found guilty of criminal negligence causing death and fined $750,000. Metron’s owner was fined a further $90,000 for four violations of the OHSA.

On Feb. 15, 2017, driver Rheal Dionne, 39, was killed at Rainbow Concrete in Sudbury when the raised bed of his dump truck hit a concrete archway that collapsed onto the cab of his vehicle. Rainbow Concrete and its owner, Boris Naneff, were charged under the Westray Law as prosecutors alleged the training was insufficient. Dionne usually drove a ready-mix truck so he asked for and received a dump truck refresher course on the morning of the accident.

On October 31, 2023, Maple Leaf Foods, Inc. pled guilty in a Provincial Offences Court, in Brantford, Ontario and was fined $170,000 and an additional 25 per cent victims surcharge as required by the Ontario Provincial Offences Act for what the MLITSD media release described as, “…failure as an employer to ensure applicable requirements under the Occupational Health and Safety Act (OHSA) and Ontario Regulation 851/90 were followed…”. An investigation of the incident revealed, an apprentice millwright tasked with conducting maintenance and repair work of two process fans located inside a freezer, “… demonstrated a lack of knowledge on how to properly lock out the fans to ensure they were not operational…” and a secondary electrical panel which also needed to be locked or switched off, was broken at the time making it impossible to lock out the fan even if the worker knew how to lock it our properly. Unfortunately, the worker suffered severe critical injuries attempting to remove an obstruction while the fans were operating at full speed.

CLICK HERE to read about this important legislation

PART C:

Your right to participate

Where are joint health and safety committees required?

Joint committees are required in the following workplaces:

All workplaces where 20 or more workers are regularly employed.

Sec. 9, Sub. 2

All construction projects with 20 or more workers and lasting more than three months.

Sec. 9, Sub. 1(a) and 2(a)

With the exception of construction projects, in those workplaces where a designated substance regulations applies.

Sec. 9, Sub. 2(c)

In any workplace where an order has been issued under section 33 of the Act to control toxic substances.

Sec. 9, Sub. 2(b)

How do you calculate the number of workers?

To determine the number of workers in your workplace, the total number of all full-time and part-time workers on all shifts must be included. A worker does not have to be on the worksite for a full eight hours to be counted, as long as there is a consistent pattern of employment. Managers and supervisors are also counted.

(See Cases #24 and #25)

What workplaces are excluded from having joint committees?

A construction project lasting less than three months.

Sec. 9, Sub. 1(a)

All workplaces with fewer than 20 workers.

Sec. 9, Sub. 2(a)

All workplaces that may be exempted by special regulation.

Sec. 9 Sub. 1(b)

Can joint committees be requested where they are not required?

The Ministry of Labour, Immigration, Training and Skills Development has the power to order the establishment of one or more committees in a workplace or part of a workplace.

Sec. 9, Sub. 3 and 5

Negotiated safety committee systems may go beyond the provisions of the Act, such as area-wide, ministry-wide, agency or campus committees that comprise numerous workplaces. It is vital that these be legally sanctioned by the minister under Sec. 9, Sub. 3, 3.1, 4, and 5. The Minister will usually sanction these where a joint request is made by both union and employer.

What about workplaces with more than one location?

In the case of an employer with several work locations, the requirement for a joint committee applies to each location with 20 or more workers, not to the employer’s entire operation.
Some work operations have scattered work locations where no single worksite has more than 20 workers, but the whole operation may have over 20 employees. In this case, because no one worksite meets the criteria for the establishment of a joint committee, your employer is not compelled to form a committee. If a location has fewer than 20 workers and more than 5, a health and safety representative is required.

Can workers in workplaces with scattered locations request the Ministry of Labour, Immigration, Training and Skills Development to order a joint committee when one is not required?

In workplaces with scattered locations where there are fewer than 20 workers in each location, it is sometimes possible to form what is known as a multi-workplace Joint Health and Safety Committee. If workers in scattered workplaces such as this determine that a multi-workplace JHSC will improve health and safety conditions, they should consider the following two options:

A complaint to a Ministry of Labour, Immigration, Training and Skills Development health and safety inspector about the absence of a joint committee might result in an order from the inspector for the establishment of a joint committee that covers the entire operation (multi-workplace JHSC); or

Under Sections 9 sub. 3 and sub. 5 workers can request that the Ministry of Labour, Immigration, Training and Skills Development order your employer to establish a multi-workplace JHSC that covers the entire operation. When dealing with the union’s request, the Minister or his/her designee (usually the regional director) must consider the following:
- the nature of the work, e.g., how hazardous it is;
- the frequency of illness and injury in the operation or the sector;
- the existence of health and safety programs and practices;
- whether the request is made jointly or just by the union or the employer.

The success of your effort will depend on the local union making a strong case for the committee’s establishment. The union will have to show that workers face serious hazards and need an avenue to raise and address them with the employer.

To do this, your local union will have to gather information about the employer’s health and safety record. Under Sections 51 and 52, the employer is required to give the union written notification of all injuries, fatalities and occupational illnesses. The union is also entitled to request and receive an annual summary of occupational injury and illness data for that workplace from the Workplace Safety and Insurance Board (WSIB).

Sec. 12, Sub. 1, 2; Sec. 51, Sub. 1;

Sec. 52, Sub. 1, 2, 3

Can the workplace parties jointly request the Ministry of Labour, Immigration, Training and Skills Development to approve one joint committee to cover multiple worksites?

Section 9 (3.1) gives the Ministry of Labour, Immigration, Training and Skills Development the power to issue an order that permits an employer to establish one joint committee for more than one workplace. In this regard, it is important to note the following:
a single joint committee for multiple worksites is illegal unless ordered by the Minister under Section 9(3.1).
a submission must by made by the workplace parties w