Occupational Health & Safety Due Diligence in Ontario

1. Due Diligence & Ontario’s Occupational Health & Safety Act Presented by: Murray Hyatt, B.Sc. Paul A. Cyr, CRSP Ottawa Hospital, Ottawa, ON

2. The Occupational Health & Safety Act • Minimum Standard • Regulations made under the OHSA • Internal Responsibility System • Rights of Workers • Offenses and fines • The concept of Due Diligence

3. Regulations and Standards • Reg. 67/93-Health Care and Residential Facilities • Reg. 851-Industrial Establishments • Reg. 860-WHMIS • Reg. 833 Control of Exposure to Chemical and Biological Agents • Designated Substances Regulations (Mercury, ETO, Asbestos etc.)

4. Regulations and Standards, cont’d • X-ray Safety-Regulation 861 • Window Cleaning-Regulation 859 • Critical Injury defined-Regulation 834 • Others: • Workplace Safety and Insurance Act • Ontario Building Code, • Ontario Fire Code, • CSA standards, etc...

5. Internal Responsibility System • Principal that workplace hazards can be dealt with through communication and co-operation between employer and workers. • Workplace parties share the responsibility for occupational health and safety and must strive to identify hazards and develop strategies to protect workers • Multipartite Approach

6. Rights of Workers • Right to know • Right to participate • Right to refuse • Right to stop work

7. Duties and Responsibilities of Workplace Parties Under the OH&S Act

8. Section 25 - Duties of Employers • Equipment, materials and protective devices as prescribed are provided • Equipment, materials and protective devices are maintained in good condition • Measures and procedures prescribed are carried out in workplace • Equipment, materials and protective devices provided are used as prescribed • Appoint a competent person as a supervisor

9. Duties of Employers cont’d • Provide information, instruction and supervision to worker to protect safety of worker • Acquaint a worker or a person in authority over a worker with any workplace hazards • Afford assistance to JHSC • Prepare and review at least annually a written OH&S policy and develop a program to implement that policy

10. Duties of Employers cont’d • Take every precaution reasonable in the circumstances to protect the worker

11. Definition of Competent Person • Qualified because of knowledge, training, and experience to organize the work and its performance • Familiar with OH&S Act and Regulations • Has knowledge of any potential or actual danger to safety in the workplace

12. Section 27 - Duties of Supervisors • Ensure worker uses or wears the equipment and/or PPE required by employer • Advise worker of any potential or actual danger to worker’s safety • Ensure worker works in compliance with OH&S Act and Regulations • Provide a worker with written instructions • Take every precaution reasonable in the circumstances to protect the worker

13. Section 28 - Duties of Workers • Work in compliance with OH&S Act and Regulations • Use or wear equipment and/or PPE required by employer • Report any contravention of OH&S Act and Regulations • Report absence or defect in any equipment or protective device • Shall not engage in any horseplay, or rough and boisterous conduct

14. Section 9 - Powers of JHSC • Make recommendations about the safety of workplace • written response required within 21 days • Obtain information from the employer • Consulted about testing in the workplace • Annual workplace inspections • Review DSR Assessments and Control Programs

15. Section 23 - Constructors • Defined: means a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more then one employer. • Must ensure Act and Regs are abided by on the project • Ensure every employer and worker on project comply with Act and Regs. and that H&S of workers on project be protected • Ensure MOL is notified of projects as required • Take every precaution reasonable in the circumstances to protect the worker

16. Section 32 - Directors and Officers of Corporation • Shall take all reasonable care to ensure that the corporation complies with: • The Act and Regulations • Orders and requirements of inspectors and directors • Orders of the Minister

17. Section 43 - Right to Refuse • Restricted right for hospital workers • endangers the safety of another person • inherent or normal condition of employment

18. Refusal to Work • Worker may refuse if he or she has reason to believe that: • operation of equipment or device may endanger • physical condition of workplace may endanger • contravenes OH&S Act and/or Regulations

19. Work Refusal - Stage One • Worker promptly reports refusal to supervisor • Supervisor investigates forthwith • in presence of worker • Labour JHSC member • Worker remains in safe location until investigation complete

20. Work Refusal - Stage One • Refusal resolved, worker returns to work

21. Work Refusal - Stage Two • MOL notified • Pending results of investigation • worker to remain in a safe location • worker may be assigned other work • another worker may be assigned work; however, must be advised of refusal in the presence of Labour JHSC member

22. Work Refusal - Stage Three • MOL investigation and decision • Reprisals by employer prohibited

23. Bilateral Work Stoppage • Certified worker has reason to believe that dangerous circumstances exist • Dangerous circumstances • contravention of OH&S Act and/or Regulations • contravention poses a danger to workers • delay in controlling may seriously endanger workers • Restricted if work stoppage endangers safety of another person

24. Bilateral Work Stoppage cont’d • Prompt investigation by supervisor • Investigation by second certified worker who represents other workplace party • If both certified workers agree work stoppage may be ordered

25. Workplace AccidentsReporting Obligations

26. Injury places life in jeopardy Produces unconsciousness Results in substantial loss of blood Fracture of a leg or arm, but not a finger or toe Amputation of a leg, arm, hand or foot but not finger or toe Burn to a major portion of the body Loss of sight in an eye Critical Injuries

27. Reporting Critical Injuries/fatalities(Section 5, Reg 67/93) • MOL - immediate notification • MOL - written report within 48 hrs • WSIB-written within 3 days

28. Non-critical InjuriesLost-time/health Care/modified Duties • Must be reported to WSIB within 3 days of employer being notified • Notification to MOL within 4 days • Manager/supervisor to investigate accident and take steps to prevent recurrence

29. Section 66 - Offenses and Penalties • Every person who contravenes or fails to comply with the act or ministry orders is guilty of an offense . Upon conviction, fines up to $25,000 and up to 12 month jail term per offense. • Corporation: fines up to $500,000 per offense. Accused person (incl. Corp.) may be found liable for any act or neglect on the part of directors, managers, supervisors, officers etc., as if offense was committed by accused Strict liability

30. Section 54 - Enforcement • MOL inspectors can enter any workplace (except dwellings), anytime without warrant • Seize or make use of anything in the workplace so as to gather evidence • Question anyone, order any tests, take photos, take samples, etc., all at the expense of the employer • Issue orders ; in effect until hazard rectified • 50,000 site visits before year 2000

31. Due Diligence • As a legal defense -acquittal in either of two ways: • Proving that all reasonable care was taken to avoid the episode or, • Proving that one believed in a mistaken set of facts (ignorance of the law doesn’t count) that, if true, would render the prohibited act innocent. Being “willfully blind” will not save you, it will bury you

32. Establishing Due Diligence • Develop specific policies, practices and procedures for hazardous activities in the workplace • Provide adequate orientation and training to workers • Ensure that competent supervisory staff monitor hazardous work and communicate risks to workers • Audit the workplace for foreseeable health and safety risks and protect workers accordingly • Ensure compliance through rules and discipline • Never assume that the worker will know enough about the risks involved in any given task