There are certain words and phrases that have been consistently used by the media and other sources to describe the effect the COVID-19 pandemic has had on our lives – perhaps none used more often than ‘’unprecedented’’.
COVID-19 is undoubtedly a health crisis that has had a unique impact in Canada and the world. Given the extraordinary nature of COVID-19, it might be easy to forget that ordinary health and safety compliance requirements still apply and must be considered by employers.
It is crucial that employers bear in mind the duties and responsibilities expected of them by the Occupational Health and Safety Act (‘’the Acts’’) that is in place within their provinces and its related Regulations to protect workers from COVID-19. Employees should be reminded that everyone has a key part to play in workplace health and safety compliance and have legal responsibilities under the Acts.
Health and Safety Rights and Responsibilities
The Acts are concerned with the regulation of hazards in the workplace and how to limit or avoid worker exposure to such hazards.
Under the Acts, employers must make sure workers and supervisors are aware of any hazard that they might encounter in the workplace, including biological (COVID-19), chemical or physical agents. Employers must then take every precaution reasonable in the circumstances to protect a worker from workplace hazards/COVID-19.
Supervisors have a key role when complying with the Acts. Supervisors are responsible for making workers fully aware of the hazards in the workplace; ensuring that they are working safely, and responding to any of the hazards brought to their attention, including taking every precaution reasonable in the circumstances for the protection of a worker. It is vital to note that a supervisor does not need the title ‘’supervisor’’ to acquire these duties under the Acts, the test is whether a person has charge of a workplace or authority over a worker.
Employers and managers/supervisors should collaborate with each other to adopt reasonable prevention measures that make sense for the type of industry. Workers have a right under the Acts to take part in this process. Workers should be reminded that they have a responsibility to report hazards in the workplace; work safely and follow safe work practices; and vitally, when it comes to COVID-19, use required PPE and participate in health & safety programs.
The Acts provide workers with the right to refuse unsafe work and therefore it is pivotal that all reasonable prevention measures are adopted to reduce/prevent work refusals due to the danger of exposure to COVID-19.
Joint Health and Safety Committee/Health and Safety Representative Considerations
The Acts require workplaces to create a joint health and safety committee (JHSC) or appoint a Health and Safety Representative (HS Rep) depending on the number of employees in the workplace.
The JHSC/HS Rep has various responsibilities, including:
- identifying actual and potential hazards in the workplace
- obtaining information from the employer relating to health and safety in the workplace
- inspecting the workplace on a regular basis as required under the Acts
- being consulted about and having a member representing workers be present at the beginning of any health and safety-related testing in the workplace
- recommending health and safety improvements in the workplace
The JHSC/HS Rep should consider increasing the frequency of their workplace inspections during COVID-19 to ensure a workplace’s continued compliance with the Acts, especially as COVID-19 is constantly evolving. It will be helpful if the JHSC/HS Reps adopt a COVID-19 specific checklist of things to look out for/check during their inspections. JHSC/ HS Reps are an incredibly helpful resource to ensure health and safety compliance and workplaces should utilize them as effectively as possible during COVID-19.
Employers have a duty to ensure workers are protected from injury from hazardous substances. Employers must identify any hazardous substances that are used in the workplace and, amongst other things, train workers on the handling of the substance and the dangers of exposure to the substance. During COVID-19, as employers introduce new products to the workplace, such as the use of Lysol and other cleaning products, it is important that any hazards contained within such products are identified and action taken to protect workers against the hazard. Hazards should be identified by obtaining a copy of the product’s safety data sheet from the supplier/manufacturer. Employees should then complete an updated WHMIS training session which incorporates the new products being used in the workplace.
It is imperative that employers are aware that a provincial occupational health and safety inspector/officer/Director may enter a workplace, unannounced, to perform an audit to ensure that COVID-19 prevention measures have been reasonably adopted. As can be predicted, provincial health and safety agencies have directed much of their attention and resources to COVID-19. For example, in Ontario, by increasing the number of inspectors and seeking the assistance of other regulatory bodies with their inspections. In such instances, Ontario employers should be aware that inspectors from bodies such as the Technical Standards and Safety Authority (TSSA) may audit a workplace on behalf of the Ministry of Labour.
Should an inspector conclude that a workplace is failing to meet its duties under the applicable provincial health and safety act, they have the power to impose substantial fines or stop work orders.
If an employer is advised that a worker has tested positive for COVID-19 due to exposure at the workplace, or that a claim has been filed with a provincial workers’ compensation board, the employer is required to notify:
- Their provincial health and safety agency (i.e. in Ontario, notify the Ministry of Labour, Training and Skills Development (MOL) in writing within four days)
- The workplace JHSC or HS Rep
- A trade union (if applicable)
Keep Updated with Industry and Agency Guidance
On top of requirements under the Acts, provincial governments, in conjunction with public health and provincial health and safety agencies, have created guidance relating to a large list of specific industries intended to prepare workplaces to re-open during COVID-19. It is extremely important for employers to read their industry-specific guidance carefully when adopting prevention measures. Be mindful that although the guidance may not have the force of the law, provincial health and safety inspectors will no doubt be using their own guidance as their assessment criteria when judging workplace prevention measures during their inspections. Be sure to keep an eye out for updates coming from industry regulatory bodies and colleges too as they can be a helpful resource which break down the information in a way that is relevant to your industry.
Do Your Due Diligence
Employers must be seen to perform their due diligence when protecting their workers from COVID-19. Employers can go a long way towards fulfilling their compliance duties under the Acts by ensuring that action is being taken to reasonably address and/or improve the following areas:
- Knowledge of Legal Obligations
- Knowledge of Hazards
- Ongoing Action to Correct Hazards
- Written Health and Safety Policies & Procedures
- Orientation & Training
- Supervisory Monitoring
- Communication & Coordination
- Enforcement with Discipline
The above is by no means an exhaustive list of considerations when it comes to occupational health and safety compliance. Please contact the HRPAR team to discuss how we can work with you to design a health and safety program that will keep your organization legally compliant during COVID-19 and beyond.