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MOL permits employer to have multi-workplace joint health and safety committee, union’s challenge dismissed

A union has lost a request to suspend a Ministry of Labour Director’s order allowing a school board to establish a multi-workplace joint health and safety committee.

The Ontario Occupational Health and Safety Act requires a joint health and safety committee at each workplace where twenty or more workers are regularly employed.  The default rule under the OHSA is that each workplace should have its own committee.  However, the Minister of Labour or his or her delegate has the power to make an Order permitting one joint health and safety committee to cover multiple workplaces.

The Peel District School Board received an Order from a Ministry of Labour Director permitting it to establish and maintain a multi-workplace joint health and safety committee according to certain “terms of reference”.

The Canadian Union of Public Employees challenged the MOL Director’s multi-workplace Order at the Ontario Labour Relations Board, and asked the OLRB to suspend that Order pending the outcome of the appeal.

The OLRB refused to suspend the Order, deciding that the OLRB “appears to have no jurisdiction to deal with anything but an inspector’s order”, not an Order of the Minister of Labour or an MOL Director.  As such, the OLRB had no authority to suspend the multi-workplace Order.

This decision shows that when one workplace party asks the Minister of Labour to permit a multi-workplace joint health and safety committee, the time for parties to make submissions is before the Minister (or MOL Director) makes his or her decision.  Effectively, there is no appeal to the OLRB.

Canadian Union of Public Employees v Peel District School Board, 2014 CanLII 38304 (ON LRB)

MOL permits employer to have multi-workplace joint health and safety committee, union’s challenge dismissed

Ontario employers to bear WSIB costs of injured agency employees

A new Ontario Bill will make employers liable for the WSIB costs of injured agency employees working for them.

Bill 18, which passed first reading on July 16, 2014, will amend the Workplace Safety and Insurance Act to attribute to an employer the WSIB accident costs of any temporary agency employee who is injured while working for them.

Previously, temporary agencies needed to bring a “transfer of costs” application to the Workplace Safety and Insurance Board to have the WSIB attribute the accident costs to the employer instead of the temporary agency.  Once Bill 18 passes (the coming-into-effect date is not yet known), that will no longer be necessary.

Most employers will already be conscientious about the safety of agency employees working for them.  Bill 18 adds an additional incentive.

Bill 18, which amends a number of other Ontario laws including the Occupational Health and Safety Act (see our post of July 22nd) may be accessed here.

Ontario employers to bear WSIB costs of injured agency employees

Ontario Bill to extend protection of OHSA to unpaid trainees

A new Ontario Bill will give unpaid trainees the protection of the Occupational Health and Safety Act.  The OHSA currently gives that protection to paid workers only.

The current definition of “worker” under the OHSA is “a person who performs work or supplies services for monetary compensation . . .”

Under Bill 18, the OHSA’s definition of “worker” will be expanded to include unpaid high school, college and university students in certain approved programs; as well as certain unpaid trainees receiving training for their own benefit and not for the benefit of the employer.  Bill 18 also allows the government to pass a regulation making other unpaid persons “workers” under the OHSA.

Practically, most employers will already apply their safety programs to unpaid trainees as if the OHSA already applied to them.  The main impact of the redefinition of “worker” will be that employers are now exposed to charges and fines if unpaid trainees – who, one suspects, have a higher than average risk of being injured – are in fact injured. This makes it all the more important that employers ensure that trainees receive all necessary safety training.

Bill 18 passed first reading on July 16, 2014.  Due to the Liberal majority, the Bill is expected to pass.  We do not yet know when the Bill will come into force.

Bill 18, which contains amendments to a number of other employment-related laws, may be accessed here.

Ontario Bill to extend protection of OHSA to unpaid trainees

Saskatchewan Introduces Ticketing System for Certain Workplace Safety Violations

As of July 1, 2014, Saskatchewan employers who violate certain occupational health and safety laws may be issued a Summary Offence Ticket, which carry fines ranging from $250 to $1,000, depending on the offence (plus victim surcharges).

According to the Saskatchewan Ministry of Labour Relations and Workplace Safety, these tickets are intended to avoid time-consuming and costly prosecutions, while serving as a deterrent to those who are non-compliant with occupational health and safety laws in Saskatchewan workplaces.

Two designated Occupational Health Officers will be issuing tickets for the 12 ticketable offences, which include failing to ensure that workers use personal protective equipment ($1,000); failing to ensure that workers use a fall protection system where a worker may fall three metres or more ($1,000); failing to submit a written progress report ($600); and failing to ensure that any opening or hole is covered and clearly marked or otherwise protected ($1,000).

It is likely that most tickets will be issued to employers, contractors, owners, self-employed persons and suppliers.  There is one offence that applies to workers: clear failure to use personal protective equipment that has been provided by the employer ($250). However, a worker will be ticketed only after the officer determines that the employer provided the worker with the correct PPE, adequately trained the worker on its use, and the worker disobeyed clear direction to use the PPE.

These safety tickets are like speeding tickets – they will typically be issued either on the spot or sent by mail after an officer has assessed the situation and facts on the ground.  Further, everyone who receives a ticket has the right to challenge it in court.

The government indicates that before issuing tickets, officers will assess the severity of the situation and will first try to use other tools, including Compliance Undertakings, Officer’s Reports, Notices of Contravention and Stop Work Orders.  Further, tickets will only be issued where all other avenues to ensure compliance with health and safety in the workplace have been exhausted or are ineffective.

The Saskatchewan Ministry of Labour Relations and Workplace Safety has prepared an overview of Summary Offence Ticketing.

Saskatchewan Introduces Ticketing System for Certain Workplace Safety Violations

Canada Day deadline: Less than One Month to Complete Safety Awareness Training

Employers have less than one month to ensure that their workers and supervisors complete the mandatory “basic occupational health and safety awareness training” by July 1, 2014.

This training is mandatory for all workers and supervisors whose workplace is covered by the Occupational Health and Safety Act, regardless of industry.

For many employers, the simplest way to comply is to have your workers and supervisors complete the Ministry of Labour’s free e-learning module, print the certificate of completion, and provide the certificate to you before July 1st.

Employers can also offer in-person training programs that are tailored to the specific requirements of their workplace, as long as the training meets the minimum content requirements set out in the regulation.  If employers are providing in-person training, it may be wise to have the presenter, throughout the presentation, refer employees to the corresponding material in the Ministry of Labour workbooks, in order to ensure that all of the required material is covered.

As mentioned in our February 25, 2014 article, a Ministry of Labour inspector has advised us that, immediately after July 1st, inspectors will likely issue a reminder to employers who have not conducted the training by the deadline.  Employers who continue to be non-compliant with the regulation will likely receive a compliance order, and in cases of ongoing failure, could be charged and fined.

If you require additional information on how to comply with this new regulation, see:

  • our February 25, 2014 article, which sets out “what you need to do” to comply with this new requirement;
  • our April 3, 2014 article, which provides various strategies for employers as to how to provide this training; and
  • our May 1, 2014 article, which discusses who has to take this training and how employers can continue to ensure that they are compliant with the training requirements after July 1, 2014.

We are available to assist employers with complying with this new obligation – by the Canada Day deadline.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or contact Adrian Miedema or Chelsea Rasmussen.

Canada Day deadline: Less than One Month to Complete Safety Awareness Training

Government OHSA advisors must be licenced paralegals, court decides

Employees of Ontario’s Office of the Worker Advisor and Officer of the Employer Advisor who provide legal services relating to the Occupational Health and Safety Act must be licensed paralegals, an Ontario judge has decided.

Since 2007, paralegals have been regulated by the Ontario Law Society Act.  A paralegal must not provide legal services unless licensed by the Law Society of Upper Canada, which regulates lawyers and paralegals in Ontario.

The Law Society went to court asking for a declaration that government employees who provide legal services relating to the OHSA must be licensed paralegals.  The issue arose when the Office of the Worker Advisor (which provides certain legal services to non-unionized workers) and Office of the Employer Advisor (which provides legal services to smaller employers) started advising on safety-related reprisals after 2011 amendments to the Occupational Health and Safety Act.  The amendments permitted the OWA to educate, advise and provide representation before the Ontario Labour Relations Board to union-unionized workers who experienced reprisals from employers under the OHSA.  The Law Society had granted an exemption to the OWA and OEA to provide legal services in relation to the Workplace Safety and Insurance Act but not the OHSA.

The OWA had posted two “Worker Representative” positions which required that the successful candidates hold a paralegal license from the Law Society.  The union, OPSEU, objected to that requirement and argued that the Worker Representatives need not be licensed paralegals, although they admitted that the OHSA services being provided by the Worker Representatives were “legal services” under the Law Society Act.  OPSEU, however, argued that the Law Society Act did not apply to the government and that the Workplace Safety and Insurance Act exemption applied.

The court disagreed, holding that the Law Society Act applied to the government, and that the Workplace Safety and Insurance Act exemption did not apply to OHSA advice.  That meant that the OWA and OEA employees who provided legal services on OHSA matters were required to be registered with the Law Society as paralegals.

In an age of increasing regulation of professional advisors, health and safety consultants who are not licensed paralegals should consider whether they are providing “legal services” and therefore need to obtain a paralegal license from the Law Society.

LSUC v. OPSEU et al., 2014 ONSC 270 (CanLII)

Government OHSA advisors must be licenced paralegals, court decides

Ontario announces new JHSC certification training standards, refresher requirements

The Ontario Ministry of Labour has announced that new “JHSC Certification Training Standards” will come into effect in early 2015.  In the meantime, the existing “Certification Standards for Joint Health and Safety Committees, May 1996″ remain in effect.

The new standards and certification requirements would include Part One training (general to all workplaces), which would have to be taken from an approved training provider; and Part Two training that would be sector-specific and would be formalized with approved training programs taken from approved training providers.

The Ministry also anticipates that the Chief Prevention Officer will establish new requirements that all certified members take refresher training within three years of certification to maintain certification status.  This would be a new requirement.

The Ministry of Labour’s announcement may be found here.

 

Ontario announces new JHSC certification training standards, refresher requirements

Bill Would Increase Fines, Prison Terms for Workers Compensation Offences in Manitoba

It’s not just courts that are increasing fines for safety offences.  The Manitoba government has proposed substantial increases to fines under the Manitoba Workers Compensation Act.

If Bill 65 is passed, the top fine under the Workers Compensation Act for workers would increase to $5,000 (from $1,500) and the top fine for employers would increase to $50,000 (from $7,500).  The maximum term of imprisonment for an offence would increase to six months (from three).

Offences under the Workers Compensation Act include knowingly making a false statement to the Workers Compensation Board and failing to report a workplace accident giving rise to a claim for workers’ compensation.

The fines under the Workers Compensation Act are separate from those under the Workplace Safety and Health Act, which provides for fines of up to $500,000 and a six-month prison term in cases of workplace accidents or other incidents involving violations of that Act.

Bill 65 would also establish a “prevention committee” of the board of directors of the Workers Compensation Board.  As well, it would require the Workers Compensation Board to undertake activities aimed at the prevention of workplace injury and illness.  In addition, the Bill would give the Workers Compensation Board authority to inspect workplaces and to require employers and others to produce documents in connection with timely and safe return to work and to determine compliance with the Act.

The Bill may be accessed here.

Bill Would Increase Fines, Prison Terms for Workers Compensation Offences in Manitoba

Two months until July 1 safety awareness training deadline: will you be compliant?

The July 1, 2014 deadline is quickly approaching.  Employers in Ontario have two months to ensure that their workers and supervisors complete “basic occupational health and safety awareness training” before the deadline.

Our February 25, 2014 article set out “what you need to do” to comply with this new requirement.  Our April 3, 2014 article set out various strategies for employers as to how to provide this training.

In this article, we will provide updates and address a number of questions that have recently arisen, including who has to take this training and how employers can continue to ensure that they are compliant with the requirements of this Regulation even after their current workforce is trained.

Ministry of Labour Guide to Requirements for Basic Awareness Training

The Ministry of Labour has now released “A Guide to OHSA Requirements for Basic Awareness Training”.  It is fairly brief and worth reading.

Are directors and officers of a company or charity required to take the supervisor training?

The issue of whether directors and officers of a company or charity are considered supervisors is dependent on the particular facts of the situation.  If a director or officer has the responsibilities of a supervisor under the Occupational Health and Safety Act in an Ontario workplace (i.e. the person has charge of a workplace or authority over a worker in Ontario), the Ministry of Labour will likely expect the director or officer to complete the supervisor safety awareness training.  “Authority over a worker” includes, among other things, the ability to promote and discipline workers, schedule work and grant leaves of absence.  If the director or officer is not a “supervisor” under the OHSA, he or she is not required to take the training.

Are volunteers with a charity or not-for-profit organization required to take the training?

Under the OHSA, a worker is defined in part as “a person who performs work or supplies services for monetary compensation”.  As a result, a volunteer is not considered a worker and does not have to take the safety awareness training.  We recommend, however, that if a volunteer is doing work that involves any safety risks, you require him or her to take the safety awareness training.

Must employers verify that temporary employees sent to them by temporary employment agencies have completed safety awareness training?

Yes.  Where a worker is employed by a temporary employment agency and sent to another company to perform temporary work assignments, the temporary employment agency and the company both have safety duties under the OHSA.  While the temporary employment agency is required to provide the training, the company at which the temporary employee is working is required to confirm that the employee has received the training.

Update your checklists and agreements now

Hiring checklists and offer letters:
Ontario employers should update their hiring checklists and offer letters now.  Hiring checklists should include a requirement that a new worker or supervisor provide to the employer proof of having received the safety awareness training.  Going forward, employment offer letters / employment contracts should include a condition that a worker or supervisor has completed or will complete the appropriate safety awareness training.

Contractor and temporary employment agency agreements:
Employers should also include, in their standard-form contractor or temporary employment agency agreements, a requirement that the contractor or temporary employment agency not send to the employer any workers who have not completed the training, and that the contractor or temporary employment agency provide proof that its workers have received the training.  Employers must ensure they have an up-to-date record of safety awareness training for all workers and supervisors who perform work for the employer (which includes workers and supervisors from contractors and temporary employment agencies) in order to demonstrate compliance in the event the Ministry of Labour inspects the workplace.

Keep in mind employees who may require accommodation

Some employees with disabilities, language or literacy issues may require accommodation in order to complete their safety awareness training.  These employees may need additional time, or for the material to be read aloud or clarified.  Some may benefit from the opportunity to ask questions in a one-on-one environment.

The Ministry of Labour currently offers the worker and supervisor workbooks, and accompanying employer guides, in English, French, Traditional Chinese, Simplified Chinese, Hindi, Punjabi, Portuguese, Spanish, and Urdu.  The Ministry of Labour’s e-learning modules are currently available in English and French; however, its website indicates that the e-learning modules will be available in the seven additional languages in Spring 2014.

Please let us know if you would like our assistance in complying with this Regulation, including with slides for face-to-face training and template “proof of completion” certificates for employers to use. 

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or contact Adrian Miedema or Chelsea Rasmussen.

Two months until July 1 safety awareness training deadline: will you be compliant?

Join us May 1st for Seminar / Webinar on Ontario’s New Safety Training Requirements (and Two Other Interesting Topics)

Please join us on May 1st for a complimentary seminar / webinar on the following topics:

July 1st Deadline Looming: How to Comply with Ontario’s New Safety Awareness Training Regulation
Adrian Miedema

Internal Fraud — Managing Termination and Asset Recovery Options
Mark Evans and Blair McCreadie

An Update on Ontario’s Workplace Violence and Workplace Harassment Law
Saba Zia

CHRP Accreditation
This program may be eligible for recertification points.

CPD Accreditation
This 1.5 hour program can be applied toward 9 of the 12 educational hours for Continuing Professional Development required annually by the Law Society of Upper Canada. Please note that these CPD hours are not accredited for the New Member Requirement.

Event Details

May 1, 2014
Registration & Breakfast
8:00 – 8:30 a.m. EDT
Seminar
8:30 – 10:00 a.m. EDT

Dentons Canada LLP, 77 King St West, North Building, 5th Floor, Toronto

Or by webinar

To RSVP:

RSVP to Carla Vasquez, Specialist, Marketing and Events at carla.vasquez@dentons.com.

Join us May 1st for Seminar / Webinar on Ontario’s New Safety Training Requirements (and Two Other Interesting Topics)

Ontario Proposes Increasing “Distracted Driving” Fines – and Adding Demerit Points

Ontario’s government has introduced a Bill that would result in harsher penalties for distracted driving.

The proposed amendments to the Highway Traffic Act would:

-Increase the fine range from $60 – $500 to $300 – $1,000, and

-Assign three demerit points upon conviction of a distracted driving offence.

Sections 78 of the Highway Traffic Act prohibits holding of “a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages”.  Since that provision was introduced in 2009, it has become widely recognized that distracted driving is a major road safety issue in Ontario.

Ontario employers should consider implementing a “distracted driving” policy if they have not done so already – particularly where employees regularly drive on business.

Ontario Bill 173 may be accessed here, and a government press release on the Bill may be accessed here.

Ontario Proposes Increasing “Distracted Driving” Fines – and Adding Demerit Points

Three months until July 1 training deadline: Update on Ontario’s new safety awareness training requirement

Ontario employers have less than three months left to ensure that their workers and supervisors get “basic occupational health and safety awareness training” before the July 1, 2014 deadline.

Our February 25, 2014 article set out “what you need to do” to comply with this new requirement.

We have been considering various strategies for our clients as to how to provide this training, and have been in touch with the Ministry of Labour. Here are some updates and additional insights for employers to consider.

Can you combine the worker and supervisor training into one joint in-person session?

There is substantial overlap between the required content of the worker and supervisor training sessions.

If your company will be delivering the training face-to-face not using the Ministry’s online e-module, and is considering combining the worker and supervisor training into one session for all employees, ensure that the session covers all of the required content in the Regulation – but also covers the material from the perspective of both workers and supervisors.

The new Regulation refers to a basic occupational health and safety awareness training program for workers and a basic occupational health and safety awareness training for supervisors. A Ministry of Labour inspector could argue that “for” means “from the perspective of” or “tailored to”. So if, for instance, in a joint session you present only the supervisor’s perspective on a particular safety topic, an inspector might say that you have not complied with the Regulation’s requirement to provide the training “for” workers.

Although the required content for the worker and supervisor training overlap to some extent, you can see from the safety awareness training materials prepared by the Ministry of Labour (see our February 25th article for hyperlinks to those materials) that the Ministry approaches these topics quite differently for workers and supervisors. When delivering the safety awareness training, it is important to ensure that for each topic, workers and supervisors understand the distinction between their respective roles and responsibilities, even if the topic itself – such as “duties and rights of workers under the Act” – is required content in both the worker and supervisor training.

If you are going to combine the worker and supervisor sessions into one joint session, the safest approach is to ensure that any combined training session satisfies all of the criteria in the Regulation while articulating the different perspectives, roles and responsibilities of workers and supervisors. This will likely make the joint session longer than worker-only or supervisor-only sessions would be, possibly defeating the benefit of combining the worker and supervisor sessions.

Must supervisors also take the worker training?

There is some legal debate, based on the wording of the Regulation, as to whether supervisors who complete the supervisor training before July 1st must also complete the worker training. The debate centres around when the Regulation “came into force”, since part of the Regulation came into force on November 14, 2013 and the rest will come into force on July 1, 2014. A Ministry of Labour representative has recently advised us that the Ministry’s position is that July 1, 2014 is the applicable date.

Based on the Ministry’s position, a supervisor will be exempt from completing the worker training if:

(a) the supervisor was performing work as a supervisor for the employer prior to July 1, 2014; and

(b) the supervisor completed a basic occupational health and safety awareness training program for supervisors that contains the required supervisor contents, before July 1, 2014.

As a result, employers should ensure that all supervisors take the supervisor training before July 1st, because if they do, it appears that the Ministry of Labour will not require them to also take the worker training.

What about supervisors outside Ontario who supervise workers in Ontario?

Where your company has a supervisor outside Ontario – for instance, in Calgary – who supervises a worker in Ontario, the safe approach would be to have the Calgary supervisor complete Ontario’s basic safety awareness training for supervisors. Although, except in very limited circumstances, the Ontario Occupational Health and Safety Act does not apply to supervisors or workers working outside Ontario, a Ministry of Labour inspector could take the position that the OHSA does require an Ontario employer to ensure that any person supervising Ontario workers take the training – even if the supervisor is not located in Ontario.

Revising your contractor agreement

Ontario employers are required to ensure that contractors – who are “workers” under the OHSA – working for the employer have taken the worker safety awareness training. We are suggesting that companies revise their template contractor agreement to include a clause in which the contractor confirms that he or she has completed the training and that he or she will provide proof.

E-learning modules need specific web browsers

If you plan to have your workers and supervisors complete the training through the Ministry of Labour’s online e-learning modules, ensure that your company’s computers have at least Internet Explorer 9 or Chrome 17, or they won’t be able to access the modules.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or e-mail us at adrian.miedema@dentons.com or chelsea.rasmussen@dentons.com.

 

Three months until July 1 training deadline: Update on Ontario’s new safety awareness training requirement

Failed to Register with WSIB? New “Voluntary Registration” Policy may Provide Mercy

Ontario’s Workplace Safety and Insurance Board has issued a new policy showing when the WSIB will punish – or show mercy to – employers that are required to register with the WSIB but have not done so.

The new policy took effect on February 1st, 2014.  Not all Ontario employers are required to register with the WSIB.

The policy provides that where an employer is legally-required to register with WSIB but has not done so, while remaining undiscovered by the WSIB, if the employer voluntarily contacts the WSIB and discloses the non-compliance, the WSIB may (note – not “will”) waive penalties, refrain from laying charges, and not require payment of retroactive WSIB premiums prior to the “effective date of registration” (which is considered to be the later of the date of the employer’s first hire or 12 months prior to the month in which the employer made voluntary disclosure to the WSIB).

The policy states that the WSIB will, however, not show mercy on employers who have been “identified” to the WSIB prior to the employer’s voluntary disclosure – whether by the WSIB’s own “proactive registration activities”, or by anonymous calls to the WSIB’s ominous-sounding “Action Line”.

The moral of the story is that employers that may be required to register with the WSIB and have not done so, should strongly consider contacting the WSIB voluntarily in order to obtain the benefit of the Voluntary Registration policy, and hopefully avoid significant retroactive premiums and penalties.

The Voluntary Registration Policy may be found here.

Failed to Register with WSIB? New “Voluntary Registration” Policy may Provide Mercy

July 1, 2014 Deadline to Comply with Ontario’s New Safety Awareness Training Requirements. Here is What you Need to Do

The clock is ticking.  All Ontario employers must provide their workers and supervisors with “basic occupational health and safety awareness training” by July 1st, 2014 or they will be in violation of a new regulation under the Occupational Health and Safety Act.  And employers’ in-house safety awareness training provided to workers in the past will likely not meet the new requirements.

This is an “if you do nothing, you will be in violation” regulation.

Who Must be Trained?

All workers and supervisors must be trained – even workers in jobs that are not considered hazardous. 

There are two types of safety awareness training: worker training and supervisor training, and the government dictates the contents of both.

What About Contractors?

The definition of “worker” under the Occupational Health and Safety Act can include contractors working for the employer.  Companies using contractors need to ensure that the contractors have received the safety awareness training.  Companies should consider revising their contractor agreement to include a clause requiring the contractor to ensure that all of the contractor’s employees who are supplied to the company have completed the safety awareness training.

Obligation is on Employer, not Employee

Every Ontario employer must ensure that their workers and supervisors complete the safety awareness training. The obligation is on the employer, not the employees.

What if the Employer Already Provided Safety Orientation?

If your company already provided safety awareness training to employees, you are not required to provide the new mandatory safety awareness program – as long as your training program includes all of the content required by the Ministry of Labour.  I expect that most employers will want to put all of their employees and supervisors through the new mandatory orientation, using the Ministry of Labour’s training materials, in order to avoid an argument down the road that the employer’s training program did not cover all of the required topics.  In particular, the new regulation requires that the worker and supervisor training cover “roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations”, but those roles have recently changed, so one expects that most employers will not have covered that topic properly – if at all – in their existing in-house safety awareness program.

Deadline for New Employees, Supervisors

The deadline for providing the safety awareness training to current employees is July 1, 2014.  But for new employees hired after July 1, 2014, the deadline is “as soon as practicable” after they start working. For supervisors appointed to a supervisory position after July 1, 2014, the deadline is one week after starting to perform work as a supervisor.

How can the Training be Provided?

The training can be provided using the Ministry of Labour’s online “e-learning” modules, or by face-to-face sessions (group or individual) with employees.

Workbooks and E-Learning Tool

The Ministry of Labour makes a number of resources available to employers:

  • “Worker Health and Safety Awareness in 4 Steps” (worker workbook, 24 pages) is available here
  • “An Employer Guide to Worker Health and Safety Awareness in 4 Steps” (2 pages) is available here
  • “Supervisor Health and Safety Awareness in 5 Steps” (supervisor workbook, 32 pages) is available here
  • “An Employer Guide to Supervisor Health and Safety Awareness in 5 Steps” (2 pages) is available here
  • The e-learning training module for workers (45-60 minutes) is available here
  • The e-learning training module for supervisors (45-60 minutes) is available here 

The e-learning training includes a few short videos, and a number of quiz questions.

Employers May use Own Equivalent Materials

Employers may opt to use their own training materials, instead of the MOL’s materials. However, the training program for workers must include instruction on the following topics:

  • the duties and rights of workers under OHSA;
  • the duties of employers and supervisors under OHSA;
  • common workplace hazards and occupational illnesses;
  • the role of joint health and safety committees (JHSCs) and of health and safety representatives under OHSA;
  • roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations; and
  • information and instruction requirements set out in the Workplace Hazardous Materials Information System (WHMIS) Regulation.

If employers use their own supervisor safety orientation program, the training program must include instruction on the following topics:

 

  • the duties and rights of workers under OHSA;
  • the duties of employers and supervisors under OHSA;
  • how to identify, assess and manage workplace hazards, the role of joint health and safety committees (JHSCs), and of health and safety representatives under OHSA;
  • roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations; and
  • sources of information on occupational health and safety.

How Much Time does the Training Take?

The Ministry of Labour says that the worker and supervisor e-learning modules each take 45 to 60 minutes to complete.

Face-to-face sessions held by the employer can take as long as the employer wishes, but must cover all of the required material.

How Long is the Training Valid?

The training is valid for the employee’s working career. However, employers have an ongoing obligation, irrespective of this new safety awareness training requirement, to ensure that employees are properly trained at all times to do their job.

Maintaining a Record of Training

Employers must maintain a record of the training that is completed by workers and supervisors.  If the training is completed using the MOL’s e-learning training module, an employee will receive a certificate that is valid for the remainder of his or her career.

The employer must keep proof of the training for up to six months after the worker or supervisor stops performing work for the employer.

Exemptions

In the following two situations, workers or supervisors will not be required to complete the new worker safety awareness training:

  1. If a worker or supervisor has previously completed a worker safety awareness training program with a current or former employer that includes the required topics for worker safety awareness training listed above, he or she does not have to take the training again if he or she can provide proof of the training.
  2. A supervisor will not have to complete the worker training if:
    (a) the supervisor was performing work as a supervisor for the employer “prior to the Regulation coming into force”; and
    (b) the supervisor completed a basic occupational health and safety awareness training program for supervisors that contains the required contents listed above, “prior to the Regulation coming into force”.

Unfortunately there has been some legal debate and confusion as to whether the date of the “Regulation coming into force”, for the purposes of the above exemption, is November 14, 2013 or July 1, 2014, since parts of the Regulation came into force on each of those dates. The Ministry of Labour has recently advised us that, in its view, the date is July 1, 2014. That appears to mean that where a supervisor was working as a supervisor with the employer prior to July 1, 2014, and completed the supervisor safety awareness training program prior to July 1, 2014, the Ministry of Labour inspectors will not also require that the supervisor complete the worker safety awareness training program. After July 1st, however, that exemption will not be available.

If a supervisor has previously completed a supervisor safety awareness training program with a current or former employer that satisfies the required topics for supervisor training listed above, he or she will not have to take the supervisor awareness training again if he or she can provide proof of the training.

What Should Employers Do?

All Ontario employers should put a plan in place for ensuring that all workers complete the worker training, and all supervisors complete the supervisor training, by July 1st.  For office workers, the online e-learning module may be best. For others, the employer should consider holding face-to-face group training sessions with employees.

Here are some steps employers could take to work towards completing the training:

  1. Make a list of workers (not just “employees”)
  2. Make a list of supervisors
  3. Determine whether each worker and supervisor already received equivalent worker or supervisor safety awareness training (likely not)
  4. Plan how training will be done (e-learning or face-to-face sessions)
  5. Print paper copies of MOL materials for face-to-face sessions (if training provided face-to-face)
  6. For face-to-face sessions, gather other suggested materials, such as employer safety policies and procedures (see Ministry of Labour’s employer guides, linked above)
  7. Plan when training will be done: regular work day or on employee’s own time?
  8. Schedule training
  9. Set deadline for completing: May 31?
  10. Develop tracking / reminder system
  11. Decide who will keep training records and where

Consequences of Missing the Deadline

A Ministry of Labour inspector recently told me that, immediately after July 1st, inspectors will likely issue a reminder to employers who have not conducted the training by the July 1st deadline.  However, employers who still fail to complete the training will likely receive a compliance order, and in cases of ongoing failure, could be charged and fined.

Non-Compliance may be “Red Flag” to MOL Inspector

Just like failing to post all of the required health and safety materials on your bulletin board (see our article on posting requirements here), a failure to ensure that your workers and supervisors received the safety awareness training by July 1st may be a “red flag” for inspectors that your company is not on top of its safety obligations. Keep a file with all of the completion certificates handy, so you can quickly show the MOL inspector that all employees have been trained.

This Seems Complicated. What is the Simplest Way to Comply?

For many employers, the simplest way to comply is to send all employees and supervisors an e-mail with a link to the MOL modules and require them to complete the e-learning module, print off the completion certificate, and provide the certificate to you before July 1st.

The new regulation, which sets out the mandatory safety awareness training requirement, can be accessed here.

July 1, 2014 Deadline to Comply with Ontario’s New Safety Awareness Training Requirements. Here is What you Need to Do

Changes to Alberta’s Occupational Health and Safety Legislation – Administrative Penalties and Tickets

Effective October 1, 2013, certain changes to Alberta’s occupational health and safety legislation came into force which allow an Occupational Health and Safety Officer to issue administrative penalties against any party regulated by the legislation (i.e. workers, contractors, employers, prime contractors and suppliers), for violating or failing to comply with the occupational health and safety legislation.

Administrative penalties can be up to $10,000 per violation per day. The amount of the administrative penalty in each case will be set by the Officer upon considering the seriousness of the contravention or failure to comply, the risk of harm resulting, and any other factors the Officer considers relevant. The person subject to the administrative penalty must be given at least 30 days to pay. Administrative penalties can be appealed to the Occupational Health and Safety Council. A person who pays an administrative penalty cannot be charged with an offense under the legislation with respect to the same contravention or non-compliance. The administrative penalty must be given within two years after the contravention or non-compliance. If unpaid, the administrative penalty can be enforced as a judgment.

In addition, as of January 1, 2014, further changes to the legislation will come into force which will enable Occupational Health and Safety Officers to issue tickets to workers and employers who are in contravention of certain listed provisions of the occupational health and safety legislation. The amount of the tickets will range from $100 to $500. These tickets will be essentially the same as traffic tickets – they are given on the spot upon a contravention of the law. A person receiving the ticket can plead not guilty and go to court.

This new system provides a middle ground in the enforcement spectrum which, until now, only allowed for either orders to comply or prosecutions through the courts. These new measures are intended to act as an additional tool to address non-compliance with the legislation.

Changes to Alberta’s Occupational Health and Safety Legislation – Administrative Penalties and Tickets

AODA’s Workplace Emergency Response Information Requirements Already in Force: Are you in Compliance?

Since January 1, 2012, Ontario employers have been obligated to provide “individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employee’s disability.”

The obligation is in section 27 of the Integrated Accessibility Standards regulation under the Accessibility for Ontarians with Disabilities Act, 2005 (often referred to as “AODA”).  Although other obligations under that regulation come into effect in 2014 and later, the emergency response information requirements in section 27 came into effect in 2012.

Section 27 also requires that if an employee who “receives individualized workplace emergency response information requires assistance”, then if the employee consents, the employer shall provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee.”

The section goes on to require that employers provide the emergency response information as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.

Lastly, section 27 requires that every employer review the individualized workplace emergency response information, “(a) when the employee moves to a different location in the organization; (b) when the employee’s overall accommodations needs or plans are reviewed; and (c) when the employer reviews its general emergency response policies.”

Employers – particularly those with workplaces which might be difficult to exit in the event of an emergency – should consider their obligations under section 27.

 

AODA’s Workplace Emergency Response Information Requirements Already in Force: Are you in Compliance?

“E-Learning” Safety Orientation Module Coming Soon in Ontario; Printed Copies of MOL Safety Orientation Materials Now Available

Worker safety orientation is expected to become mandatory in Ontario on January 1, 2014, as we have previously advised.  The Ontario Ministry of Labour is developing an e-learning module that workers and supervisors can take to complete the orientation, and has now made available printed copies of its worker safety orientation materials.

The worker materials are called “Worker Health and Safety Awareness in 4 Steps”, and an accompanying employer guide is available.  Printed copies can be ordered by going to www.publications.service ontario.ca and searching for “worker awareness”.

The MOL says that the supervisor materials, called “Supervisor Health and Safety Awareness in 5 Steps”, and the accompanying employer guide, will be available in printed form soon.

Also, the MOL says that the e-learning program will be available later this Spring.  According to the MOL, “learners will be able to access modules on the ministry’s website and print a certificate of completion once they complete the online awareness training.”  The e-learning module will, hopefully, make it relatively easier for employers to comply with their new obligation, as of January 1, 2014, to ensure that all workers and supervisors have received the mandatory safety orientation.  Workers and supervisors may simply go to the MOL website, take the orientation through the e-learning module, print the completion certificate, and give it to their employer.

For more information on the new mandatory training obligations, see our previous post here.

“E-Learning” Safety Orientation Module Coming Soon in Ontario; Printed Copies of MOL Safety Orientation Materials Now Available

No More Skillful Scheduling of Contractors: Clarification of When a Prime Contractor is Required

In November 2012, we posted a blog regarding Bill 6, The Protection and Compliance Statures Amendment Act, 2012, introduced to the Alberta legislature to amend three Acts, including the Occupational Health and Safety Act as part of an ongoing effort by the provincial government to hold employers (and those responsible for work sites) accountable for the health and safety of their business operations. Bill 6 received Royal Assent on December 10, 2012. As a result, one key amendment now in force is Section 3(1) of the Occupational Health and Safety Act, which deals with the prime contractor.

Prior to the amendment, the legislation was worded in a way which suggested that a prime contractor was only required if two or more employers were involved at the work site at the same time. Due to the wording, some site owners were able to bypass the prime contractor obligation by skillfully crafting a work schedule so that no more than one employer was present at a work site at the same time.

The amendment strikes out the words “at the same time” in an effort to clarify that a prime contractor is required for a work site whenever there are two or more employers whose work activities are interrelated and/or have a health or safety impact on each other, even though they may not be present at the work site together.

For more information see: http://humanservices.alberta.ca/documents/OHS-Act-Amended-LI031.pdf

 

No More Skillful Scheduling of Contractors: Clarification of When a Prime Contractor is Required

Employer Violated Workplace Violence Law: Ontario Arbitrator

An Ontario arbitrator has found that an employer violated Bill 168 which introduced workplace violence provisions into Ontario’s Occupational Health and Safety Act.

The Labourers’ International Union of North America, Local 506, referred a workplace violence grievance to the Ontario Labour Relations Board. For some reason, the employer did not file the necessary response form with the OLRB. As such, the OLRB proceeded to hear the grievance without the employer having filed any materials.

On the basis of the facts stated by the union, the OLRB found that a principal of the employer had assaulted, on a job site, a labourer employed by the employer, and that the principal later threatened another worker with physical violence and death.

The OLRB also found that the employer had failed to prepare, review and post workplace violence and harassment policies or programs, or to provide information and instruction to workers regarding workplace harassment, in violation of sections of the Occupational Health and Safety Act that were introduced in Bill 168.

The OLRB therefore directed the employer to “cease and desist from violating . . . the provisions of the Occupational Health and Safety Act.

While the union also asked the OLRB to award damages – including for mental distress – to the employees who were the victims of workplace violence, the OLRB said that it did not have sufficient evidence to do so, but the OLRB scheduled a date to deal with the assessment of damages.

Although the employer did not participate in this grievance hearing, the decision is a warning to employers that non-compliance with the Bill 168 workplace violence and harassment provisions is not just a technical breach, but may result in legal orders and damages.

Labourers’ International Union of North America, Local 506 v Pro-Cut Concrete Cutting Ltd, 2013 CanLII 1240 (ON LRB)

Employer Violated Workplace Violence Law: Ontario Arbitrator

January 1, 2014 Deadline for New Mandatory Safety AwarenessTraining, Ontario Government Proposes

Ontario employers will have until January 1, 2014 to ensure that all current workers and supervisors have received new mandatory safety awareness training, the Ontario government has proposed.

The government intends to file a regulation on or before July 1, 2013 making the training mandatory and imposing the January 1, 2014 deadline.

Mandatory for all Workplaces Covered by OHSA

The Ontario Ministry of Labour says, on its website, that the training will be mandatory for all workplaces currently covered by the Occupational Health and Safety Act, regardless of sector, including industrial establishments, construction projects, health care and residential facilities, mines and mining plants, and farming operations. The requirement even extends to office employees and others thought to be in low-safety-risk jobs.

New Employees

The regulation will also require that any new employees receive the worker training as soon as practicable after commencing work duties, and that new supervisors complete the supervisory safety awareness training within the first week of commencing supervisory duties.  New employees or supervisors who can prove that they received the safety awareness training at a previous employer will not be required to retake that training.

MOL’s Worker Training Materials

The MOL has finalized and released worker safety awareness training materials that employers can use.  The materials include a worker workbook, “Worker Health and Safety Awareness in 4 Steps“, and an employer guide to that workbook.  Employers who train workers using the MOL materials will automatically comply with the new mandatory safety awareness training requirement.  Note that the new requirement is for basic safety awareness training only; employers will, depending on the employee’s job, also be required to provide additional safety training, developed by the employer, tailored to the job.

MOL’s Supervisor Training Materials

The MOL’s supervisor safety awareness training materials have not yet been finalized.  A version of the supervisor training materials is being piloted, along with an employer guide to the supervisor training program.  The final version should be released shortly.

Required Content of Training

Employers who opt to use their own training materials instead of the MOL’s must, according to the MOL, ensure that the training covers, at a minimum, the following topics:

Worker Awareness Training

  • Rights and responsibilities of workers and supervisors under the OHSA
  • Roles of workplace parties, health and safety representatives, and joint health and safety committees
  • Roles of the Ministry of Labour, Workplace Safety and Insurance Board, and Health and safety partners
  • Hazard recognition
  • Right to be informed of hazards
  • Reference to an employer’s obligations to provide information and instruction to workers about controlled products as required under Regulation 860 (WHMIS) of the OHSA
  • Latency and illness related to occupational disease

Supervisor Awareness Training

  • Rights and responsibilities of workers and supervisors under the OHSA
  • Roles of workplace parties, health and safety representatives, and joint health and safety committees
  • Roles of the Ministry of Labour, Workplace Safety and Insurance Board, and health and safety partners
  • Recognition, assessment, control and evaluation of hazards
  • Where resources and assistance are available

Previous Training May Not Be Sufficient

Although many employers will have already provided safety awareness training to workers and supervisors, if that training did not include all of the above topics and was not “equivalent” to the training program developed by the MOL, then the training will not meet the new legal requirement.

Consequences of Missing Deadline

Employers who do not comply with the new training requirements by January 1, 2014 could be ordered by an MOL inspector to comply – meaning, they will have to scramble to complete the training in short order – or, in a worst-case scenario, they could be charged and fined.

What Should Employers Do

Ontario employers should, in the near future, do the following:

-review existing worker and supervisor training programs and consider whether they contain the content required under the new rules

-if there are training gaps – that is, if your current program is missing content required by the new MOL requirements – the employer must ensure that the gaps are filled by the end of 2013.  OHS legal counsel can assist in determining whether there are gaps

-decide how the training will be provided: in person, by webinar, etc.

-review your existing training documentation: are you able to prove that your employees have received the training that you have already done?

-consider how you will document that employees and supervisors have received the new mandatory training.  If the training is not properly documented, or you cannot adequately prove that a person received the training, the MOL could still lay orders or charges

The new requirement of safety awareness training is a sweeping requirement that all Ontario employers must be aware of.  MOL inspectors who visit an employer’s workplace in 2013 may ask whether the employer is making progress towards completing the training.  In 2014, inspectors will want to see proof that the training has been completed.

 

 

January 1, 2014 Deadline for New Mandatory Safety AwarenessTraining, Ontario Government Proposes