Today’s post is a joint effort between Cunningham Swan and Joe Watkins of J. Watkins & Associates Inc., a health & safety consulting firm that serves many municipalities.
The following will address questions and concerns regarding the applicability of the Occupational Health and Safety Act during the COVID-19 Pandemic.
What does the Occupational Health and Safety Act require during a Pandemic?
The key requirements of the Occupational Health and Safety Act (“OHSA”) in relation to the COVID-19 pandemic are:
The OHSA requires employers to take every precaution reasonable in the circumstances for the protection of a worker (section 25(2)(h)). What this means will depend on the work site but following the directives of public health authorities and any guidelines created by the Ministry of Labour (“MOL”) will be key. The most recent set of guidelines was released yesterday (April 30th), when the MOL posted 61 sector-specific COVID-19 workplace safety guidelines. These guidelines were produced by the four sector-focused Safe Workplace Associations that are designated as occupational health and safety training centres.
You can access the guidelines for your sector by clicking on the applicable Safe Workplace Association:
In consultation with your Joint Health and Safety Committee (“JHSC”) and the guidelines from the applicable Safe Workplace Association, develop a policy specific to COVID-19 precautions. In addition to the “reasonable precautions” requirement of the OHSA, there is a requirement for employers to “provide information, instruction, and supervision to a worker to protect the health or safety of the worker” (section 25(2)(a)). Ensure the policy is properly communicated and enforced in your workplace
2.Reporting of Occupational Illnesses:
The OHSA requires employers to report to
(i) the MOL;
(ii) the JHSC (or a health and safety representative); and
(iii) the union (if applicable) within 4 days of being advised:
- by or on behalf of a worker that the worker has an occupational illness; or
- that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board by or on behalf of the worker (section 52(2), (3))
The MOL has confirmed that if a worker contracts COVID-19 from exposure in the workplace, it is an occupational illness and therefore requires notification as outlined above. Whether the exposure resulted from the workplace or elsewhere will be the key issue and employers should consider the nature of the workplace and the contacts the worker may have had outside the workplace in assessing reporting requirements. It would be prudent to report where there is a suggestion that the worker may have contracted COVID-19 in the workplace.
You can expect the MOL will conduct an inspection, potentially by teleconference, upon a report of an occupational illness
An occupational illness is defined in the OHSA to mean a condition that results from exposure in a workplace to a physical, chemical, or biological agent. If a worker advises you that (s)he has symptoms or has tested positive for COVID-19, you should be able to identify where in the workplace that worker has worked and who may have been exposed in order to assess whether this is an occupational illness (with reporting requirements) and also whether steps need to be taken to protect the rest of your workers. Consider limiting the movements of your staff to only those work locations that are necessary for the performance of work functions so that post-symptom/diagnosis tracking of possible exposures is limited and more easily identifiable.
3.Reporting and Investigation of Critical Injuries/Fatalities:
The OHSA also requires employers to notify:
(i) the MOL;
(ii) the JHSC (or a health and safety representative); and
(iii) the union (if applicable) where a person (not necessarily a worker) is killed or critically injured “from any cause at a workplace” (section 51(1)).
Where there is a critical injury or fatality, an investigation of the circumstances leading to the critical injury or fatality must be performed and submitted to the MOL by the JHSC (section 9(31)).
The key question is: would a life threatening or fatal case of COVID-19 trigger these reporting and investigation requirements?
A critical injury is defined in the Regulations under OHSA to mean “an injury of a serious nature that” among other things “places life in jeopardy” or “produces unconsciousness”. Therefore, where COVID-19 is contracted at work and leads to such a condition, it could be deemed a critical injury with the resulting reporting/investigation requirements. Similarly, the fatality need not occur at work in order to trigger the reporting/investigation requirements. If the fatality results “from any cause at a workplace”, the reporting/investigation requirements are triggered.
During the SARS epidemic, major unions representing front-line health workers voiced their disapproval of the MOL’s failure to investigate reports of “critical injuries” arising from SARS that was contracted in the workplace. It remains to be seen how the MOL will respond to instances where persons contract COVID-19 in the workplace and develop life-threatening symptoms. The MOL has yet to issue a directive to clarify its position during this pandemic.
Even if the MOL does not consider a life-threatening case of COVID-19 contracted at work to be a “critical injury”, the reporting requirement to the MOL exists nonetheless pursuant to the occupational illness provisions of OHSA. Employers would be well served to ensure the circumstances leading to the exposure in the workplace are properly investigated and documented (even if the MOL does not ultimately require the report) to ensure any gaps in the workplace precautions are addressed and to prevent any further outbreak.
Under the OHSA, workers** have the right to refuse to work where they have reason to believe that the physical condition of the workplace is likely to endanger them (section 43(3)). There is a process for workers to follow when exercising their right to refuse work under OHSA which involves:
- the worker reporting the precise circumstances of the refusal to the employer/supervisor (what does the worker consider to be unsafe);
- investigation of the work refusal report by the employer in the presence of the worker, and a health and safety representative;
- a resolution of the work refusal report to the satisfaction of the worker and the employer.
If no resolution can be achieved to the satisfaction of either the employer or the worker, the MOL should be contacted. An Inspector will attend the workplace and either order that certain precautions be implemented to address the unsafe working condition or will deem the work refusal to not be justified under OHSA (thereby ostensibly requiring the worker to return to work). You should be able to demonstrate to a MOL Inspector what measures and procedures you have in place to address the safety concerns related to COVID-19.
*Some workers are specifically excluded from this right to refuse unsafe work, where the unsafe work is inherent in their job (such as those who work in hospitals or long-term care homes) or where the work refusal could endanger the safety of another person.
We are seeing many instances of employees refusing work based on a general fear of the virus rather than a specific unsafe working condition. Consider implementing a Work Refusal Form for workers to use when making an OHSA work refusal that requires the worker to specifically identify the unsafe working conditions and proposed resolution. The form should also provide the worker with instructions on the steps to be taken in order to make an OHSA work refusal.
The OHSA prohibits employers from disciplining or otherwise penalizing/intimidating a worker because the worker has acted in compliance with the OHSA or sought enforcement of the OHSA (section 50(1)).
Ensure supervisors are well informed of the prohibition on reprisals and, as always, exercise caution and proper procedures when implementing discipline. Consider having a COVID-19 point person among your supervisors/management who can oversee the health & safety program related to COVID-19, address any COVID-19 concerns raised by workers, and ensure workers do not suffer from reprisals from uninformed supervisors.
For more information and resourced on COVID-19, visit our resource page here.