Friday, February 15, 2013

What must an employer do in your workplace?

Part III: Duties of Employers and Other Persons

Disclaimer: This resource has been prepared to help the workplace parties understand some of their obligations under the Occupational Health and Safety Act (OHSA) and regulations. It is not legal advice. It is not intended to replace the OHSA or the regulations. FOR FURTHER INFORMATION PLEASE SEE FULL DISCLAIMER
The Occupational Health and Safety Act (OHSA) imposes duties on employers, constructors, supervisors, owners, suppliers, licensees, officers of a corporation and workers, among others. Part III of the Act specifies the general duties of these workplace parties.

General Duties of Employers

An Ontario employer, who is covered by the OHSA, has a range of legal obligations, including the obligation to:
  • instruct, inform and supervise workers to protect their health and safety [clause 25(2)(a)]
  • assist in a medical emergency by providing any information—including confidential business information—to a qualified medical practitioner and other prescribed persons for the purpose of diagnosis or treatment [clause 25(2)(b)]
  • appoint competent persons as supervisors [clause 25(2)(c)]. “Competent person” is a defined term under the Act. A “competent person” is defined as one who must:
    • be qualified—through knowledge, training and experience—to organize the work and its performance
    • be familiar with the Act and the regulations that apply to the work being performed in the workplace
    • know about any actual or potential danger to health and safety in the workplace

    An employer may appoint themselves as supervisors if they meet all three qualifications [subsection 25(3)].
  • inform a worker, or a person in authority over a worker, about any hazard in the work and train that worker in the handling, storage, use, disposal and transport of any equipment, substances, tools, material, etc. [clause 25(2)(d)]
  • help joint health and safety committees and health and safety representatives to carry out their functions [clause 25(2)(e)]
  • not employ or permit persons, who are under the prescribed age for the employer’s workplace to be in or near the workplace [clauses 25(2)(f) and (g)]
  • take every precaution reasonable in the circumstances for the protection of a worker [clause 25(2)(h)]
  • post in the workplace a copy of the OHSA, as well as explanatory material prepared by the Ministry of Labour that outlines the rights, responsibilities and duties of workers. This material must be in English and the majority language in the workplace [clause 25(2)(i)]
  • in workplaces in which more than five workers are regularly employed, prepare a written occupational health and safety policy, review that policy at least once a year and set up and maintain a program to implement it [clause 25(2)(j)]. For guidance on how to do this, see Appendix A of this Guide
  • post a copy of the occupational health and safety policy in the workplace, where workers will be most likely to see it [clause 25 (2)(k)]
  • provide the joint health and safety committee or the health and safety representative with the results of any occupational health and safety report that the employer has. If the report is in writing, the employer must also provide a copy of the parts of the report that relate to occupational health and safety [clause 25(2)(1)]
  • advise workers of the results of such a report. If the report is in writing, the employer must, on request, make available to workers copies of those portions that concern occupational health and safety [clause 25(2)(m)]
  • ensure that every part of the physical structure of the workplace complies with load requirements prescribed in the applicable Building Code provisions, any prescribed standards and sound engineering practice [clause 25(1)(e)]
  • prepare policies with respect to workplace violence and workplace harassment and review them at least once a year [subsection 32.0.1(1)]
  • regardless of how many workers they employ, develop programs supporting workplace harassment and workplace violence policies and include measures and procedures for workers to report incidents of workplace harassment and workplace violence, and set out how the employer will investigate and deal with incidents or complaints.
Note: the version of the Occupational Health and Safety Act on the e-Laws website is an official version of the Act per the Legislation Act, 2006.

Prescribed Duties of Employers

Please note that some employer duties make reference to prescribed requirements. For example, clause 25(1)( c) of the OHSA requires that employers carry out any measures and procedures that are prescribed for the workplace. “Prescribed” means specified in regulation. Where a regulation specifies measures and procedures for a specific type of workplace (e.g. an industrial establishment), the employer is required to carry out those measures and procedures.
A complete list of OHSA regulations can be viewed on the Ministry of Labour website.

Duties of Employers with respect to Workplace Violence and Workplace Harassment

Employers have specific duties regarding workplace violence and workplace harassment. Please see Part III.0.I of this Guide for more information.

Duties of Employers Concerning Toxic Substances

In workplaces where there are toxic or hazardous substances, the employer has many specific duties. These are described in detail in Part IV - Toxic Substances.

Duties of Supervisors

The Act sets out certain specific duties for workplace supervisors. A supervisor must:
  • ensure that a worker works in compliance with the Act and regulations [clause 27(1)(a)]
  • ensure that any equipment, protective device or clothing required by the employer is used or worn by the worker [clause 27(1)(b)]
  • advise a worker of any potential or actual health or safety dangers known by the supervisor [clause 27(2)(a)]
  • if prescribed, provide a worker with written instructions about the measures and procedures to be taken for the worker's protection [clause 27(2)(b)], and
  • take every precaution reasonable in the circumstances for the protection of workers [clause 27(2)(c)].

Who is a supervisor?

A supervisor is a person appointed by the employer who has charge of a workplace or authority over a worker [subsection 1 (1)].
Workers are often asked to act as supervisors in the absence of persons hired in that capacity, particularly those identified by such terms as senior, charge, or lead hands. Despite the term used, it is very important to understand that if a worker or lead hand has been given “charge of a workplace or authority over a worker” this person has met the definition of a supervisor within the meaning of the OHSA and assumes the legal responsibilities of a supervisor under the Act.

Who is a Competent Person?

A competent person is defined in the OHSA as someone who is qualified because of knowledge, training and experience to organize the work and its performance, is familiar with this Act and the regulations that apply to the work, and has knowledge of any potential or actual danger to health or safety in the workplace.
The OHSA requires that employers appoint a competent person as a supervisor [clause 25(2)(c)].

Duties of Constructors

Who is a constructor?

A constructor is defined in the OHSA as 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 than one employer. The constructor is generally the person who has overall control of a project.
See also the publication entitled: Constructor Guideline: Health and Safety which is also available on the MOL website.
Under the Act, the constructor’s duties include the following:
  • to ensure that the measures and procedures in the Act and regulations are carried out [clause 23(1)(a)]
  • to ensure that every employer and worker on the project complies with the Act and regulations [clause 23(1)(b)], and
  • to ensure that the health and safety of workers on the project is protected [clause 23(1)(c)].
Where required in regulation, a constructor must give written notice to a Director at the Ministry of Labour, containing prescribed information, before work begins on a project [subsection 23(2)]. The Regulation for Construction Projects (O. Reg. 213/91) made under the Act specifies the projects in respect of which notice shall be provided and the content of the notice.

Teranorth Construction Engineering Limited Fined $115,000 After Worker Killed

Ministry of Labour

Thunder Bay, ON - Teranorth Construction & Engineering Limited, a Sudbury constructor, was fined $115,000 for a violation of the Occupational Health and Safety Act after a worker was killed.

On June 24, 2011, the company was constructing new eastbound and westbound bridge decks on Highway 11/17 at the Mackenzie River in the Municipality of Shuniah. Precast concrete bridge spans were already installed and workers were pouring liquid grout into the joints. A worker was on an elevated work platform beneath the bridge decks sealing leaks caused by liquid grout seeping through the concrete spans. The elevated work platform was on a sloped surface when it overturned, fatally injuring the worker.

Teranorth Construction & Engineering Limited pled guilty to failing to ensure that the elevated work platform was used only on a firm, level surface.

The fine was imposed by Justice Dianne P. Baig. In addition to the fine, the court imposed a 25-per-cent victim fine surcharge, as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

Court Information at a Glance

Location:                    Ontario Court of Justice
                                    1805 Arthur St.
                                    Thunder Bay, ON

Judge:                         Justice Dianne P. Baig

Date of Sentencing:     January 21, 2013

Defendant:                   Teranorth Construction & Engineering Limited

Matter:                         Occupational Health and Safety

Conviction:                  Ontario Regulation 213, Section 148(b)

Crown Counsel:           Shantanu Roy

Monday, February 4, 2013

New Ontario Requirement as of January 1, 2014: Provide Safety Awareness Training Using Ministry's Materials or Equivalent

New Ontario Requirement as of January 1, 2014: Provide Safety Awareness Training Using Ministry's Materials or Equivalent

By Adrian Miedema, partner, and Saba Zia, associate. © Fraser Milner Casgrain LLP, Toronto,

Ontario's new mandatory safety awareness requirement is set to come into effect on January 1, 2014. This is a "do nothing and you will be in violation" obligation; employers who fail to take the active step of ensuring that all new and current workers receive the safety awareness training — using the Ministry of Labour's new materials or equivalent — will be in violation and will be subject to compliance orders, charges, and fines.

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

Mandatory for all Workplaces Covered by OHSA
At this point, it appears that almost all Ontario workplaces will be affected. 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 ("OHSA"), regardless of sector, including industrial establishments, construction projects, health care and residential facilities, mines and mining plants, and farming operations. Even employees in jobs that are thought to have a low safety risk — such as many office jobs — must be given the safety orientation.

New Employees
The regulation will also require that any new employees receive the worker safety 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.

Ministry's Worker Training Materials
The Ministry 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 Ministry 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.

Ministry's Supervisor Training Materials
The Ministry'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 Ministry's must, according to the Ministry, 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 Ministry, then the training will not meet the new legal requirement.

What if you Miss the Deadline?
Employers who fail to ensure that all employees receive the safety awareness training before January 1, 2014 could be ordered by a Ministry 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 safety awareness and orientation programs and consider whether they contain the content required by the Ministry's "Worker Health and Safety Awareness in 4 Steps" and "Supervisor Health and Safety Awareness in 5 Steps".
  • If there are training gaps — that is, if your company's current program is missing content required by the new Ministry requirements — the company must ensure that the gaps are filled by the end of 2013. Occupational health and safety legal counsel can assist in determining whether there are gaps.
  • Decide how the training will be provided: in person, by webinar, etc. The Ministry says that it intends to make an e-learning program available, at no charge, for employers to use.
  • Review your existing training documentation: are you able to prove that your employees have received the safety awareness or orientation 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 Ministry 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. Ministry 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.

February 4, 2013

Sunday, February 3, 2013

Employers are Consumers: Learn how to Fight Back and Office Politics: the game everyone plays

By Franke James, author, Dear Office-Politics

When Ellen Roseman, author and consumer-advocate columnist for The Toronto Star, invited me to contribute to her new book, Fight Back, I was delighted. As you’ll read in my excerpted article below, Ellen was an instrumental pair of “eyes” in helping me fight back — and win!  FIGHT BACK 

I WAS FIGHTING A COMPANY over the faulty installation of a gas furnace and ductwork, which had caused major structural damage to our home. I wanted them to pay for repairs. The company had deep pockets and no fear of going to court. Its lawyer said in a surly email, “Go ahead. Sue us.”

Going to court could have amounted to financial suicide for our family, or at the very least, hardship. There was no way I wanted to fight this battle in court, or even in an arbitration hearing.

I wanted to fight it where the odds were more in my favour: the court of public opinion. And for most people that’s a good strategy. It’s a lot cheaper than hiring lawyers but it does depend on having good communication skills.

In my experience most companies will do the right thing – but only under threat of having their behavior (which often amounts to bullying) exposed to the world. Everyone – from private enterprises, to public companies, to local and federal governments, is sensitive to public opinion.

Excerpted from Fight Back: 81 Ways to Save Money and Protect Yourselffrom Corporate Trickery. Copyright (c) 2012 by Ellen Roseman. Excerpted with permission of the publisher John Wiley & Sons Canada, Ltd.

About Franke James:

Franke James, MFA is the author/inventor of Dear Office-Politics: the game everyone plays and the Founder of Franke is also the author/artist of Bothered by My Green ConscienceFranke brings over 20 years of real-world business experience to her role as an adviser on See her 2012 quiz for CNN’s Global Office show. Franke has been quoted and featured in print, radio and TV on the topic of office-politics by the New York Times, Chatelaine Magazine, Inc. Magazine,  the Globe and Mail, Job Postings Magazine, CBC Radio, CTV News and other media.  (Follow her on Twitter @officepolitics and @frankejames) 

About Ellen Roseman and ‘Fight Back’:

Ellen Roseman is a journalist who sticks up for ordinary Canadians. As a long-time advocate for consumer rights, she’s become a brand name for activism and a champion at helping consumers fight back against injustices. Her columns appear three times a week in the Toronto Star and her popular blog,, has been online since 2007. She’s the author of seven books, including Money 101: Every Canadian’s Guide to Personal Finance and Money 201: More Personal Finance Advice for Every Canadian. She teaches investing and personal finance at the University of Toronto’s continuing studies department and Ryerson University’s Chang School, and is on the board of FAIR (Canadian Foundation for Advancement of Investor Rights) and Community Legal Education Ontario (CLEO).

In Fight Back, Ellen Roseman distills the financial advice she gives in her columns and blogs into 81 quick tips that all Canadians can use to help them spend sensibly, save money, and avoid costly consumer traps. This book of “personal finance greatest hits” is filled with illustrative examples and cautionary advice from Roseman and stories from her faithful readers. Filled with a wealth of information, the book includes the low-down on dealing with banks and car dealers, cutting costs of communication services, improving your credit, buying and renovating a home, fighting online fraud, ensuring you have the right insurance, and more.

Ellen Roseman has assisted HRNC to fight back!