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.

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