Health & Safety Case Law Review

From the changes made under the Occupational Health and Safety Act over the past couple of years, case law is now appearing.  A year and a half after the legislation was passed for Bill 168 - Violence and Harassment in Ontario - we are starting to see evidence in the courts.  In other provinces, precedence is being set as with the ruling for a health and safety representative in Nova Scotia.

In the Ontario case - Murphy verses Carpenters 2011 - an application was made under Section 50 of the Occupational Health and Safety Act in which the applicant Gary Murphy alleges that his former employer, The Carpenters District Council of Ontario dismissed him from his employment as a reprisal for raising complaints about his immediate supervisors conduct.  Despite the responding parties position that the applicant failed to make out a prima facie case of a breach of the act, it has been determined that this application puts reverse onus on the employer to provide proof that the employees dismissal did not occur as a result of the employee acting in compliance with OSHA or seeking its enforcement.  This case has been referred to the Registrar to list for hearing. 

It will be interesting to follow this case to its conclusion.  To read more about this case - http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii71880/2011canlii71880.html

In another reprisal case, the Ontario Labour Relations Board has made a ruling that it does not have jurisdiction to hear a complaint under the Occupational Health and Safety Act where an employee suffers reprisal for raising a harassment complaint with his or her employer; as a result of November 18th, 2011 decision in the Harper verses Ludlow Technical Products Canada Ltd.  This forces employees to deal with harassment under their internal corporate policies and not through OLRB.  This does not mean employees can't take their case to Human Rights.

To read more on this case:  
www.occupationalhealthandsafetylaw.com/bill-168-update-olrb-will-not-hear-harassment-reprisal-complaint-under-ohsa

In Nova Scotia a health and safety representative has been charged for failing to follow through with an employer on a report of asbestos found in the insulation of housing units that he presented to two supervisors employed with his employer.

The court found the safety representative guilty of failing to take reasonable precautions for the safety of persons at or near the workplace, including residents of the homes that contained the asbestos insulation.   This decision came about due to his job description that identified he was responsible for promoting a safe and healthy workplace. This case resulted in a conviction and a $1000.00 fine for the safety representative and 515 compliance orders.

For more information on this case go to:

www.occupationalhealthandsafetylaw.com/safety-co-ordinator-who-assumed-a-passive-role-convicted-under-ohs-act

Lynne Bard, BA (Honours), C.H.R.P., CES

Human Resources, Safety & Risk Management Experts

Taking the Complexity out of Compliance

President

Beyond Rewards Inc.

Phone: 519-821-7440

Cell: 519-830-7480

mail: lbard@beyondrewards.ca

Confined Spaces

Confined Space

July 14th, Canadian Press released the story of a 35 year old Niagara Region man who was trapped inside a machine in a warehouse and died. Although this is one of the most recent in Ontario, it is not the only one we have heard about across the province or the country for that matter.

CCOHS - outlines in great detail the Confined Space requirements in completing a Confined Space Hazard Assessment and development of a Control Program for your workplaces. This process is mandatory for any confined spaces you have in your workplace. Specific regulations apply to confined space programs dependent on your jurisdiction. Review these regulations before putting your confined space program in place.

Had the Niagara Region Employer had an effective confined space program in place would the accident have happened - we are unsure at this time, as all the details have not been released during the investigation process?

As of July 1, 2011 regulations under the OHSA for confided space in Ontario have changed. . The Ontario Ministry of Labour (MoL) has consolidated all legal requirements relating to work in confined spaces into a single regulation. Despite the numerous confined space accidents and hazards they face in the farming sector, agricultural workers will continue to be excluded from regulatory protection in Ontario. Review NIOSH regulations for farming and your local regulatory requirements per province.

There are many great training programs across the program. Go to your local Health and Safety Association, local Health and Safety Trainers and find out who has the best fit for your organizational needs.

AODA - Customer Service and Integrated Standard

AODA - What is it and why do we have to comply?

  

AODA = Accessibility for Ontarians with Disabilities Act.

AODA Customer Service and the Integrated Communications, Employment & Transportation Standards and the final proposed standard - The Built Standards are legislative requirements that all businesses with one or more employees must comply with over the coming years.  The Ontario Government would like Ontario to be 100% accessible by 2025. 

The government has provided timelines to meet the deadlines for each of the four standards that have passed through the legislature.  The Customer Service Standard - the first to be passed, must be complied with by January 1st, 2012 for private sector and non-profit organizations that have not already done so. 

Customer Service Standards

Under the Accessibility Standards for Customer Service, you must complete specific steps to make sure you are providing accessible customer service to people with various forms of disabilities (physically visible and non-visible disabilities). You must complete the 11 steps to compliance before January 1st, 2012.   

The AODA customer service standard applies to all organizations; both public and private sector that provide goods or services either directly to the public or to other organizations in Ontario (third parties) that have one or more employees in Ontario.

Your organization must comply by having completed the requirements under the legislation by January 1, 2012 including training of your employees, development of the required policies and procedures etc, or face the possibility of fines 

·         up to $50,000 for each and every day or part day that the legislated requirements have not been met; 

•  for a corporation, up to $100,000 for each and every day or part day that the legislative requirements have not been met.

Integrated Standards

The integrated standard consists of three standards under the AODA that have passed through the legislature – Ontario Regulation 191/11, composing of the Information and Communications Standard, Employment Standard and Transportation Standard.  The deadlines for compliance vary by size of organization, sector and specifics to each standard.

Within the Integrated Standard, not only do policies and procedures and program development need to be addressed but more specifically health and safety and emergency management need to be addressed throughout the integrated standards. 

Emergency Procedures, plans or Public Safety Information must be developed and made available to the public by January 1, 2012 – for Obligated organizations that prepare emergency procedures, plans or public safety information and make the information available to the public shall meet the requirements of this section by January 1, 2012 under the information and communications standard.

Workplace emergency response information is a requirement of every employer by January 1, 2012.  Employers must provide individualized workplace emergency response information to persons 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 individual plans must be reviewed as necessary as outlined in the Employment Standard.

Further, employers- other than small organizations shall develop and have in place a return to work process for its employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work as part of the Employment Standard. 

The Transportation Standard outlines specific emergency management procedures:

“In addition to any obligations that a conventional transportation service provider or a specialized transportation service provider has under section 13, conventional transportation service providers and specialized transportation service providers,

o   (a) shall establish, implement, maintain and document emergency preparedness and response policies that provide for the safety of persons with disabilities; and

o   (b) shall make those policies available to the public.”