Due Diligence & Ontario’s Occupational Health & Safety ActDue Diligence & Ontario’s Occupational Health & Safety Act

Presented by:

Murray Hyatt, B.Sc.

Paul A. Cyr, CRSP

Ottawa Hospital, Ottawa, ON

The Occupational Health & Safety ActThe Occupational Health & Safety Act

Minimum Standard

Regulations made under the OHSA

Internal Responsibility System

Rights of Workers

Offenses and fines

The concept of Due Diligence

Regulations and StandardsRegulations and Standards

Reg. 67/93-Health Care and Residential Facilities

Reg. 851-Industrial Establishments

Reg. 860-WHMIS

Reg. 833 Control of Exposure to Chemical and Biological Agent

Designated Substances Regulations (Mercury, ETO, Asbestos etc.)

Regulations and Standards, cont’dRegulations and Standards, cont’d

X-ray Safety-Regulation 861

Window Cleaning-Regulation 859

Critical Injury defined-Regulation 834

Others: – Workplace Safety and Insurance Act– Ontario Building Code, – Ontario Fire Code, – CSA standards, etc...

Internal Responsibility SystemInternal Responsibility System

Principal that workplace hazards can be dealt with through communication and co-operation between employer and workers.

Workplace parties share the responsibility for occupational health and safety and must strive to identify hazards and develop strategies to protect workers

Multipartite Approach

Rights of WorkersRights of Workers

Right to know

Right to participate

Right to refuse

Right to stop work

Duties and Responsibilities of Workplace Parties Under the OH&S Duties and Responsibilities of Workplace Parties Under the OH&S ActAct

Section 25 - Duties of EmployersSection 25 - Duties of Employers

Equipment, materials and protective devices as prescribed are provided

Equipment, materials and protective devices are maintained in good condition

Measures and procedures prescribed are carried out in workplace

Equipment, materials and protective devices provided are used as prescribed

Appoint a competent person as a supervisor

Duties of Employers cont’dDuties of Employers cont’d

Provide information, instruction and supervision to worker to protect safety of worker

Acquaint a worker or a person in authority over a worker with any workplace hazards

Afford assistance to JHSC Prepare and review at least annually a written OH&S policy and

develop a program to implement that policy Take every precaution reasonable in the circumstances to

protect the worker

Definition of Competent PersonDefinition of Competent Person

Qualified because of knowledge, training, and experience to organize the work and its performance

Familiar with OH&S Act and Regulations

Has knowledge of any potential or actual danger to safety in the workplace

Section 27 - Duties of SupervisorsSection 27 - Duties of Supervisors

Ensure worker uses or wears the equipment and/or PPE required by employer

Advise worker of any potential or actual danger to worker’s safety

Ensure worker works in compliance with OH&S Act and Regulations

Provide a worker with written instructions Take every precaution reasonable in the circumstances to

protect the worker

Section 28 - Duties of WorkersSection 28 - Duties of Workers

Work in compliance with OH&S Act and Regulations

Use or wear equipment and/or PPE required by employer

Report any contravention of OH&S Act and Regulations

Report absence or defect in any equipment or protective device

Shall not engage in any horseplay, or rough and boisterous conduct

Section 9 - Powers of JHSCSection 9 - Powers of JHSC

Make recommendations about the safety of workplace– written response required within 21 days

Obtain information from the employer

Consulted about testing in the workplace

Annual workplace inspections

Review DSR Assessments and Control Programs

Section 23 - ConstructorsSection 23 - Constructors

Defined: means 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 then one employer.

Must ensure Act and Regs are abided by on the project

Ensure every employer and worker on project comply with Act and Regs. and that H&S of workers on project be protected

Ensure MOL is notified of projects as required

Take every precaution reasonable in the circumstances to protect the worker

Section 32 - Directors and Officers of CorporationSection 32 - Directors and Officers of Corporation

Shall take all reasonable care to ensure that the corporation complies with:

– The Act and Regulations– Orders and requirements of inspectors and directors– Orders of the Minister

Section 43 - Right to RefuseSection 43 - Right to Refuse

Restricted right for hospital workers

– endangers the safety of another person– inherent or normal condition of employment

Refusal to Work Refusal to Work

Worker may refuse if he or she has reason to believe that:

– operation of equipment or device may endanger– physical condition of workplace may endanger– contravenes OH&S Act and/or Regulations

Work Refusal - Stage OneWork Refusal - Stage One

Worker promptly reports refusal to supervisor

Supervisor investigates forthwith– in presence of worker– Labour JHSC member

Worker remains in safe location until investigation complete

Refusal resolved, worker returns to work

Work Refusal - Stage TwoWork Refusal - Stage Two

MOL notified

Pending results of investigation– worker to remain in a safe location– worker may be assigned other work– another worker may be assigned work; however, must be

advised of refusal in the presence of Labour JHSC member

Work Refusal - Stage ThreeWork Refusal - Stage Three

MOL investigation and decision

Reprisals by employer prohibited

Bilateral Work StoppageBilateral Work Stoppage

Certified worker has reason to believe that dangerous circumstances exist

Dangerous circumstances– contravention of OH&S Act and/or Regulations– contravention poses a danger to workers– delay in controlling may seriously endanger workers

Restricted if work stoppage endangers safety of another person

Bilateral Work Stoppage cont’dBilateral Work Stoppage cont’d

Prompt investigation by supervisor

Investigation by second certified worker who represents other workplace party

If both certified workers agree work stoppage may be ordered

Workplace AccidentsWorkplace AccidentsReporting ObligationsReporting Obligations

Critical InjuriesCritical Injuries

Injury places life in jeopardy

Produces unconsciousness

Results in substantial loss of blood

Fracture of a leg or arm, but not a finger or toe

Amputation of a leg, arm, hand or foot but not finger or toe

Burn to a major portion of the body

Loss of sight in an eye

Reporting Critical Injuries/fatalitiesReporting Critical Injuries/fatalities(Section 5, Reg 67/93)(Section 5, Reg 67/93)

MOL - immediate notification

MOL - written report within 48 hrs

WSIB-written within 3 days

Non-critical InjuriesNon-critical InjuriesLost-time/health Care/modified DutiesLost-time/health Care/modified Duties

Must be reported to WSIB within 3 days of employer being notified

Notification to MOL within 4 days

Manager/supervisor to investigate accident and take steps to prevent recurrence

Section 66 - Offenses and PenaltiesSection 66 - Offenses and Penalties

Every person who contravenes or fails to comply with the act or ministry orders is guilty of an offense . Upon conviction, fines up to $25,000 and up to 12 month jail term per offense.

Corporation: fines up to $500,000 per offense.

Accused person (incl. Corp.) may be found liable for any act or neglect on the part of directors, managers, supervisors, officers etc., as if offense was committed by accused

Strict liability

Section 54 - EnforcementSection 54 - Enforcement

MOL inspectors can enter any workplace (except dwellings), anytime without warrant

Seize or make use of anything in the workplace so as to gather evidence

Question anyone, order any tests, take photos, take samples, etc., all at the expense of the employer

Issue orders ; in effect until hazard rectified

50,000 site visits before year 2000

Due DiligenceDue Diligence

As a legal defense -acquittal in either of two ways:

1. Proving that all reasonable care was taken to avoid the episode or,

2. Proving that one believed in a mistaken set of facts (ignorance of the law doesn’t count) that, if true, would render the prohibited act innocent.

Being “willfully blind” will not save you, it will bury you

Establishing Due DiligenceEstablishing Due Diligence

– Develop specific policies, practices and procedures for hazardous activities in the workplace

– Provide adequate orientation and training to workers

– Ensure that competent supervisory staff monitor hazardous work and communicate risks to workers

– Audit the workplace for foreseeable health and safety risks and protect workers accordingly

– Ensure compliance through rules and discipline