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Posts tagged: health and safety

What does “failing to take every precaution reasonable in the circumstances for the protection of a worker” mean?

By , January 19, 2018 10:03 am

When the Ministry of Labour lays charges under the Occupational Health and Safety Act (“OHSA”) after a workplace injury it often includes a charge under section 25(2)(h) of OHSA which states that an employer is required to “take every precaution reasonable in the circumstances for the protection of a worker”.

A recent case, Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 interpreted this rather broad statutory obligation.

The Facts

Martin Vryenhoek died when he fell from a temporary welding platform. The platform was 6 feet and 6 inches tall, did not have guardrails, and no fall arrest equipment was utilized. The employer was charged under the OHSA for, among other things, “failing to take every precaution reasonable in the circumstances for the protection of a worker”. Under the applicable regulation, the installation of guardrails was not specifically required, and the worker was not specifically required to wear fall protection equipment because he was working at a height of less than three metres.

The Trial Decision

The trial justice acquitted the employer, concluding that the applicable regulation was a “complete and discrete code with respect to the requirements for protecting workers from falls in a case such as this.”

The Court of Appeal Decision

The Court of Appeal disagreed with the trial judge and stated that an employer’s duty under section 25(2)(h) to take every precaution reasonable in the circumstances does not depend on the existence of a specific regulation prescribing or proscribing particular conduct. Instead, this Court found an employer’s duty under 25(2)(h) is broader than what is contained in the prescribed regulations. The Court also concluded the trial judge failed to ask whether the installation of guardrails was a reasonable precaution necessary in the circumstances of the case. A new trial has been ordered.

Lessons to be Learned

  • An employer can comply with all of its obligations under the regulations under OHSA and be convicted.
  • The duty to take every precaution reasonable in the circumstances for the protection of a worker is broader than the specific obligations that are set out in OHSA and the accompanying regulations.
  • To be in a position to show it took every precaution reasonable in the circumstances an employer should implement a health & safety program which, among other things, identifies workplace hazards and potentially unsafe situations and implements training and instruction in relation to these hazards and unsafe situations. This can include daily toolbox meetings in some circumstances. For other measures that an employer can introduce, click here.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

How to Get Away with Drug and Alcohol Testing in the Workplace

By , May 5, 2016 9:00 am

The federal government has announced that there will be marijuana legislation in place by next spring, which should fulfill a campaign promise to legalize marijuana. Marijuana would no longer only be legal for medicinal purposes, but also recreationally. Federal Health Minister Jane Philpott has said that “[w]hile this plan challenges the status quo in many countries, we are convinced it is the best way to protect our youth while enhancing public safety.” So what does this mean for employers? Some may be concerned about employees being impaired by marijuana during working hours.

It seems to be a concern that is on the mind of the TTC as the TTC Board has approved a random alcohol and drug testing policy. This policy is opposed by the Union and we expect the Union will grieve this policy under the applicable collective agreement.

As an employer, if you are considering implementing a random alcohol and drug testing, you should know that except in exceptional circumstances such a policy is generally illegal in Canada. In order for a random testing policy to be acceptable, an employer must show:

  • It is a safety sensitive workplace;
  • There is evidence of a pervasive substance abuse problem which can be tied to the safety of the workplace;
  • Other measures to deter substance abuse have failed; and
  • Testing must assess current impairment

Accordingly, an employer has the burden of meeting a very high evidentiary threshold that is extremely difficult to do. The Courts have stated that the unless an employer can show that there is a pervasive drug problem affecting safety that random testing is generally too invasive and harmful to an employee’s privacy rights; the potential harm outweighs the potential good.

However, an employer can generally have a drug and alcohol policy that requires an employee to submit to drug and/or alcohol testing following a significant incident, accident, or near miss, where it is important to identify the root cause of what occurred. In addition, random drug and/or alcohol testing is generally permissible as part of an employee’s rehabilitation plan provided that it is for a specific duration – typically not longer than two years.

 Lessons for Employers

  1. If you have a safety sensitive work environment, you may want to have a drug and alcohol testing policy that allows for testing after a significant incident, accident, or near miss.
  2. Keep in mind that as employer, you have a duty to accommodate employees with substance abuse problems to the point of undue hardship.  If someone tests positive after an incident, accident or near miss, then you need to consider whether there is a substance abuse problem, which would be considered a disability under human rights legislation.
  3. It is unlikely that a random drug and alcohol testing policy will be permissible unless you can show a persistent drug problem in the workplace which can be tied to safety concerns in the workplace.

If you would like to speak to one of our lawyers about a current drug and alcohol policy or implementing such a policy, please contact us at [email protected] or 647-204-8107.

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Ontario’s Occupational Health and Safety Act (OHSA): Everything you wanted to know but were afraid to ask

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By , February 12, 2014 9:38 am

Mandatory health and safety awareness training is the latest obligation being imposed on Ontario employers under OHSA.

All employees must complete training by July 1, 2014. The Ministry of Labour will exempt employers who have already provided equivalent training to its employees. For more information on this new training requirement, click here.

Under Bill 168, a 2010 amendment to OHSA, employers were required to create workplace harassment policies and programs, as well as completing a workplace violence assessment.

It is difficult for an employer to keep up to date on its health and safety obligations. Certain policies and posters must be posted in the workplace. Certain policies have to be updated annually. Health and safety representatives must be elected from the organization’s workers.  The list goes on and on. For 7 things you should know about OHSA, click here.

If there is a “critical” injury an employer has certain reporting obligations to the Ministry of Labour.  When there has been a critical injury, the MOL often files charges against the employer for violating the OHSA. The courts will impose fines of up to $ 500 000 plus a 25% victim surcharge. Fines in connection with relatively minor injuries often exceed $ 50 000. For 5 things to keep in mind if there has been a workplace accident, click here.

If you have any questions about the Occupational Health & Safety Act, please contact our managing partner, Doug MacLeod, at 416 317-9894 or at [email protected]

 

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