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Natural Disasters in the Workplace – What Do I Do?

Did you know that the Ontario Ministry of Labour has a Q&A on how to deal with natural disasters in the workplace?

The Q&A, which can be found at the link listed below, covers issues such as whether or not an employee can be forced to take vacation days in the event of a natural disaster which prohibits him or her from working, or whether an employee must be paid if he or she is told to not come to work during the disaster.

Apart from basic issues covered in the Q&A, there are a number of other things to be aware of in the event of a natural disaster.  The Emergency Management Statute Law Amendment Act, 2006 (Ontario) permits the Premier and Cabinet to introduce legislation intended to govern emergencies such as natural disasters.  In addition, the Employment Standards Act, 2000 (Ontario)  provides for unpaid emergency leave for declared emergencies such as natural disasters, which is different than the standard emergency leave to deal with an ill or injured family member.

While an employer may not wish its employees to come to work in the event of a natural disaster, there may also be situations where certain employees are in fact required to work precisely because of the natural disaster, even if the workplace is under quarantine.  The ESA specifically permits certain employees to work in those situations, if their skills are required due to an emergency.  Likewise, although employees may rely on the Occupational Health & Safety Act (Ontario) (“OHSA”) to refuse to work if they are concerned that the condition of their workplace may jeopardize their health or safety, exemptions to OHSA require certain essential employees to work notwithstanding those conditions.

In addition to the above, there are a number of other pieces of provincial and federal legislation which work together to answer some of the key questions about how to deal with a natural disaster in the workplace.  Whether that disaster relates to health issues (eg. SARS, H1N1), loss of the workplace premises or something else, this combined legislation will help employers determine the appropriate response to disasters, and it is recommended that employers be proactive about understanding their obligations so that they are prepared in the event that disaster strikes.

To access the Ministry of Labour’s Q&A, click here.  For more information about all of the workplace issues involved in the event of a natural disaster, a more thorough discussion can be found here.

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Natural Disasters in the Workplace – What Do I Do?

Obligation to Post Ontario’s New Safety Poster

On October 1, 2012, Ontario Ministry of Labour inspectors began enforcing employers’ legal obligation to post the MOL’s new safety poster.

The poster, which is available in 17 languages, is called “Health and Safety at Work – Prevention Starts Here”. It may be downloaded and printed from the MOL’s website (click here). 

Section 25(1)(i) of the Occupational Health and Safety Act requires employers to “post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers”.  The MOL states that the poster is such “explanatory material prepared by the Ministry”, and therefore it must be posted.

On its website, the MOL says, “The poster summarizes workers’ health and safety rights and responsibilities and the responsibilities of employers and supervisors. It also reminds employers that they must not take action against workers for following the act or for raising workplace health and safety concerns, and seeking enforcement of the OHSA. The poster encourages workers to get involved in health and safety and explains when and why to contact the Ministry of Labour.”

The poster also sets out a toll-free number for employees to call the MOL.

Ontario employers should ensure that the poster has been posted in their workplace.  Inspectors will look for it when they arrive at workplaces.  By posting the poster, employers send a signal to MOL inspectors that they are on keeping on top of health and safety law developments.

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Obligation to Post Ontario’s New Safety Poster

Get your jab! – British Columbia Government Imposes Flu Vaccination Requirement for Health Workers

This article originally appeared on occupationalhealthandsafetylaw.com.

In hopes of driving up immunization rates among BC health care workers, the Government of British Columbia is imposing strict flu-season requirements on workers who come into contact with patients at publicly-funded health care facilities or in the community. Starting with the upcoming flu season, applicable health care workers (including health-authority staff, physicians and residents, volunteers, students, contractors and vendors) will be required to either obtain a seasonal influenza vaccine or to generally don a mask at all times during the flu season.

B.C. Provincial Health Officer Dr. Perry Kendall, who recommended these measures to the Provincial Government, wrote that less than 50 percent of health care workers are immunized against influenza each year, despite being in contact with high risk populations such as seniors, pregnant women, young children, and the immuno-compromised. Citing evidence from long-term care facilities that health care worker vaccinations results in diminished illness and fewer deaths each flu season, the physician argued that “[g]etting the flu shot should be considered standard patient safety practice for all health-care workers who come into contact with patients – as important as following effective hand hygiene practices, staying home when ill or wearing a mask in the operating room.” British Columbia will be the first jurisdiction in Canada to implement such a policy.

According to media outlets, the unions representing health care workers are generally supportive of vaccinations, although the British Columbia Nurses Union has said it will not yet formally respond to the directive and has rather referred to its October 2011 Press Release on the issue where it stated that vaccinations should be promoted through education, rather than through a punitive approach by the employer.

A Government of British Columbia “Backgrounder”, cites influenza as causing the most deaths among vaccine-preventable diseases.

According to Dr. Kendall, in U.S. jurisdictions where similar requirements have been imposed, health care worker immunizations levels have reached approximately 95 percent.

The Government’s Press Release, Dr. Kendall’s Opinion Editorial and the BCNU Press Release on Influenza vaccinations can be accessed at:

http://www.gov.bc.ca/health/

http://www.newsroom.gov.bc.ca/ministries/health/factsheets/opinion-editorial-flu-shots-save-lives-protect-patients.html

https://www.bcnu.org/News/news.aspx?page=Bulletins_Oct 21, 2011

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Get your jab! – British Columbia Government Imposes Flu Vaccination Requirement for Health Workers

Reviewing Ontario’s Workplace Violence and Harassment Law

In this article, Andy Pushalik reviews employer’s duties as they relate to workplace violence and harassment in Ontario.

On June 15, 2010, Ontario’s Workplace Violence and Harassment law came into effect. With this implementation deadline looming, employers rushed to take the necessary steps to ensure their compliance.

Reprinted by permission of Carswell, a division of Thomson Reuters Canada Limited.

To read the full article as published in Legal Alert, Vol. 31, No. 2, May 2012, click here.

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Reviewing Ontario’s Workplace Violence and Harassment Law

“The Next Element to Attack is Fire”: Employee Properly Dismissed for Threatening / Intimidating Statement

This article originally appeared on www.occupationalhealthandsafetylaw.com.

An Ontario arbitrator has upheld the discharge of a “modern day prophet” who stated, “the first element to attack is water – the next is fire” after being told that she was suspended for five days.

The employer had issued the five-day suspension to the employee for carelessly packing defective product.  The employee asked to speak with the plant manager, and then made the water-fire statement.  Her statement had particular poignancy because of a serious flood at the facility approximately one year earlier.

The employer discharged the employee.  The union grieved.  At the arbitration hearing, the employee testified that “there was too much wickedness in the plant” and that the manager’s disciplinary decisions had been wicked and unreasonable.  She stated that she was a religious person and that she believed that bad things happen to wicked people.  She also said that she had no intention of starting any fires and did not intend any threat.  She refused to apologize.

Arbitrator Norman Jesin referred to Bill 168 which added workplace violence provisions to the Ontario Occupational Health and Safety Act.  He decided that the employer had just cause to discharge the employee.  Even if the water-fire statement was not a threat, it was made in a loud and aggressive manner and was an attempt to intimidate the plant manager into reconsidering the five-day suspension.  The arbitrator stated that, “The grievor would have me believe that she is a modern day prophet simply issuing a warning for the benefit” of the plant manager. “But I have no doubt that the comments were designed to scare [the manager] into rescinding the suspension.”

In light of the employee’s disciplinary record (a previous one-day and three-day suspension), and particularly in light of the employee’s failure to show any remorse, the arbitrator upheld the termination.

This decision is part of what appears to be a trend towards arbitrators taking a hard line on threats of violence (see a previous blog post on this issue here).

U.S.W. v. Plastipak Industries Inc., 2012 CarswellOnt 7659 (Ontario Arbitrator)

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“The Next Element to Attack is Fire”: Employee Properly Dismissed for Threatening / Intimidating Statement

Termination For Cause: Another Case of “Employer Beware”

A termination for good business reasons does not always equate to a termination for just cause.  In the recent decision of the Ontario Superior Court in Barton v. Rona Ontario Inc., Mr. Justice Lauwers stated that even if an employee’s serious misconduct was such that the employer concluded that it needed to dismiss him to make an example of him, the misconduct might not necessarily be sufficient to warrant a termination without notice.

The Facts:

Barton was employed by the defendant for over 10 years and at the time of termination he was an assistant store manager.  Under his watch, an order picker truck was used to lift a wheelchair-bound employee from the ground floor to a second floor training centre and back again, for computer training (due to the fact that the only training office in the store was on the second floor and not otherwise accessible to wheelchairs).  This incident was contrary to the defendant’s safety expectations as set out in the Employee Handbook, the Health and Safety National Manual and the Occupational Health and Safety Act.  While Barton indicated his discomfort with the planned incident to both the operator of the order picker truck and the disabled employee, he was aware that the disabled employee wanted to attend the training and he did nothing to stop the employees from proceeding with their plan.  The incident turned out to be even more dangerous than might otherwise have been the case, as the wheelchair was not secured to the skid during the descent to the ground floor, and as the area around the order picker truck was not secured and someone walked under it during the lift. Fortunately for all, nobody was hurt during the incident.

Several employees were disciplined due to their part in the incident, but Barton’s employment was terminated for cause due to the fact that he was held to a higher standard than the non-managerial employees.

The Decision:

Mr. Justice Lauwers referenced Mr. Justice Echlin’s statement that just cause is “the capital punishment of employment law”.  He also referenced the contextual approach set out in the leading case of McKinley v. B.C. Tel and stated that although Barton’s misconduct was serious, his performance appraisals were good, he had no disciplinary record and he did not give permission for the lift or descent (although neither did he stop them).  By applying the principle of proportionality set out in McKinley, he found that Barton’s actions were not sufficient to warrant a with-cause termination.  He found that while there may have been good business reasons for Rona to terminate Barton’s employment and make an example of him in order to ensure that this sort of incident did not happen again, those reasons were not sufficient to elevate the termination to one without notice.  As a result, Barton was awarded 10 months of damages due to wrongful dismissal.

Barton v. Rona Ontario Inc., http://canlii.ca/t/fs8n7

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Termination For Cause: Another Case of “Employer Beware”

Ontario Announces Summer Safety Inspection Blitz Of Crane Safety And Surface Mines And Quarries

The Ontario Ministry of Labour recently announced a summer safety inspection blitz targeting construction sites with mobile and tower cranes, as well as surface mines and quarries, as part of its Safe at Work Ontario enforcement strategy.

With respect to the inspection blitz of construction sites, the Ministry of Labour has announced that its inspectors will be particularly focused on ensuring that: (i) cranes have adequate access and fall arrest equipment, (ii) the crane operator is maintaining minimum required distances from energized power lines, (iii) crane operator log books and manuals are being properly kept and maintained; (iv) crane operators are appropriately certified, and (v) there are no issues with the structural, mechanical or foundational integrity of the mobile or tower cranes or their safety systems.

With respect to surface mines and quarries, the Ministry of Labour has indicated its intention to target pits and quarries that have not been previously inspected, or where compliance issues have been previously identified. As part of the safety blitz, MOL inspectors will be focusing on: (i) the adequacy and safe use of traffic control procedures, including appropriate training and signage, (ii) the condition of vehicle braking, steering, lighting and other safety components on mine or quarry vehicles, and (iii) confirmation that vehicle safety components are being tested, and that testing records are being maintained, as required by the Regulation for Mines and Mining Plants, R.R.O. 1990, Reg. 854.

For more information, check out the Ministry of Labour’s press release: http://news.ontario.ca/mol/en/2012/07/summer-safety-inspections-target-workplace-hazards.html.

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Ontario Announces Summer Safety Inspection Blitz Of Crane Safety And Surface Mines And Quarries

Preventing Heat Stress In The Workplace

As many places in Canada are sweltering under a summer heat wave, employers should assess the risk of heat exposure in their workplace and, where appropriate, develop and implement workplace policies to reduce the risk of illness or injuries relating to heat stress. Most Canadian provinces have enacted specific regulatory requirements to combat thermal stress arising from extreme heat or cold. However, even in those provinces where no specific regulatory requirement exists relating to thermal stress (for example, like in Ontario and Alberta), an employer still has an obligation to prevent heat stress in the workplace as part of its general duty to protect the health and safety of its workers.

Although a number of manufacturing activities can expose workers to heat year-round, incidents of workplace heat exposure and heat stress clearly increase in the summer, particularly where employees are engaged in outdoor work activities. If there is a risk of excess heat exposure in the workplace, an employer is well-advised to take the following steps to prevent heat stress:

  • Train supervisors and workers to recognize early signs and symptoms of heat stress in themselves and their co-workers, including excessive sweating, dizziness and nausea
  • Where working in hot environments, arrange work schedules to permit employees to become acclimatized to heat
  • Provide adequate supervision and don’t allow individuals to work alone in conditions where heat stress is a legitimate risk
  • Determine appropriate work-rest cycles that allow time for workers to cool down
  • Provide shaded or well-ventilated areas for breaks and rests and, where appropriate, reduce temperature and humidity through air conditioning
  • Schedule more physically demanding work at cooler times of the day and, where possible, rotate work activities to reduce heat exposure
  • Make cool drinking water available and remind workers to drink water regularly to stay hydrated (i.e. approximately 250 mL of water every 20 minutes)
  • When working outdoors, remind workers to wear light-coloured, loose-fitting clothing that is breathable
  • Encourage workers to wear long-sleeved shirts and pants and keep their heads covered to reduce direct exposure to the sun when working outdoors
  • If you suspect that a worker is suffering from heat stress, move him or her to a cool, shaded area, provide the worker with water and appropriate first aid

There are a number of helpful on-line resources to help employers develop workplace policies and programs to combat heat stress in the workplace. For more information on preventing heat stress in the workplace, employers are encouraged to take a look at the following publications:

Ontario Ministry of Labour – Heat Stress Guideline – http://www.labour.gov.on.ca/english/hs/pubs/gl_heat.php

Ontario WSIB – Guide to Preventing Heat Stress – http://www.wsib.on.ca/files/Content/PreventionHSGuide/HeatStressGuide.pdf

WorkSafe Alberta – Best Practices for Working Safety in the Heat and Cold – http://www.employment.alberta.ca/documents/WHS/WHS-PUB_gs006.pdf

WorkSafe BC – Preventing Heat Stress at Work – http://www.worksafebc.com/publications/health_and_safety/by_topic/assets/pdf/heat_stress.pdf

Québec – CSST – Guide de prévention des coups de chaleur – http://www.csst.qc.ca/publications/200/Pages/dc_200_16184.aspx

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Preventing Heat Stress In The Workplace

Bill 14 Receives Royal Assent: British Columbia Employees To Receive Workers’ Compensation for Bullying and Harassment

This Post also appears on occupationalhealthandsafetylaw.com.

Bill 14, or the Workers’ Compensation Amendment Act, 2011 received Royal Assent on May 31, 2012. Among other things, the Act expressly addresses bullying and harassment, and amends section 5.1 of the Workers’ Compensation Act. Section 5.1 currently requires that, in order to receive workers compensation benefits for a mental disorder, the mental disorder must have been an acute reaction to an event in the workplace. Come July 1, 2012, an employee will have a compensable claim for mental stress resulting from: traumatic events in the workplace; a significant work-related stressor; or a cumulative series of significant work-related stressors.

WorkSafeBC, the entity tasked with the administration and implementation of the Workers’ Compensation Act, must bring its Policies (which are applied by the Officers of the Workers’ Compensation Board in the course of adjudicating claims) into line with these changes to Section 5.1.

To this end, WorkSafeBC’s Policy and Regulation Division has developed a draft Policy which addresses the changes to the way claims of mental disorder are adjudicated. The Discussion Paper accompanying the draft Policy identifies the challenges of adjudicating claims of gradual onset stress, and notes the lack of experience with such claims at the Workers’ Compensation Board. However, the Policy, among other things, attempts to put some limits on the stress claims that may be advanced by employees by requiring that the stressor complained of must exceed the intensity or duration expected of the normal pressures associated with the workplace, and excludes interpersonal conflicts to the extent those conflicts do not include threatening or abusive behaviour such as bullying or harassment. Regardless however, it appears that Officers of the Board will retain a fair bit of discretion as to what stressors will, and will not, be accepted in the context of the new Section 5.1 and Policy, and employers can expect that the bounds of this discretion will be the subject of challenge at at least the Board and the Workers’ Compensation Appeal Tribunal.

In contrast to British Columbia’s new and broad approach to claims of mental disorder, Ontario, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, New Brunswick and Manitoba have all implemented legislation which limits an employee’s ability to claim compensation for gradual onset stress.

WorkSafeBC estimates that the acceptance of claims under the new Section 5.1 will result in the acceptance of an additional 300 wage-loss claims annually, with an estimated cost impact of $18 to $20 million dollars.

WorkSafeBC is currently accepting stakeholder feedback on the proposed new Policy until June 15, 2012. The Discussion Paper and draft Policy can be accessed at: http://www.worksafebc.com/regulation_and_policy/policy_consultation/assets/pdf/Bill14/Bill14MentalDisorder.pdf

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Bill 14 Receives Royal Assent: British Columbia Employees To Receive Workers’ Compensation for Bullying and Harassment

Statistical Analysis of 863 Ontario Occupational Health and Safety Act Prosecutions: FMC Releases Report

This article originally appeared on www.occupationalhealthandsafetylaw.com.

More than two-thirds of Ontario companies charged under the Occupational Health and Safety Act plead guilty. Defendants who plead guilty and allow the court to set their fines pay, on average, 40% less in fines than defendants who plead guilty and accept the Ministry of Labour’s proposed fine. At least one party is convicted and fined in 82% of Ontario workplace incidents that result in occupational health and safety charges. Two-thirds of corporations that go to trial are found guilty. These are some of the nine findings that we have drawn from our study of unpublished prosecution data obtained from the Ontario Ministry of Labour through a Freedom of Information request.

From the data, which involves 863 defendants – 592 corporations and 271 individuals such as supervisors and workers – charged with offences under the Occupational Health and Safety Act, we have been able to paint a statistical picture of what actually happens when employers, supervisors, workers and others are charged under the Occupational Health and Safety Act. All of the charges in our study were resolved during the eighteen-month period from January 2009 to June 2010.

The results of our study may be accessed at: Statistical Analysis of 863 Ontario Occupational Health and Safety Act Prosecutions Report

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Statistical Analysis of 863 Ontario Occupational Health and Safety Act Prosecutions: FMC Releases Report