Occupational health and safety training
By Jeremy Warning and Ryan Edmonds
In early December 2010 the report of the Expert Advisory Panel on Occupational Health and Safety (the “Dean Panel”) set out 46 detailed recommendations to change the occupational health and safety system in Ontario. The Ontario government was quick to accept the Dean Panel’s recommendations and commit to their implementation. One of the recommendations was that there be mandatory health and safety awareness training for all workers and supervisors responsible for frontline staff. It was recommended that such training include:
• health and safety rights and responsibilities;
• the role of health and safety authorities, the Ministry and the Workplace Safety and Insurance Board;
• hazard recognition, control and elimination; and
• the Workplace Hazardous Materials Information System (WHMIS).
On November 22, 2013, the Ontario Government continued to carry through on its commitment to implement the Dean Panel recommendations as it enacted occupational health and safety awareness and training regulation, Ontario Regulation No. 297/13 (the “Regulation”). The Regulation requires employers covered by the Occupational Health and Safety Act (“OHSA”) to ensure that all workers and supervisors, complete a basic occupational health and safety awareness training program. The requirement becomes mandatory on July 1, 2014.
To be valid under the Regulation, the health and safety awareness training program must cover a number of mandatory topics. For workers, these topics include:
• The duties and rights of workers under the OHSA;
• The duties of employers and supervisors under the OHSA;
• The roles of health and safety representatives and Joint Health and Safety Committees under the OHSA;
• The roles of the Ministry of Labour, Workplace Safety and Insurance Board, and designated entities (e.g. safe work associations [like Workplace Safety and Prevention Services or the Infrastructure Health and Safety Association], medical clinics or training centres) with respect to workplace health and safety;
• Identifying and responding to common workplace hazards;
• The requirements under the WHMIS regulation; and
• Occupational illness, including the notion of latency.
The awareness training requirements for supervisors largely mirror those for workers, with the addition of the following topics:
• How to recognize, assess and control workplace hazards;
• How to evaluate controls on workplace safety; and
• Sources of information on occupational health and safety.
The Regulation does not define the “common workplace hazards” for which training is to be provided. As such, the Regulation does not specifically indicate whether “common workplace hazards” means hazards that are generally in workplaces or if it means site or job specific hazards that would be commonly found in the particular work or workplace. The Ministry of Labour has published a “Frequently Asked Questions” piece on its website. That piece indicates that common workplace hazards include:
• slipping, tripping and falling;
• working near motorized vehicles;
• using or working near machinery;
• workplace violence; and
• repeating the same movements over and over, especially if in an awkward position or using a lot of force.
What is a hazard?
One might cynically observe that the Ministry has only indicated what is included in common workplace hazards and not provided a definitive or exhaustive list for employers to follow. However, in the writer’s view, the Regulation is intended to provide for general health and safety training that provides workers and supervisors with an introduction to health and safety rights, obligations and hazards. Employers will be expected to augment this introductory training with workplace-specific training pursuant to the existing obligation to provide information and instruction to workers to protect their health and safety under paragraph 25(2)(a) of the OHSA. Consequently, employers must remember that health and safety awareness training is not intended to represent the totality of the training obligations under the OHSA.
As noted already, the provisions of the Regulation mandating the provision of awareness training programs will come into force on July 1, 2014. However, in addition to that time frame, the Regulation requires that employers provide awareness training to workers “as soon as practicable.” The Regulation does not define that phrase or provide any other guidance on what “as soon as practicable” means. This is not unusual and provides some flexibility to employers in how training may be arranged. It is notable, though, that the Regulation does not specifically require the employer to provide the awareness training before the worker begins performing work for the employer. That said, the likely expectation is that workers will be provided with the health and safety awareness training soon after beginning work with the employer.
The Regulation is more definitive about when supervisors must be provided with awareness training. As with workers, the Regulation does not require a supervisor to have been given awareness training before he or she begins performing work. However, the Regulation requires that the supervisor receive such training within one week of performing work as a supervisor.
One challenge that may present itself is comprehensively identifying all people who are supervisors as defined by the OHSA. The OHSA defines a supervisor as someone who “has charge of a workplace or authority over a worker” as the courts have applied the definition broadly such that people working as lead hands, forepersons, company presidents and in other positions within the management structure have all been found to be supervisors for OHSA purposes. In light of this, it would be prudent for employers to identify all people who are supervisors in order to ensure that they are provided with the prescribed training.
The Regulation does not require that the health and safety awareness training be provided in any particular manner or style. Employers may, therefore, choose to provide the training directly to their workers and supervisors or to have the training provided by a third party such as a law firm, health and safety consultant or by using the training resources available from the Ministry of Labour.
Employers should ensure that the content of the training (such as printed materials, workbooks, videos, or comprehension tests/quizzes) is retained. This will allow the employer to demonstrate the specific information and instruction that was provided to the worker or supervisor.
The Regulation does not require an employer to provide awareness training to a worker if:
1. the worker has provided the employer with proof of completion of a previous basic occupational health and safety awareness training program; and
2. the employer has verified that the previous training program met the requirements of the Regulation.
For supervisors that are working for the employer before July 1, 2014, they will not be required to be given awareness training if the employer verifies that the supervisor had completed a basic occupational health and safety awareness training program that meets the requirements of the Regulation.
Also, for supervisors that begin employment with the employer after July 1, 2014, they will be exempted from the requirements of the Regulation on the same basis as workers are exempted: provision of proof of previous training and employer verification that such training met the prescribed requirements.
Workers and supervisors who have been exempted from the training requirements will remain exempt if they move to new employment. However, in order to maintain the exemption the worker or supervisor must provide proof of the exemption to their new employer. It is also important for employers to provide or obtain the written proof that the worker or supervisor has completed health and safety awareness training that complies with the Regulation or is exempt from same.
Further, workers and supervisors are entitled to receive written proof of their training upon request to their employer. Indeed, the Regulation provides that this proof must be provided to workers and supervisors who no longer work for the employer as long as they request the proof of training within six months of ceasing to work for the employer.
The enactment of the Regulation requires employers to provide specific training to workers and supervisors. However, the training requirements imposed by the Regulation are, in large measure, not new. The OHSA has long required employers to provide adequate information and instruction to workers to protect their health and safety. What is new is the establishment of common training requirements for all workers and supervisors in Ontario and the requirement that employers provide information and instruction on the health and safety system in Ontario.
It is not clear how quickly or vigorously the Ministry of Labour will enforce the new training requirements. What is more clear is that compliance may present a host of logistical challenges to employers such as developing or identifying appropriate training programs, ensuring that all workers and supervisors receive the required training, evaluating existing training against the Regulation to determine whether an exemption applies, and collecting proof of training and exemptions.
Finally, though this regulation is new to Ontario, prescribed training standards are not new to Canada health and safety legislation. For instance, British Columbia has legislated training requirements for young and new workers that have been in place for more than six years. Another jurisdiction establishing legislated training requirements may well influence other Canadian jurisdictions to implement similar legislation.
Jeremy Warning practices occupational health and safety law and Ryan Edmonds practices employment and labour law at Heenan Blaikie LLP in Toronto.