Don’t Leave Workplace Safety out in the Cold

Winter weather is once again upon us. With it comes the joy of the season, but also an increased risk to worker safety. That increased risk imposes special obligations on employers under the Occupational Health & Safety Act (OHSA).

Some of the obligations are addressed in the OHSA’s Regulations. For example, employers have to clear snow and ice, and ensure that workers wear appropriate clothing that protects them from the cold. However, employers’ wintertime obligations go well beyond the requirements that are contained in the Regulations.

Every employer in Ontario is subject to a general duty to take every precaution reasonable in the circumstances for the protection of its workers. Despite the broad language used to express this duty, employers tend to think that they have done what they need to do if they meet the standards set out in the Regulations. That is not the case.

The Ontario Court of Appeal made this clear late last December when it held that the general duty extends well beyond the limits of the Regulations. The Court of Appeal said that had to be the case if worker safety was to receive the generous protection it deserves.

In light of that reality, we recommend that employers take three steps at the start of the season to protect their workers and to discharge their obligation, namely: (i) identify and (ii) control the hazards in the workplace, and (iii) monitor the controls that are put in place.

Step 1:            Identify the Hazards

Some winter-related hazards are obvious and some are not. However, all need to be identified. Some of the questions an employer may need to ask could include:

• How is snow being shovelled? Are health considerations an issue? Recall that shovelling can trigger a cardiac event. If a contractor is hired, how are the extended employer obligations under the OHSA being addressed? Are snow blowers or snowplows being used? Do they trigger training, fuel storage or spotting/worker coordination issues? Where is snow being piled, and does it create a visibility, glare or tipping issue?
• How are workers keeping warm? Recall that some space heaters run on fuel oil. Are there exhaust/ventilation issues? Is there a fire or burn risk? Have heaters been maintained/inspected? Are carbon monoxide and smoke detectors operational? Is training needed?
• How are slip hazards being addressed? Recall that water can pool and freeze in sinkages in parking lots and walkways. Do these need to be brought flush with the rest of the area? Does melting snow inside require mats or an increase in the cleaning schedule?

All of these potential seasonal hazards, and others, need to be identified. The specific questions that an employer should be asking can be helpfully informed by workplace inspections, consultants and the implementation of an easy to use process through which workers can report hazards that they observe.

Step 2:            Control the Hazards

Once specific winter hazards have been identified, they need to be addressed. In some cases that may be easy. For example, maintaining and servicing equipment may be straightforward. Other issues, such as developing and training workers on how to use equipment while addressing exhaust or ventilation concerns, or how to remove snow when working around slopes or drop offs, may be more complicated. Notwithstanding that, they also need to be addressed.

Regardless though of what needs to be done (i) all procedures should be written down in a clear, straightforward and easy to understand format; (ii) all workers should be trained on the procedure and the training should be documented; and (iii) the training needs to be prepared by a subject matter expert in a way that addresses both the concern and applicable regulatory requirements.

Step 3:            Monitor the Controls

A recurring problem that we keep seeing in the cases involves employers who have put strong systems in place to identify and address particular hazards, but workers don’t always follow them.

Employers have to protect against this by taking three steps. First, they should make sure that their supervisors are trained on the very policies that they are there to enforce. Second, the supervisors need to document their supervision. They can do this by creating a detailed record for every shift that reflects (i) who was being supervised, and (ii) that work was being carried out in accordance with the applicable policies. That record should then be submitted to management, and checked on a regular basis for completeness. Third, if a supervisor identifies non-compliance with a policy, there has to be a consequence. Discipline needs to be delivered and recorded. There tends to be little impetus for compliance when there is no consequence for non-compliance.