Soon the mercury will be dropping. If your workers work outdoors or in unheated indoor spaces, you’ll need to equip them—physically and mentally—to handle the hazards of cold weather. As a safety coordinator, you know well that frostbite and hypothermia (which, for simplicity’s sake, we’ll refer to collectively as “cold stress”) represent a serious threat that is not to be trifled with. They can paralyze, amputate and kill. But your workers might not get
the message until it’s too late.
Are you doing enough to protect your workers against the risks of cold stress? If one of your workers should suffer a serious or fatal cold-stress injury, could you and your company be liable? This article will help you answer that question. We’ll look at what the law requires employers to do to safeguard their workers against the dangers of cold stress. We’ll also show you how to create an exposure plan to insulate your workers against injury and your company against legal risk. There’s a Model Plan here and a chart here summing up the cold stress requirements under the laws of the different provinces.
The Law of Cold Stress
As you might expect, the OHS laws of all Canadian provinces and territories recognize cold stress as a workplace hazard and require employers to take measures to protect workers against it. But the nature of the obligation varies from province to province. There are two basic patterns of regulation.
The 10 Cold Stress Provinces: Ten jurisdictions (BC, Fed, NB, NL, NS, ON, PE, QC, SK and YT) directly address cold stress in their OHS regulations and require employers to take specific measures. The level of detail in each regulation varies from province to province. So while ON and federal regulations simply state a minimum temperature level an employer must maintain, provinces like QC, BC and SK lay out an array of measures employers are supposed to take.
In the latter provinces, the preferred approach is to implement engineering controls to maintain thermal comfort; if use of engineering controls to eliminate the hazard is not “practicable,” employers must use a combination of administrative controls and protective clothing and equipment to manage it. And, of course, employers are also required to warn and educate workers about the dangers of cold stress, including how to recognize and treat the various signs and symptoms of frostbite and hypothermia.
A typical example of a fully developed cold stress regulation is Part 7 of the BC OHS Regulation which requires employers to:
Insider Says: The federal government, BC and NB have also issued guidelines to supplement their cold stress regulations and to explain in more detail what employers should do to ensure compliance. ON is also reportedly working on supplementary guidelines for cold stress.
The 4 General Duty Provinces: Four provinces and territories (AB, MB, NT and NU) don’t specifically mention cold stress in their OHS regulations. But, as we hope you know, employers aren’t supposed to address only the hazards specifically mentioned in the OHS regulations. All OHS statutes include a General Duty clause requiring employers to furnish workers a safe place to work and to take reasonable measures to eliminate foreseeable risks. The four provinces where there are no cold stress regulations interpret their General Duty clauses as applying to cold stress.
Two of these provinces, AB (http://www3.g ov.ab.ca/hre/whs/publications/pdf/mg021.pdf) and MB (http://www.gov.mb.ca/labour/safety/ pdf/bltn186.pdf.), have issued guidelinessetting out the measures employers should take to protect workers against cold stress. Although they don’t carry the same legal authority as a regulation, when the government agency of a province prescribes specific guidelines for dealing with a hazard, employers concerned about their liability should give serious consideration to adopting those measures, or at the very least have a compelling justification for not doing so.
Employers Liable for Failing to Protect Workers from Cold
The duty of Canadian employers to protect workers against cold stress goes back to the time before the OHS laws came into being. One of the earliest court cases dealing with employer liability for cold stress took place in Quebec in 1913. It involved a quarry worker who had to have his leg amputated as a result of frostbite. The worker had been on outside duty for 10 hours in sub-zero temperatures. In its defence, the company pointed out that the foreman had told workers that they had permission to go home. This wasn’t enough, according to the Canadian Supreme Court. Given the weather conditions and the increased risk of injury, the foreman should have suspended work operations and ordered the workers to leave. “By continuing their employment, he was assuming responsibility for any accidents that might be due to the intense cold,” the court said [The Canada Cement Co. v. Pazuk].
In a more recent example of a case involving an employer’s liability for a worker’s cold stress injuries, a BC restaurant worker hurt his hand while working alone inside a walk-in freezer. While he was nursing his injuries, the door suddenly closed behind him; the handle wouldn’t budge. And since the door was
always kept open, nobody knew that the handle didn’t work. The worker was stuck in the freezer for three hours. By the time the employer found him, he was unconscious and suffering from frostbite and hypothermia. The employer was presumably found liable for the injury [BC WC Board Report: Injury 05-04].
Why You Should Create a Cold Stress Exposure Plan
Simply reminding your workers to stay warm and to be careful in the cold isn’t enough to protect them or ensure compliance with legal requirements regarding cold stress. You must also educate your workers about the dangers and apply appropriate engineering, administrative and work controls to manage those dangers. BC and PE require employers to implement a cold stress exposure plan. The other provinces don’t mention anything about a plan; even so, creating such a plan and putting it into effect is a good strategy for protecting workers and managing liability risk no matter what part of Canada you come from.
How to Create a Cold Stress Exposure Plan
There’s no such thing as a one-size-fits-all plan for cold stress exposure. Solutions, policies and procedures will vary according to industry, facility type, work process involved and the requirements of your province’s law. But the Insider’s Model Plan on page 4 can help you get organized and frame an appropriate plan. The Model Plan, which is based on the cold stress guidelines prepared by the government of BC, lays out the fundamental elements a basic plan should include. Just make sure you adapt it to meet your own needs and circumstances.
Like ours, your plan should:
Explain the Plan’s Purpose. Help workers understand the dangers to which they are exposed, including frostbite and hypothermia, by explaining them in the plan.
Require Periodic Monitoring of Temperature, Wind Chill and Other Factors. The legal obligation to protect
workers against cold stress involves monitoring temperature and wind chill levels. But it doesn’t stop there. Your supervisors should also consider whether the worker is performing light, moderate or heavy work. While moderate work provides a warming effect, heavy work produces perspiration which makes workers more vulnerable to cold stress injuries. Another important factor is whether working conditions are wet — which would require additional protection.
Require Supervisors to Protect
Workers Subject to Cold Exposure. Several provinces — including BC, NL, SK and YT — require employers to provide specific measures for protecting workers, including special equipment such as shelters, warm clothing, hot drinks and limited work schedules. And virtually every province expects employers to schedule work breaks in accordance with recommendations published by the ACGIH. You can obtain these recommendations by going to www.acgih.org and searching for “cold stress TLV” (without quotes). For a similar version that you won’t have to pay for, take a look at Section G7.35-3 of BC’s cold stress guidelines: www2.worksafebc.com.
Insist that Workers Work in Groups. Like heat stress injuries, cold stress problems can creep up on a worker before he realizes what’s going on. The best way to protect your workers is to have them work together, putting each worker in charge of another’s safety.
Provide for Worker Training. The plan should require somebody at your facility to train all workers and supervisors about the signs, symptoms and prevention of cold stress. Too many workers regard being cold as a mere discomfort, something a “real man” (or woman) wouldn’t complain about. Chances
are, they don’t know much about hypothermia; and, while they’ve all heard the term “frostbite,” not many are likely to understand what the condition is and how it can hurt them. Because warming a person improperly can cause additional damage, your workers should also be trained on the appropriate first
aid measures for each form of cold stress.
SHOW YOUR LAWYER
The Canada Cement Co. v. Pazuk, 12 D.L.R. 303, May 19, 1913.
BC WC Board Report: Injury 05-04: www2.worksafebc.com/i/posters/2005/ha0504_freezer.htm.
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