Use Log to Prove that You Gave Workers Proper OHS Training

Simply providing safety training isn’t enough to ensure compliance; companies also must document their training efforts in case inspectors, regulators, prosecutors and courts demand proof that they provided the necessary training to each worker. Such documentation can also help companies avoid liability for a safety offence or even a crime under Bill C-45. For example, if a worker suffers a chemical burn on the job, records verifying that he attended WHMIS training and understood what he was taught can help your company prove that it exercised due diligence as to WHMIS requirements.

This article will explain everything you need to know about training records requirements under OHS laws, including why records are necessary, what kind of training must be documented, how to create the right documentation and how long to hang onto your records.  There’s also a chart showing the kinds of training for which the OHS laws in each jurisdiction require documentation.

ONLINE RESOURCE: Download a Model Working Training Log.

WHAT THE LAW SAYS

Every jurisdiction’s OHS laws require employers to provide safety training to workers. There are two kinds of training requirements:

• General: A broad obligation under the OHS act on the part of employers to provide sufficient training and instruction to workers to ensure their health and safety in performing their duties and the health and safety of others in the workplace; and
• Specific: An obligation under the OHS regulations to provide training and instructions for dealing with specific hazards (such as asbestos), operations (such as working in confined spaces) or equipment (such as respirators).What do these laws say about documenting required training? Surprisingly, not much. In fact, no jurisdiction has a blanket rule requiring employers to document all worker training. The OHS statutes and regulations deal with documentation of training in two ways:
• Require documentation of specific kinds of training. The OHS laws of nine jurisdictions—Fed, AB, BC, MB, NS, ON, PEI, SK and YT—require employers to keep records for specific kinds of training, typically including training on:
  • Confined spaces;
  • Asbestos;
  • Fire fighting;
  • WHMIS;
  • Forestry; and
  • Fall protection.
• No explicit training record requirements. The OHS laws and regulations of the remaining five jurisdictions—NB, NL, NT, NU and QC—don’t specifically require documentation for certain kinds of training.

Why You Must Document All Training Anyway

Laws must be understood by not only their literal terms but also what they’re designed to do. Accordingly, the obligation to document safety training is an implicit one that furthers the purpose behind training requirements. Specifically, simply communicating safety information to workers during training sessions or through policies and other writings isn’t enough to meet the law’s training requirements. Employers are also expected to evaluate the effectiveness of their training and take additional steps if it’s not working. There’s no way on earth you can meet this obligation unless you keep track of the training each worker has received.

Many provinces have issued guidelines either implying or expressly stating that the government agency that enforces the OHS laws views documenting training as a key component of an OHS program—even if it’s not explicitly spelled out in the law. Thus, for example, the WHSCC in Newfoundland, where training records aren’t mentioned in the OHS laws, has issued guidance stating that employers must take a “systematic approach to OHS education and training” that includes “maintenance of education and training records.”

Another reason that you need to keep training records even if the law doesn’t literally say you have to is to prove that the company provided training to its workers. Such documentation is often crucial to prove due diligence. Simply put, having training records can only help the company, while not having them can only hurt it:

Training records help company. A mine worker was killed when he fell through an open hole while conducting a post-blast clearance gas check. The mine was charged with three safety violations, including failing to properly train workers on performing gas checks safely. The court dismissed the training charge. It noted that the mine had produced training records for the two workers involved in the incident that indicated that both workers were well aware of the procedures for post-blast clearance checks [R. v. Placer Dome (CLA) Ltd.].

Lack of records hurts company. A log fell off a piece of equipment called a “debarker,” landed on a worker and broke his pelvis. The Ontario MOL inspector concluded that workers hadn’t been well trained on use of the debarker and issued an order requiring the employer to provide such training to all workers. The employer asked the Labour Relations Board to suspend the order. It argued that it already provided intensive and high quality training to workers on the use of all equipment. The Board refused to suspend the order, noting that the employer couldn’t produce any records to prove that it provided proper training [Gulick Forest Products Ltd. v.Brennan].

TRAINING RECORD BASICS

Documenting training is either a specific legal requirement or a best practice. Let’s now explain how to do it.

Which Training to Document

If your workplace is in a jurisdiction that requires employers to document certain kinds of training, make sure that your company keeps records of such training as a bare minimum. However, the better practice for all workplaces—regardless of location—is to document all training. After all, you never know when a safety inspector may request your training records on a particular kind of training or when certain training will be relevant in a prosecution for a safety violation. So create records of all the training your company provides workers, including:

• Initial training at the start of employment, including new or young worker orientation;
• New training when workers are reassigned to new jobs involving different hazards;
• Training on how to handle new equipment, procedures or processes as they’re introduced into your workplace;
• Additional training when test scores and other assessments show initial training hasn’t sunk in or after a worker commits a safety infraction or gets involved in a safety incident; and
• Periodic re-training to reinforce or update the lessons of previous training.In terms of training methods, keep records of:
  • Formal training sessions, whether run by an outside consultant or in-house staff;
  • Online training, such as taking e-learning courses;
  • Tool box talks, lunch-and-learns and other informal training sessions; and
  • Annual training reviews, such as annual WHMIS reviews.

How to Document Training

Training documentation doesn’t need to be elaborate. You can use very simple forms to create records of the training your company gives workers. You can also keep training records electronically. Whatever method you use, make sure you record at least the following information about each training session:

• When the session was held;
• Who conducted it;
• How long it lasted;
• What topics the session covered in sufficient detail. For example, don’t just say “PPE” when the specific topic was actually the proper use of respiratory equipment; and
• Who attended the session.

ONLINE RESOURCE: Download a Worker Training Log.

What to Do with Training Records

Creating training records is just step one. You have to retain those records so you have them on hand when needed. But retaining all of your old training records is a burden, even if they’re in electronic form. And if you’re using a paper system, it can be an administrative nightmare. As a result, many safety coordinators are eager to dispose of their records the moment they believe they no longer need them.

So how long does a company have to keep its training records? In some cases, the OHS laws in the jurisdictions that require employers to keep records of certain kinds of training specify how long those records must be retained. For example:

• Under the federal Canada OHS Regs., employers must keep records of WHMIS training for two years after the worker ceases a) to handle or be exposed to the hazardous substance; or b) to install, operate, maintain or repair the assembly of pipes;
• Under AB’s OHS Code, 2009, employers must keep records of training for mine self-rescuers for at least three years;
• Under BC’s OHS Regs., employers must keep records of asbestos and cytotoxic drug training for at least three years,
• Under NS’s Underground Mining Reg., employers must keep mine job training program records for at least two years after the mine closes;
• Under PEI’s OHS General Regs., employers must keep records of noise exposure training for as long as the worker is employed by the employer; and
• Under SK’s OHS Regs., employers must keep respiratory protection device training records for as long as the worker is employed by the employer.

As you can see, training record retention requirements are all over the place. A good rule of thumb: Keep training records for each worker for as long as the worker is employed by your company, even if the worker changes positions and so his prior, say, crane operation training is no longer relevant. After a worker leaves the company, the most prudent course is to keep that worker’s training records for at least five years, says Toronto OHS lawyer Ryan J. Conlin. And although it may seem like a long time to keep a lot of paperwork, training records can be kept electronically now, eliminating storage concerns, he adds.

Conclusion

Safety coordinators don’t want to be nor should they be paper pushers. But often a few scraps of paper can mean the difference between proving due diligence and paying a huge fine for a safety violation. So take the time to set up a simple training record program for your company and you and your company will reap the benefits down the road.

INSIDER SOURCE

Ryan J. Conlin: Stringer Brisbin Humphrey, 110 Yonge St., Ste. 1100, Toronto, ON M5C 1T4; (416) 862-1616; RConlin@sbhlawyers.com.

SHOW YOUR LAWYER

Gulick Forest Products Ltd. v. Brennan, [2007] CanLII 43690 (ON L.R.B.), Oct. 17, 2007

R. v. Placer Dome (CLA) Ltd., [2006] ONCJ 306 (CanLII), Aug. 24, 2006

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LAWS IN YOUR PROVINCE

• TRAINING RECORD REQUIREMENTSEach jurisdiction’s OHS laws require employers to document the following kinds of training:
• FEDERAL: a) WHMIS [Canada OHS Regs., Sec. 10.15]; b) ventilation systems [Sec. 10.18(7)]; c) motorized materials handling equipment [Sec. 14.23(4)]; d) emergency warden, deputy emergency warden and monitor training [Sec. 17.8(2)]; and e) diver training [Sec. 18.40]; f) workplace violence [Sec. 20.10(5)].
• ALBERTA: a) confined space [OHS Code 2009, Sec. 46(2)]; and b) fire fighting [Sec. 547(2)]; c) mine self rescuers [Sec. 692(e)].
• BRITISH COLUMBIA: a) young or new worker training [OHS Regs., Sec. 3.25]; b) asbestos [Sec. 6.32(2)]; c) biological agents [Sec. 6.34(g)]; d) cytotoxic drugs [Sec. 6.52(2)]; e) lead [Sec. 6.68(a)]; f) toxic process gases [Sec. 6.121(b)]; g) confined space rescue person training [Sec. 9.38(3)]; h) nitrox diving [Sec. 24.26(4)(c)]; i) general forestry [Sec. 26.3(3)]; and j) faller training [Sec. 26.22(6)].
• MANITOBA: a) powered lift trucks [Workplace Health & Safety Reg., Sec. 22.29(3)(b)]; and b) firefighter [Sec. 42.3].
• NEW BRUNSWICK: No specific training record requirements.
• NEWFOUNDLAND/LABRADOR: No specific training record requirements.
• NORTHWEST TERRITORIES/NUNAVUT: No specific training record requirements.
• NOVA SCOTIA: Underground Mining Reg., Sec. 517(2) requires employers at underground mines to keep records of workers’ participation in job training program.
• ONTARIO: Construction Projects Reg. requires employers to document training on: a) fall protection systems [Sec. 26.2(2)]; and b) confined space [Sec. 221.8(3)]. Industrial Establishments Reg., Sec. 119.7(5) requires employers to document confined space training. Confined Space Reg. requires employers to document: a) general confined space training [Sec. 8(5)]; and b) plan specific training [Sec. 9(2)].
• PRINCE EDWARD ISLAND: a) noise exposure [OHS General Regs., Sec. 8.10]; and b) asbestos [Sec. 49.28(1)(c)].
• QUÉBEC: No specific training record requirements.
• SASKATCHEWAN: a) respiratory protective devices [OHS Regs., Sec. 88(5)(c)]; b) signaller training [Sec. 132(1)(c)]; c) powered mobile equipment [Sec. 154(3)(b)]; d) flammable or explosive substance [Sec. 369(3)(c)]; and e) fire fighters [Sec. 482(1)(c)].
• YUKON: a) confined space rescue personnel [OHS Regs., Sec. 2.30(4)]; b) general forestry [Sec. 12.02(3)]; and c) faller training [Sec. 12.17(3)].

5 KEY FACTS ABOUT TRAINING RECORDS

1. No jurisdiction requires employers to keep records of all worker training.
2. However, some jurisdictions require employers to keep records of certain kinds of training.
3. Training records can help you prove due diligence, while not having such records can derail a due diligence defence.
4. Use simple forms to document all training provided to workers.
5. Keep training records for at least as long as a worker is employed by your company.