Forum Replies Created
-
AuthorPosts
-
in reply to: Mask Policy – Ontario #103254
Right. You DO have to make exemptions to mask policies for both customers AND employees. In Ontario, the mask order makes exemptions for (these rules apply in not just Ontario but pretty much all parts of the country):
- A child under the age of two years; or a child under the age of 5 years either chronologically or developmentally and he or she refuses to wear a face covering and cannot be persuaded to do so by their caregiver;
- Where a Face Covering would inhibit the Person’s ability to breathe in any way; and
- Where for any other medical reason, the Person cannot safely wear a Face Covering such as, but not limited to, respiratory disease, cognitive difficulties or difficulties in hearing or processing information.
In addition, the Ontario Human Rights Commission clarifies that exemptions from mask requirements MAY BE a required accommodation for employees/job applicants with disabilities, religious preferences and other protected characteristics. You’d have the right to ask the person to verify the disability. And, of course, accommodations aren’t required if they impose undue hardship.
I don’t see anything illegal in this, as long as:
- The business really does qualify as an essential business; and
- The employer rigorously follows ALL of the required COVID emergency orders and public health guidelines.
If it fails to comply, workers might have grounds for invoking their OHS refusal rights. But, again, those refusals will be hard to justify if the employer is carrying out all of the COVID workplace safety requirements. EXCEPTION: Workers who are older and frailer and/or who have asthma, cardio problems, or other conditions making them particularly susceptible or vulnerable to COVID infection would have a stronger justify for an OHS refusal to the extent that they could still be at undue hazard even if the employer does obey all the COVID restrictions. Hope that helps. Glenn
in reply to: Private: ON – I represent a Canadian National manufacturer. Is it prudent to have an "Equipment Lender Agreement" in place for situations when a Contracted service is on site, and that contacted service has requested the use of the Company’s equipment, say for example mobile equipment. Should an agreement be established that specifies certain aspects of the lending arrangement? Is there reason that a lawyer should create the agreement, or can that be written in-house, or a templated agreement? Thanks Chuck. #103252This is an extremely complex question with lots of different layers. But at the end of the day, what I think you’re asking me is how you should manage your potential OHS liability when allowing contractors to use your equipment at the site. While this is a completely valid concern, I don’t believe that entering into a leasing arrangement is the best way to manage it. At least, I don’t think I’ve ever heard of anybody doing that.
The better approach, I believe, is to incorporate appropriate safety controls into the contract with the contractor using the equipment. Specifically, I’d require the contractor to expressly agree to follow all the safety policies and procedures you impose on your own workers who use that equipment, be it lockout, guarding, servicing, maintenance, whatever. And that would include ensuring that their own workers are adequately trained to carry out those policies and procedures.
As for the mechanics, you could either incorporate your policies and procedures as Exhibits or Attachments to the contract or create a separate “Coordination” agreement that weds your OHS rules with those of the contractor.
Gosh, yes, I think you should have a lawyer create these documents for you. This is intricate stuff. Hope that helps. Glennin reply to: Toolbox Materials request – Alberta #1032511. We haven’t tried to create a policy on this because the rules remain unclear. But I have reported on a case in which this issue was litigated. From Nova Scotia:
Nova Scotia Upholds Health Facility Moonlighting Ban as Valid COVID Safety Measure
After the pandemic broke out, an adult treatment and rehab provider banned employees from working for other employers. Just complete your shift and go straight home, stated the directive. The provider offered to ensure union workers guaranteed shifts to make up for the income losses. When the union didn’t object, the provider thought it had a deal. But a week later, the union filed a grievance. The Nova Scotia arbitrator found the provider violated the collective agreement but still tossed the grievance. Normally, employers can’t tell employees what to do in their spare time; but during a pandemic, the directive was a valid safety measure. Even so, the provider didn’t consult with the union the way the collective agreement required. But at the same time, the union’s conduct gave the provider a reasonable belief that it accepted the directive. Consequently, it was “estopped,” i.e., banned in the interest of fairness from grieving the directive [CUPE, Local 3513 v Breton Ability Centre, 2020 CanLII 93886 (NS LA), December 1, 2020].
2. Here are some resources:
https://www.worksafenb.ca/safety-topics/covid-19/working-safely-from-home/
https://my.clevelandclinic.org/-/scassets/files/org/employer-solutions/covid-19-at-home-guide.ashx
https://www.nsw.gov.au/covid-19/safe-workplaces/employers/working-from-home
3. We’ve written about employer regulation of off-duty conduct for general HR purposes. Contact me at glennd@bongarde.com if you want me to send you any.I can’t review a policy like this because it would constitute counsel that I’m not allowed to provide. Can you please just rephrase this as a specific question(s)’ This way, I can help you out without getting either one of us into trouble. Thanks.
in reply to: Distracted Driving Policy – Termination #103249Short answer: It depends.
First and foremost, keep in mind that while case law applies, the terms of progressive discipline policies are dictated by negotiation. This is especially true if the policy applies to union employees, in which case it would likely be incorporated into the collective agreement. But the fact that you’re asking this question suggests that this is NOT a union situation.
If there’s no union to contend with and the disciplinary policies and procedures are set by management rather than negotiated with employees, we’re looking at case law. The starting point is the general rule that a single offence MAY BE grounds for immediate termination, even if it’s a first offence. Stated differently, some offences are so egregious that you’re allowed to bypass the prior stages of the progressive discipline policy. The question is whether distracted driving qualifies as one of those offences. Although I haven’t researched the case law, my sense is that it’s not–unless driving is the employees’ primary duty, e.g., a bus or taxi driver. The more people the employees drive, the greater the safety imperative and the stronger the justification for making distracted driving fire-able as a first offence. But without knowing more about your company and its operations, I can’t provide anything like a definitive answer.
One final thing: Should you decide to make distracted driving grounds for immediate termination, you must clearly spell this out in your progressive disciplinary policy. If you’re making a policy change, you must go out of your way to alert affected employees of the change. And, of course, if your employees belong to a union, you’ll need to secure union agreement to the change.
Hope that helps. GlennAh yes, of course. It’s so new!
Great points, Louise. Just one small modification. Working At Heights training approved by WorkplaceNL in Newfoundland is now acceptable in Ontario also. The new rule just went into effect on Jan. 1 and recognizes that the Newfoundland training requirements are just as stringent as the Ontario ones. Thanks for weighing in.
In Ontario, the providers need to be approved by the Chief Prevention officer for Working at Heights. Currently, training can only be done in small class settings. No distance learning as of yet.
As a rule, a specific kind of certification training must involve at least some hands-on training. I recall seeing at least one of the provinces making a temporary exception to this during the pandemic, but I believe that temporary exception was quite limited for things like JHSC certification and is no longer in effect. And I doubt anybody would ever allow purely online training for anything as hazardous, technical and equipment-based as Working at Heights or Confined Space work. But I can double check if you’d like. Glenn
If completing the training is essential to their job duties, you can discipline them for refusing to take it in accordance with the terms and procedures of your HR disciplinary policies and, if the employees are in a union, the progressive discipline provisions of their collective agreement. But it’s hard for me to go much beyond that without knowing more about the situation. IS the training essential’ And why won’t they take it’ If it their objection is that they’re not being paid for their time in taking the training, there could be a potential issue under OHS laws if it’s the kind of training employers must provide at their own expense. If you want circle back with me, glennd@bongarde.com.
Good question.
Section 4.20.1 of the OHS Regulation defines “working alone or in isolation” as “working in circumstances where assistance would not be readily available to the worker (a) in case of an emergency, or (b) in case the worker is injured or in ill health.” WorkSafeBC guidelines list the factors to consider in determining if assistance would be “readily available to the worker” for purposes of interpreting the requirement:- Presence of others: Are other people in the vicinity’
- Awareness: Will other persons capable of providing assistance be aware of the worker’s need’
- Willingness: Is it reasonable to expect those other persons will provide assistance’
- Timeliness: Will assistance be provided within a reasonable period of time’
We know that there are other persons in the home. The fact that those other persons are adults suggests but doesn’t necessarily prove they’ll be capable of helping the worker. For instance, maybe they’re elderly or disabled. You just need to work through the criteria and figure it out based on the situation to see if this particular telecommuter needs to be protected as a worker working alone or in isolation. Hope that helps. Glenn
Agreed. The larger point is that just because something isn’t expressly stated in the OHS Reg doesn’t necessarily mean you don’t gotta do it. That’s because the general duty clause, in Ontario OHS Act Sec 25(2)(h) requiring employers to “take every precaution reasonable in the circumstances for the protection of a worker” encompasses measures not directly mentioned in the Regs but which are still reasonable, in this case having a written fall rescue plan. If you read the MOL court reports, you’ll notice that many if not most of the OHS charges are under 25(2)(h). Doing the reasonable thing and being able to document such, is vital to a due diligence defence, regardless of provision you’re cited for violating.
That’s a really great question because it raises a crucial point about Ontario OHS law. On its face, it seems like emergency rescue vertical fall plans are required only for construction since they’re not mentioned in the Industrial Establishments Reg. However, what often goes overlooked is the fact that Construction Project Regs requirements may also apply at industrial establishments, health care facilities and other sites you wouldn’t normally think of as being construction sites. The reason for this is that stricter OHS requirements for “construction” apply not to sites but the type of work. In other words, “construction” work can take place at any site. The key are the two definitions in Sec. 1(1) of the OHS Act:
*“construction” includes erection, alteration, repair, dismantling, demolition, structural maintenance, painting, land clearing, earth moving, grading, excavating, trenching, digging, boring, drilling, blasting, or concreting, the installation of any machinery or plant, and any work or undertaking in connection with a project but does not include any work or undertaking underground in a mine;
*“project” means a construction project, whether public or private, including,
(a) the construction of a building, bridge, structure, industrial establishment, mining plant, shaft, tunnel, caisson, trench, excavation, highway, railway, street, runway, parking lot, cofferdam, conduit, sewer, watermain, service connection, telegraph, telephone or electrical cable, pipe line, duct or well, or any combination thereof,
(b) the moving of a building or structure, and
(c) any work or undertaking, or any lands or appurtenances used in connection with construction
Bottom Line: Many of the specific requirements of the Const Project Reg apply to “projects,” including but by no means limited to the strict fall protection requirements set out in Sec. 26. Technically, though, the rescue plan is required (under Sec. 27) only if there’s a risk of drowning.
Moral: In Ontario, remember to check the Const Reg and not just the Indust Estab Reg any time your work is a project, regardless of the type of site you are. Sorry to go on so long but this is a crucial point that applies to not just fall protection but just about any kind of hazard or operation covered by the OHS regs. Glennin reply to: Fire blankets #103240I’m sorry, I need a little more specific info about the job or operation you’re talking about. Once I understand the context and hazards involved, I can look up the requirement for you. Thank you and sorry for keeping you waiting. Feel free to contact me directly at glennd@bongarde.com.
-
AuthorPosts
