Young Workers—Looking Beyond OHS Legislation
By Jamie Jurczak, Taylor McCaffrey LLP
When it comes to abiding by the rules and regulations that affect the workplace, employers must take into account the fact that workplace health and safety laws aren’t the only pieces of legislation that restrict what young people can or cannot do at work. For example, an employer in Manitoba might carefully follow all the relevant rules set out in the Workplace Health and Safety Act (WHSA) before employing a 17-year-old worker for the task of removing asbestos, only to learn that no one under the age of 18 is allowed to perform such a task. Although the regulations created under the WHSA set out the requirements imposed on employers in the asbestos industry (such as what kind of training to provide to workers), it’s the Employment Standards Code (ESC) and regulations that bar the employment of workers who are under the age of 18.
Thus, it’s important for employers to consider three categories of legislation when employing young workers:
Workplace health and safety laws. First, look at workplace health and safety laws to determine if young workers are restricted in any way. Don’t forget to look at any regulations that have been created pursuant to the OHS laws. In Ontario, for example, there are separate regulations under the OHS Act that set out minimum age requirements for certain industries, including:
- Industrial establishments (minimum age of 16 years in a logging operation, minimum of 15 years in a non-logging factory operation);
- Offshore oil and gas (minimum age of 18 years);
- Window cleaning (minimum age of 18 years);
- Mines and mining plants (minimum age of 16 years at a surface mine, minimum of 18 years at an underground mine); and
- Construction projects (no one younger than 16 years).
Employment standards laws. Second, look at laws and regulations that create minimum employment standards. Most jurisdictions do include some form of restriction on young workers in their employment standards legislation. However, in Prince Edward Island, such restrictions have received their own law, the Youth Employment Act. These employment standards typically restrict employers from employing a young person in work that’s likely to be harmful to their health or safety (such as construction and certain industrial establishments). These standards also generally place restrictions on the times of day young workers can work, such as no working nights and no work during school hours.
Education laws. Finally, an employer must be mindful of education laws that often require children under the age of 16 to attend school. The significance of such legislation to an employer is, of course, that a worker who must attend school consequently can’t be working during school hours. Although some jurisdictions simply mandate school attendance, others go so far as to impose penalties on employers for employing certain young workers during school hours. For example, Ontario’s Education Act imposes a fine as high as $200 on an employer who employs during school hours a worker who’s under the age of 16.
Consequences of Ignoring Relevant Laws
Returning to Manitoba for a moment, the regulations under the WHSA require an employer who operates a workplace where asbestos is present to ensure that a worker who’s likely to be exposed to an asbestos-containing material is provided with information, instruction and training on asbestos hazards, identifying asbestos-containing material at the workplace, the use of PPE and the purposes and significance of any health monitoring in which the worker may be required to participate. An employer who’s convicted of failing to provide such training where needed can be fined up to $250,000 under the WHSA.
If the worker who received inadequate training is 17-years-old, it’s likely that the penalty imposed due to a failure to properly train could be aggravated by the fact that the employer ought not to have hired the worker in the first place given his or her age. In addition, having employed a 17-year-old for the task of removing asbestos would likely result in a charge under the ESC and a fine separate from any fine imposed under the WHSA.
Simply abiding by the parameters and requirements set out under the workplace health and safety laws may not constitute sufficient employer due diligence when employing young workers. There are a number of different laws that not only restrict what young workers can and cannot do but also impose fines on employers. Workplace health and safety laws, employment standards laws, education acts and the regulations related to all three make up the legal landscape that employers should consult when employing young workers. (Here’s a chart that provides an overview of the various young worker requirements in each jurisdiction.)
Jamie Jurczak is a partner at Taylor McCaffrey LLP. Jamie’s preferred area of practice is occupational health and safety. She’s experienced in defending employers charged under provincial and federal OHS legislation and is well versed in assisting clients in responding to serious workplace incidents, addressing administrative appeals of regulatory orders and performing regulatory compliance reviews and audits. She frequently speaks at conferences and seminars on various topics relating to OHS legal liability and due diligence. You can contact her at 204.988.0393 or firstname.lastname@example.org.