Wow, that’s tricky. Technically, you’d have no liability exposure if you verified that your forklift operators have received and maintained all of the required licensing and certification in your jurisdiction. But there’s another factor at play, namely, your obligation under the OHS Act (Sec. 25(2)(h) in Ontario but all jurisdictions have similar rules) to take every precaution reasonable in the circumstances for the protection of a worker. Your recognition of potential visual impairment problems among forklift operators puts you on notice of a potential hazard triggering potential liability under Sec. 25(2)(h). Stated in terms of due diligence, notice of the hazard makes any incidents or injuries that result from the hazard reasonably foreseeable, thereby triggering your need to take reasonable steps to guard against it.
So, what measures should you take’ That’s tricky not only because the operators are licensed but also because their visual impairment–or perceived impairment–is a disability protected by and requiring accommodations under human rights laws. Long story short: You need to first figure out if your suspicions are true. This is where you should really talk to a lawyer. But while I can’t offer you legal counsel–especially since I don’t know all the facts, I can offer some general pointers with the understanding that they’re NOT LEGAL ADVICE:
Suggest approaching the workers and expressing your concerns and asking why they don’t have a vehicle licence. Let them know you’re being constructive and supportive and that you’re in no way seeking to bust or discipline anyone.
Depending on their response, you may need to ask the workers to take an eye test administered by a qualified and independent ophthalmologist or other healthcare professional and furnished at your own expense with no costs to the workers.
If visual problems are identified, you need to determine whether they’re a safety hazard. If so, you need to address them, being mindful of the workers’ rights to reasonable accommodations to the point of undue hardship. Removing them from forklift operation duty should be a measure of last resort that you undertake only after determining that there are no other ways to accommodate, e.g., requiring them to wear prescription eyewear. But given a stark choice between safety and accommodation, safety rules. Stated differently, endangering any person’s safety is undue hardship, not reasonable accommodation. Your goal, though, should be to do anything reasonably possible to avoid having to make that choice.
Hope that answer was worth the 3-week wait. Feel free to follow up at glennd@bongarde.com
by having the operators take an eye exam.