Year-End Compliance Briefing: Federal Sector OHS Year In Review
While 2018 was a slow year on the regulatory front—notwithstanding technical changes to OHS Regs. slated to take effect in spring (see WHAT TO EXPECT IN 2019 below for the details)—there were some significant developments in the legislature and courts.
On Oct. 25, 2018, Canada’s most progressive workplace violence and harassment law in over a decade took effect for federally regulated workplaces. Bill C-65 can be thought of as the response to the Me-Too movement designed to address the problems with the current regulatory regime which provides theoretical protection against harassment but not the fears of retaliation that make victims so reluctant to use them. Specifically, Bill C-65 incorporates new rights and mechanisms (contained in Part 2 of the Canada Labour Code) designed to ensure that victims come forward and that their complaints are fairly investigated and resolved. In addition to stronger privacy and reprisal protections for employees who complain of violence and harassment, the law provides new employee rights:
- To have complaints investigated by neutral third parties;
- To have complaints resolved via informal resolution; and
- To sue their employer for not protecting them from violence/harassment for up to 3 months after employment ends.
KEY COURT CASES
As usual, the federal courts handed down several significant rulings during the year, including a May Supreme Court decision affirming BC’s right to charge a licence holder of forest land for an OHS violation allegedly resulting in a worker’s death on the property as well as its authority to issue administrative monetary penalties for the violation [West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22 (CanLII), May 18, 2018].
Another biggie was a federal arbitrator’s ruling on what has arguably become the hottest issue in safety litigation (if such a thing exists), namely, drug testing. The case involved an airline worker fired for failing a post-incident drug test he claimed was attributable to his lawful use of medical marijuana. Although the worker’s job was safety-sensitive and testing was done after an incident occurred, the arbitrator said the testing policy was overbroad because it didn’t accommodate legal medical marijuana use and reinstated the worker [Airport Terminal Services Canadian Company v Unifor, Local 2002, 2018 CanLII 14518 (CA LA), March 15, 2018].
Still, while drug testing battles continued to rage in courts across the country, the Canadian Supreme Court passed up the chance to resolve the issue, at least for random testing, when it refused to hear the appeal of Suncor in a high profile Alberta case ruling against random drug testing for safety-sensitive oilsands workers.
WHAT TO EXPECT IN 2019
In the spring, significant technical revisions to OHS regulations affecting fall protection, PPE and respiratory protection will go into effect, as summarized below:
Fall Protection Changes
|OHS Regs. Part XII Provision||Current Rule||Change|
|Sec. 12.10(1)—Height at which fall protection systems required||Where employees working at height of 2.4 meters from an unguarded structure, vehicle or ladder||Where employees working at height of 3 meters from any structure (reference to “unguarded” removed), vehicle or ladder|
|Sec. 12.10(3)—Standards for anchors||Anchor of a fall-protection system must be capable of withstanding a force of 17.8 kN||Anchor of a fall-protection system must be capable of withstanding a force of 17.8 kN and its connectors must be able to withstand 8 kN and meet CSA CSA Z259.15, Anchorage Connectors|
|Fall-protection plan||Not addressed||Employer must:
*Create a fall-protection plan in consultation with JHSC/Health Safety Rep
*Provide workers training on plan
*Make plan readily available at workplace
|Fall-protection hierarchy||Not addressed||In selecting fall-protection, employer must follow hierarchy of (in order):
*Guardrails, barriers and other passive systems
*Control zones extending at least 3 m back from unguarded edge
|Clearance distance||Not addressed||Employer must ensure fall-arrest system designed to prevent worker from hitting ground or object below|
|Full body harness||Not addressed||Employer must ensure worker using personal fall-protection system wears appropriate full body harness|
- Head protection must meet CSA Z94.1, rather than CSA Z94.1-M1977;
- Eye and face protectors must not only meet updated CSA Z94.3 standards but also have protection against laser radiation and arc flash; and
- New requirement that all PPE be properly stored, maintained, inspected and, if necessary, tested by a qualified person in accordance with manufacturer’s instructions to ensure it’s in good working condition.
Respiratory Protection Changes
Changes to OHS Regs. (Secs. 12.7 and 12.8) will create new safety requirements for respiratory protection not listed in NIOSH Certified Equipment List (current rules cover only NIOSH-listed equipment) including the rule that exposure against chemical, biological, radiological and nuclear (CBRN) that may be used in a terrorist attack meet CSA Z1610 covering respiratory protection for first responders.