A new Regulation[1] under the OHSA will explicitly require that workers and supervisors receive basic occupational health and safety training as of July 1, 2014. The Ministry of Labour initiative to impose mandatory basic OH&S training for workers and supervisors arises out of a recommendation made by an advisory panel which the Ontario government appointed in the aftermath of a tragic scaffolding accident that claimed the lives of four workers in 2009.
The apparent intention of the Ministry is to ensure workers are familiar with the most essential provisions of the OHSA. The training for workers must address the following subjects:
- the duties and rights of workers under OHSA
- the duties of employers and supervisors under OHSA
- common workplace hazards and occupational illnesses
- the role of joint health and safety committees (JHSCs) and of health and safety representatives under OHSA
- roles of the Ministry of Labour, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations; and
- information and instruction requirements set out in the Workplace Hazardous Materials Information System (WHMIS) Regulation.
The training program for supervisors must address the following subjects:
- the duties and rights of workers under OHSA;
- the duties of employers and supervisors under OHSA;
- how to identify, assess and manage workplace hazards, the role of joint health and safety committees (JHSCs), and of health and safety representatives under OHSA;
- roles of the Ministry of Labour, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations; and
- sources of information on occupational health and safety
The Ministry of Labour has created a number of on-line and print resources which are designed to assist employers in complying with the new Regulation (employers are not required to use the Ministry’s materials). Workers and supervisors who have previously taken a safety basic training course with their current or former employer are not require to take the training subject to the condition that their current employer can verify that the training covered the content required by the Regulation.
We expect that most employers provided basic OH&S training to their employees at the time when they were hired or promoted. However, we recommend that employers consider retraining all employees in the basic OH&S issues addressed by the Regulation. This will avoid questions from Ministry of Labour Inspectors about whether previous training covered all of the content referenced by the Regulation. Employers must maintain records of the training for all workers and supervisors for review by an Inspector upon demand.
We note that some of the content required by the Regulation is omitted from standard basic OH&S training courses we have reviewed over the years (particularly if they were prepared outside of the Province). For example, many basic OH&S training courses do not discuss the roles of the sector based Health and Safety Associations or spend a great deal time providing information about sources of information about OH&S.
This Regulation now explicitly requires what has always been a basic due diligence requirement. It has been our experience that many employers who work in low risk office environments often fail to include OH&S as part of their basic orientation training. This Regulation will now require all employers to specifically train new employees as soon as reasonably possible after they are hired and workers promoted to a supervisory role must be trained within one week of working as a supervisor.
One potential complexity which has not received a great deal of attention is how an employer identifies who a supervisor is. The OHSA defines a supervisor as a “…person who has charge of a workplace or authority over a worker.” Courts have interpreted this definition to mean that “lead hands” and other employees who are not members of management but who exercise some level of authority of workers are considered “supervisors” within the meaning of the OHSA.
This requires employers to consider whether “lead hands” and similar employees should be trained as supervisors. We have no doubt that providing training meant for supervisors to employees covered by a collective agreement will be very controversial with some trade unions. It raises the question of whether it increases the risk that lead hands will face prosecution as “supervisors” if an accident were to occur.
This issue is particularly important in light of the recent Roofing Medics decision which suggested that jail time may be the “new norm” for supervisors in fall protection cases in the roofing industry (read our update on that decision). The risk of jail time certainly incentivizes “lead hands” and others to avoid anything which would characterize them as a “supervisor” within the meaning of the OHSA.
