Siskinds Law Firm

What to expect from OHSA inspectors in the age of COVID-19

Employers beware, the Ontario government announced Wednesday, March 3, 2021, that it has hired over 100 additional occupational health and safety inspectors, bringing the total number of inspectors to more than 500—the largest number in Ontario’s history.  The new inspectors will be fully trained and ready to hit the ground running by July 1, 2021 and they’ll be out there checking to see whether employers are meeting their obligation to take reasonable precautions to keep employees safe from COVID-19.

In my January 15, 2021 blog post, I warned employers that the Ontario Ministry of Labour had announced it would be increasing workplace inspections.  Since the beginning of 2021:

That said, the focus of the Ministry’s workplace inspections, accordingly to the government’s press release, continues to be focused on educating small businesses on how to re-open safely from lockdown and how to operate safety in light of the COVID-19 pandemic.  As part of this education initiative, the Ministry is offering free information sessions on what you need to know to comply with COVID-19 health and safety requirements, found here.

What are Occupational Health and Safety inspectors looking for?

Inspectors are looking to ensure employers, and others, are complying with their obligations under the Occupational Health and Safety Act (the “Act”), including their obligation to take every precaution reasonable in the circumstances for the protection of a worker.  This obligation includes taking every precaution reasonable to protect workers against COVID-19 infection. 

What does reasonable in the circumstances mean during a pandemic?

It depends. At a minimum it requires employers to comply with provincial requirements and restrictions imposed under the Reopening Ontario (A Flexible Response to COVID-19) Act (and its regulations, including rules of reopening in stage 1, stage 2, and stage 3), local by-laws, local public health orders, and directives issues by the Chief Medical Officer.   

Additionally, employers should consider, among other things, implementing the following control measures, where appropriate, and importantly, evaluating and re-evaluating their effectiveness and revising the measures when necessary:

The exact control measures that must be taken depend on the workplace. For example, personal protective equipment, including a gown, face shield and procedure mask, may be reasonably necessary for a dental hygienist performing a routine cleaning; whereas, a cloth mask may be reasonable for an office worker’s trip to the washroom where social distancing is maintained. In both cases, workers should be properly trained on the type of mask they are using, its limitations and how to safely take the mask on and off. 

What kind of orders can an Occupational Health and Safety inspector issue?

Under the Act, an inspector can issue a number of orders, including, but not limited to:

Failure to comply with an order, by a person, can result in a fine of up to $100,000 and/or up to 1 year in prison. Whereas a corporation could face a fine of up to $1.5 million.

Note: the order or a report of the inspection must be posted in a conspicuous location in the workplace, and a copy must be given to the joint health and safety committee or a health and safety representative. 

The inspector issued an order – now what?

First things first, comply with the order. 

If the order is for contravention of the Act, within three days of when the employer believes they have complied with the order, they must send written notice of compliance to the Ministry. This notice must be signed by the employer and include a signed statement by a worker member of the joint health and safety committee or a health and safety representative, confirming their agreement or disagreement with the employer’s statement or a statement confirming that the member or representative has declined to sign the statement.

The notice of compliance must be posted in a conspicuous location in the workplace for fourteen days following its submission to the Ministry. 

Is there a defense?

It depends on the section of the Act the employer is said to have contravened. Where an Order has been issued to an employer for a failure to comply with section 25(1)(b)–(d) of the Act, the employer may be able to defend the order by proving that every precaution reasonable in the circumstances has been taken.

Can an employer appeal an inspector’s order?

Where an employer considers itself aggrieved by the order, they may appeal to the Ontario Labour Relations Board (the “OLRB”), within thirty days of the order being made. Information on how to appeal an inspector’s order can be found in the OLRB’s Information Bulletin No. 21: Appeals of an Inspector’s Order. An employer can also request that the order be suspended until the appeal has been decided by the OLRB.

Jennifer Herpers practices with the Siskinds Labour and Employment department. If you have questions about the information contained within this article or any other employment questions, please write to jennifer.herpers@siskinds.com or call 519.660.7830.