The Occupational Health and Safety Act: Why Professionals Should Care
By Paul Martin
Often, the Occupational Health and Safety Act is thought of as a law that is primarily of concern to construction sites and heavy factories. This is a misconception. In fact, the OHSA extends to all workplaces throughout the province.
As a result, professionals and other employers working in clinical and office settings must also take heed of the OHSA. Ignoring it invites a significant, and unnecessary risk to employers.
The OHSA governs all workplaces in Ontario, except those few that fall within federal jurisdiction. The latter are subject to Part II of the Canada Labour Code, which imposes similar obligations on employers.
Who is Impacted?
The primary purpose of the OHSA is to set out various safety responsibilities and obligations on the parties within a workplace, with a view to maintaining worker health and safety.
Unlike other statutes, the OHSA uses the word “worker,” which captures a much broader range of people than the term employee. For example, “workers” can include independent contractors, or even workers for other companies that work within a workplace controlled by another employer.
The most significant obligations under the OHSA are placed on “employers.” Employers are primarily responsible for ensuring that workplaces comply with the requirements of the OHSA.
An employer is defined as someone who contracts with a worker, rather than as an employer of employees. The definition of employer thereby captures a wide range of contracts for services, including independent contractors, even where the independent contractor may be incorporated. Indeed, in one noteworthy case, a corporation was found liable as an employer for a workplace accident despite having no employees on site, because it engaged workers through subcontractors.
Although most obligations are designed with a focus on worker safety, some provisions are also concerned with the safety of members of the public.
Obligations under the OHSA usually fall into two categories.
First, there are a number of regulations under the OHSA which apply to different types of workplaces. Employers in the workplaces in which a regulation applies must ensure that all. The rules must be met. There is no wiggle room. Employers cannot complain that the specific provision is unnecessary or too costly – they simply have to do it.
The second set of obligations is under what are generally known as “general duty clauses” which set out an employer’s obligations to make workplaces safe in ways that may not be specifically contemplated by the regulations. The most significant such clauses require that employers take all precautions reasonable for the protection of a worker, as well as ensure that workers receive information, instruction and supervision that they require to be protected in the workplace. In this way, employers are required to assess their workplaces and determine how to ensure they are safe for employees.
Many professional offices, including health care facilities, fall under the Industrial Establishments Regulation. While a dentist or doctor would (fairly) assume that they would be unlikely to be governed by the same rules that govern a car factory, in fact that is what the law requires.
The Industrial Establishments Regulation sets out a number of regulations. While many of them (such as, for example, protecting workers against falls) are unlikely to ever arise in the context of a professional office, others represent real concerns for professional offices.
- Ensuring there are no tripping hazards;
- Ensuring that a workplace’s parking lots are safe and well lit;
- Ensuring that supplies are stored in a way that will not tip or fall onto a worker;
- Ensuring that the structure of the workplace is sound;
- Ensuring that protective equipment is used; and
- Ensuring that chemicals, including medications, are properly stored.
In addition, the “general duty” clause can apply to put even more specific obligations on professional offices. This is particularly true in medical and dental offices, where bodily fluids and other medical debris may cause their own risks and hazards to workers if not properly disposed of.
The OHSA also creates procedural requirements for workplaces, including prescribing the appointment of health and safety representatives, or the creation of a joint health and safety committee, both of which involve employee representatives working collaboratively with the employer to make workplaces safer. In addition, the OHSA mandates that certain policies pertaining to workplace safety are required.
Note that obligations under the OHSA are in addition to any requirements that may be put on a practice by a regulatory college or other legislation. A professional is required to ensure that all of these obligations are met, even though they sometimes overlap.
Offences under the OHSA are extremely serious. The OHSA permits fines of up to $1,500,000 to a corporation for each offence. In addition, if an individual is convicted of an offence, fines of up to $100,000 and imprisonment for up to six months can result.
In particularly egregious cases of workplace injury and death, charges may also be laid under the Criminal Code. Such charges can result in even heavier penalties. In one noteworthy case, a site supervisor with no criminal record was sentenced to 3 years in jail for criminal negligence causing death.
Finally, Inspectors at the Ministry of Labour may be dispatched to a workplace to ensure compliance with the OHSA. The Inspectors have the authorization to issue Orders wherever they perceive a breach of the OHSA. If an employer fails to ensure that the requirements of those Orders are met, they may be liable to fines and prosecution.
How to Protect Yourself
Given the risks and possible liability involved, it is critical that all employers ensure their operations and policies comply with the OHSA. If you are running a professional office, it is important to ensure that you have health and safety policies that are up to date and compliant with the law. It is also important to ensure that those policies are reviewed by a lawyer regularly, as the world of health and safety is constantly evolving. Finally, staff must be trained on maintaining a safe workplace.
Although it is unfortunately impossible to eliminate the risk of a workplace accident, such measures will minimize that risk and will put the employer in a better position to defend itself should an unfortunate accident arise.
 Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13
 R v Kazenelson, 2018 ONCA 77