HR MANAGER’S GUIDE TO HEALTH AND SAFETY CYNTHIA K. KONTRA Filion Wakely Thorup Angeletti LLP September – November 2009 LECTURE #4 : EXTERNAL ENFORCEMENT WHMIS EXTERNAL ENFORCEMENT ROADMAP 1. Ministry of Labour (“MOL”) Inspections & Investigations 2. Potential Liabilities MOL INSPECTORS • Mandated to enforce and administer the OHSA • Experts on OHSA • Emphasis on enforcement • Work with your inspector INSPECTORS’ POWERS • Entry Generally: • Test • Ask questions • Administer • Review of employer documents • Direct Joint Occupational Health and • Inspect Safety Committee (“JOHSC”) • Seize • Investigate • Require reports • Enforce • • Stop work Issue Orders & Tickets INSPECTIONS • Lower level than investigation • Pro-active • MOL renewed focus on inspections • More and more inspections are being conducted • On MOL‟s own initiative or in response to a complaint EMPLOYER RIGHTS DURING INSPECTION • Limited, so be cooperative! • Must grant entry and access • Worker representative (JOHSC, Union Representative, etc.) has a right to accompany Inspector: Employer does not! INVESTIGATIONS • Reactive • More focused than Inspections • Designed to determine cause of an event WHEN INVESTIGATIONS OCCUR • Workplace accident • Work Refusal • Health and Safety Complaint to MOL • Concern with designated substances • JOHSC not functioning properly DOCUMENTS, RECORDS, AND PROPERTY • Production of records, reports, drawings, documents • Professional reports – employer bears the cost • Making copies • Get a receipt • Remove items for testing off- site ORDERING WORKPLACE TESTS • Testing to determine safety • Shut-down equipment to test • Order new safety precautions (e.g. guarding) • Sometimes, off-site expert testing is required PRESERVE THE WORKPLACE • Inspector orders the workplace preserved for testing, inspection, or investigation • Usually for circumscribed time period • Inspector should grant reasonable and legitimate requests to resume operations • Fatality or critical injury, do not disturb until order is lifted OBSTRUCTING THE INSPECTOR • Don‟t! • An offence to obstruct, hinder, molest, or interfere • An offence to tamper with equipment, devices, etc. • You must cooperate • You must disclose • You must speak to the Inspector (unless you get to the caution stage) EXTERNAL ENFORCEMENT ROADMAP REVISITED 1. MOL Inspections & Investigations 2. Potential Liabilities 1. Orders 2. Ticketing 3. Prosecutions 4. Bill C-45 INSPECTORS’ ORDERS • Power to issue orders against any stakeholder • Inspector must believe that OHSA is being contravened • Orders may be verbal or written (even verbal are later confirmed in writing) ORDERS • Issued where immediate health and safety risk exists • Not necessary to have input from the employer or other stakeholders, but it is usually sought • Provide notice and location of contravention • Section of OHSA that is contravened • Time for compliance • Nature of the order is posted in the workplace • Complainant receives a copy, where applicable ORDERS If contravention of OHSA is dangerous to the health and safety of the worker Inspector may order: • Equipment not to be used • Work to be stopped • Workplace to be cleared of workers WHEN THE EMPLOYER RECEIVES AN ORDER • Notify MOL within 3 days of the date the employer believes the Order has been complied with • Sign the notice • Need a signed statement from worker representative, either agreeing or disagreeing, or advising that the worker representative refuses to sign • Post the Order and Notice of Compliance for 14 days • Notice of Compliance does not necessarily equal compliance WHY YOU SHOULD COMPLY • Orders are enforceable in court • Orders can lead to a court order restraining the contravention • Fines • MOL prosecutions APPEALS • You can appeal an Order and its contents • You can appeal a decision not to issue an order • Appeals are made to the Ontario Labour Relations Board (“OLRB”) • Appeal to try and get an Order off your record HOW TO APPEAL • Notice of Appeal is filed with the OLRB within 30 days of the Order • Time limits may be extended in some circumstances • In person, in writing or via telephone to the MOL • Provide necessary information: Nuts „N‟ Bolts EXTERNAL ENFORCEMENT ROADMAP REVISITED 1. MOL Inspections & Investigations 2. Potential Liabilities 1. Orders 2. Ticketing 3. Prosecutions 4. Bill C-45 INTRODUCTION TO TICKETING • Ticketing: – Less formal way of charging an individual or corporation than laying an information – Industrial and construction workplaces – Examples of offences: • Failure to ensure a safe work surface • Failure to have appropriate guarding • Failure to wear protective devices Set fines of $195 or $295 plus 25% victim surcharge EMPLOYER’S OPTIONS FACING A TICKET • Options if Issued a Ticket: – Plead guilty and pay the set fine – Request a trial, plead guilty at trial and make submissions as to penalty – Request a trial and defend against the alleged offence CONSEQUENCES OF GUILT • Potential Consequences: – A finding or pleading of guilt goes to the prior “record” of the employer – Convictions can be used to justify higher penalties for subsequent serious offences EXTERNAL ENFORCEMENT ROADMAP REVISITED 1. MOL Inspections & Investigations 2. Potential Liabilities 1. Orders 2. Ticketing 3. Prosecutions 4. Bill C-45 PROSECUTIONS – AN OVERVIEW – Traditional method of enforcement – Information laid under Part III of the Provincial Offences Act – Maximum fine for corporations: $500,000 – Maximum fine for individuals: $25,000 – Individuals can also face up to 12 months in prison – Directors and Officers also liable WHEN DOES MOL PROSECUTE • Follows Ministry of Labour Inspection or Investigation, where OHSA or Regulations have been violated • Always follows the laying of charges • Ministry of Labour – Legal Branch decides whether to prosecute • OHSA prosecutions are different from and in addition to Bill C-45 criminal prosecutions THE POA • The process is governed by the Provincial Offences Act • POA deals with procedural issues such as laying an information, arraignment, entering a plea, subsequent amendments to charges, conduct of the trial, disposition of the judgement and appeals • POA provides uniformity to the process PROSECUTION TIME LIMITS • One-year limitation period for the MOL to lay charges • MOL often does an extensive investigation; therefore, charges often are not laid until near the end of the one-year limit • Because of the delay, it is important to act quickly on any MOL recommendations (before charges are laid) HOW DO PROSECUTIONS WORK? • Commence by laying • The trial is held in front an Information of the Justice of the • A summons is issued Peace or a Provincial to the accused, Court Judge providing time, date • At the arraignment and location of the first stage the alleged court appearance offender enters a plea • At first appearance, (guilty or not guilty time and date of trial is set and other pre-trial issues determined RULES OF EVIDENCE • Evidentiary rules are a very important component of the OHSA prosecution • Technical aspects of the trial • Governed by the Ontario Evidence Act, the Canadian Charter of Rights and Freedoms, and the Common Law RIGHT TO COUNSEL • Charter right to obtain and instruct counsel without delay after detainment or arrest • Applies to all agents of the Crown – MOL Inspectors included • Inspectors have no power to arrest, but may detain during an inspection or investigation DETENTION Detention occurs whenever: • a person is physically constrained by an agent of the Crown • an agent of the Crown assumes control over a person through a demand or direction that may have significant legal consequences and prevents that person‟s access to legal counsel • a person submits to the taking away of his/her liberty due to a reasonable belief that the choice to do otherwise does not exist Anyone detained is entitled to counsel. DUTIES OF CROWN AGENT – Inform detainee of right to retain counsel without delay – Inform detainee of the reasons for the detention – Provide detainee with opportunity to retain counsel, if requested – Allow detainee reasonable amount of time to consider whether or not to exercise above right Failure by the Crown Agent to follow the above steps may result in any evidence obtained through the detainee being declared inadmissible in court CROWN DISCLOSURE • The accused has a right to receive, within a reasonable time before trial, full and complete disclosure of the Crown‟s case • Disclosure requires the Crown to make available the entire prosecution file, including any information regarding Crown witnesses and what they are anticipated to say • This right is recognized by the Charter, POA and Common Law PURPOSE OF CROWN DISCLOSURE • Ensures that the Defence is aware of the case in chief of the prosecution and all of their relevant evidence • Helps resolve non-contentious and time consuming issues and advance the preliminary hearing or trial in order to more efficiently use the courts‟ time • Encourages resolution of cases including, if appropriate, the entering of guilty pleas at an early point in the proceedings • Important note: Crowns‟ obligation to disclose is ongoing • Failure to disclose all relevant information may result in a postponement, adjournment, or a mistrial ONUS • Onus of proof rests with Crown • Crown must prove “beyond a reasonable doubt” that all of the elements of the offence have been met • If the accused is able to establish “reasonable doubt” as to any element of the charge, then the accused is acquitted and the charges are dismissed • Reasonable doubt is usually raised through evidence of witnesses RIGHT TO REMAIN SILENT • Only exercisable to avoid self-incrimination when witness is not testifying in court • Once a witness is called to testify in court and under oath, the right to remain silent is gone • A witness, including the accused, cannot refuse to answer a question because it may incriminate them • Under the Charter, self-incriminating evidence given by the witness cannot be used against the witness, except in a perjury prosecution • Witness answers in court cannot be used in any subsequent civil proceeding COMPELLABILITY OF THE ACCUSED • The accused cannot testify against himself or herself • Therefore, the Crown prosecutor cannot call the accused as a witness PUBLIC DOCUMENTS • Public documents are admissible on their own as evidence, without proof • Public documents are those which are for the benefit of the public and which the public has a right to see • Document must be written statement of a public official/officer made in the course of carrying out public duties • Must be in respect of what the public official has a duty to record • Admissible without proof because of the presumption that public officials will act honestly and in accordance with their mandate BUSINESS RECORDS • Admissible, per se, if they are made in the usual and ordinary course of the conduct of business and it was in the usual and ordinary course of such business to make such a document • This is an evidentiary efficiency rule, as the creator of the business record does not have to called as a witness to prove the business record before it is admissible • One proviso: Party intending to use a business record must give 7 days notice under the Evidence Act to the other parties and produce the business record for inspection within 5 days of giving notice • Failure to comply with the time limits may result in the business record not being admitted into evidence BUSINESS RECORDS Even if time limits not complied with or where business record was not made in the ordinary course of business, it may still be admitted if: – The business record was made contemporaneously with the event recorded – The business record must have been made by someone with personal knowledge of the matter – The business record must have been made by someone under a duty to make it MEDICAL RECORDS • Doctors and medical professions are generally not required to come to court to testify • In their absence, medical records may be admitted • Parties seeking to rely on the medical record must obtain leave from the court and give 10 days notice to the other parties before their medical record can be used • Medical records must be signed by a legally qualified doctor licensed to practice in Canada PRIOR CRIMINAL CONVICTIONS • Evidence of prior criminal convictions goes only to the credibility of the accused and not to proof of the alleged offence • Generally, the Crown can only raise prior convictions if the accused testified or if the accused character has been put in issue through other witnesses • Prior charges that do not result in a conviction cannot be raised by the Crown STATEMENTS AND CONFESSIONS • Statements and confessions are subject to certain rules before they can used as evidence • Under the Common Law, statements must be given “voluntarily” to a “person in authority” PERSON OF AUTHORITY • There is no precise definition for “authority” • Usually someone involved in the arrest, detention, examination or prosecution of the accused • Likely includes a Ministry of Labour Inspector • Court uses a subjective test to determine if someone is a person of authority • Therefore, court looks at the accused‟s perception of the situation • If the accused believes that the person they are speaking with is a person of authority, then that person is generally considered a person in authority VOLUNTARY STATEMENTS • Crown must prove beyond a reasonable doubt that a statement was voluntary before they can use it • Statements generally will be ruled involuntary and inadmissible when the statement was: – Made as a result of fear or prejudice or hope of advantage – The accused did not possess an operating mind – Made as a result of oppression or threats OTHER SITUATIONS WHERE STATEMENTS ARE NOT VOLUNTARY • Witness intoxication • Oppressive environment • Interrogation of children • Failure to provide adequate caution before questioning the witness • Questioning which is similar to cross-examination • Questioning without the consent of counsel The above situations could lead to a finding that a statement was made involuntarily and is therefore inadmissible DEFENCES • Procedural • Substantive • Due Diligence • Officially Induced Error PROCEDURAL • Often raised at the outset of a trial • May result in the dismissal or stay of the charges • Include the timeliness of the trial or investigation and delays within the process • Under the Charter, the accused has a right to a trial within a reasonable amount of time • Abuse of process SUBSTANTIVE • Defences that go to the heart of the allegation, and involve a factual or legal determination of guilt or innocence • Depend on the facts and circumstances of each case • “Proof of the offence” defence: If the Crown has not proven its case, which by itself would be a complete defence to the charge. Remember, the Crown has the onus of proving its case beyond a reasonable doubt and failure to do so results in no conviction “DUE DILIGENCE” • Another example of a substantive defence • Only available in response to specific offences set out in S. 66(3) of the OHSA • Under a due diligence defence, must argue that the accused did everything it had to do in order to comply with the law • The incident would have to be merely an accident “OFFICIALLY INDUCED ERROR” • Another substantive defence • The Crown argues that they were following the advice of the Ministry of Labour Inspector • Prosecution for following erroneous advice would be unfair • Accused must prove on a balance of probabilities that they were mislead by the MOL Inspector and the reliance was responsible for their alleged breach • However, accused must show that the advice that was sought and given by the MOL Inspector was both reasonable in the circumstances and reasonable to follow the facts of the case VERDICT & SENTENCING • After hearing all of the evidence and the submissions of the parties the court will render a verdict • If the accused is found guilty, the trial judge will hand down a sentence • The verdict and sentence of the court is final and binding on all parties, subject to any appeal NOT GUILTY Ends the process, subject to the prosecution‟s right to appeal GUILTY • If a guilty verdict is found, the court may hear further submissions and evidence regarding the appropriate sentence • When contemplating the appropriate sentence, the trial judge considers: deterrents, retribution, rehabilitation/reform • Sentences for health and safety offence seek to improve working conditions where the offences occurred REHABILITATION MODEL • Trial judge may impose rehabilitative measures such as safety training • Most sentences seek to improve workplace conditions through fines • Theoretically, a stiff fine acts as a deterrent MAXIMUM FINES • For an individual: $25,000 per count • For a corporation: $500,000 per count • Individuals could also receive jail sentences of up to 12 months • Case could have multiple counts = larger overall fines SUBJECTIVE FACTORS CONSIDERED IN SENTENCING • In making a determination on fines, the court considers mitigating and aggravating factors • Following conviction or a plea agreement, it is up to the employer to convince the court that there are sufficient mitigating factors to warrant a lower fine • Good safety history and track record of responsiveness in dealing with MOL orders may result in a lower fine • History of non-cooperation with the Ministry could result in a higher fine FINES • Public perception or reaction to the case may play a role in encouraging the Crown to request a higher fine • Horrific injuries, younger workers, level of sophistication of the employer, all contribute to the size of the fine FINES: SPECIFIC FACTORS • Employer size • Number of employees • Previous conviction record, including tickets • Contributory negligence on the part of the injured worker RECENT HISTORY • MOL has launched a • Check the Court more aggressive Bulletins on the MOL media campaign to website: highlight increased http://www.labour.gov fines received by .on.ca/english/ employers when convicted under the OHSA EXTERNAL ENFORCEMENT ROADMAP REVISITED 1. MOL Inspections & Investigations 2. Potential Liabilities 1. Orders 2. Ticketing 3. Prosecutions 4. Bill C-45 CORPORATE LIABILITY BILL C-45 Employers must take proactive steps to reduce the risk of serious or critical accidents in the workplace! REDUCING THE RISK OF CORPORATE LIABILITY Compliance Program Evidence of + = Due Diligence and Mitigating Factor Health & Safety Policy REVIEW OF BILL C-45 • Criminal liability • Organizations defined • “Directing minds” of organizations • Increased consequences if guilty • Individual liability for criminal negligence • Potential for parallel OHSA prosecutions DUTIES OF OFFICERS AND DIRECTORS • Directors and officers comprise the “directing mind” of the employer • The OHSA states that every director and every officer of a corporation shall take all reasonable care to ensure that the corporation complies with, – OHSA and its regulations – Orders and requirements of inspectors and Directors, and – Orders of the Minister • What does this mean in practice? REVIEW OF EMPLOYER DUTIES • Duty to take all reasonable precautions to protect the health and safety of those workers under their charge • Provide information, instruction and supervision to worker to protect their health and safety • Appoint “competent persons” as supervisors • Acquaint a worker or a person in authority over a worker with any workplace hazards • Post a copy of the OHSA and appropriate regulations in the workplace TRANSPAVÉ INCORPORATED • First successful prosecution under Bill C-45 • Worker crushed after equipment guards disabled • Inadequate safety training • No written work procedures • Management knew and did nothing • Fines of $100,000 + $10,000 for criminal negligence causing death COMPETENT PERSONS • Supervisors generally • Competent Persons who are not supervisors • Right to enforce directions/instructions • Off-hours issues • Emergency contact system POLICIES, PROGRAMS AND PRACTICES • Prepare a written health and safety policy – Must review the policy annually – Must post the policy in the workplace • Develop a health and safety program to implement the health and safety policy • Assist the JHSC to carry out its functions • Do not engage in reprisals • Prescribed duties & accident reporting duties COMPLIANCE PROGRAM • As the company‟s “directing mind”, directors and officers must promote safe workplace practices • A key element will be a compliance program • The compliance program should target activities that may attract criminal liability: – Health and safety infractions – Environmental issues – Corporate accountability concerns CREATING AN EFFECTIVE COMPLIANCE PROGRAM • Appoint a compliance office to administer and monitor the compliance program • Focus on educating and training employees, agents and contractors – Ensure they understand the employer‟s commitment to promoting a safe and healthy workplace • Ensure that all managerial and supervisory personnel understand their “duty of care” – To stop/prevent the commission of criminal offences APPLICATION OF AN EFFECTIVE COMPLIANCE PROGRAM • Implement or improve occupational health and safety management and practices • Develop a written health and safety policy • Ensure that the policy is regularly updated and distributed to employees • Reinforce safe practices through discipline and performance appraisals WHMIS WORKPLACE HAZARDOUS MATERIALS INFORMATION SYSTEM (WHMIS) WHMIS BACKGROUNDER • Rationale: Workers have a right to know about the health and safety hazards associated with hazardous chemicals and materials in the workplace • Response: A Canada-wide information system about hazardous materials in the workplace • WHMIS Aims: To stop injuries, illnesses, deaths, medical costs and other safety hazards caused by hazardous materials APPLICATION OF WHMIS • Applies to “controlled products” – Products, materials and substances – Meet the hazard criteria in the Controlled Products Regulations under the federal Hazardous Products Act • Six categories of controlled substances – Compressed gas – Flammable & combustible material – Oxidizing material – Poisonous and infectious material (3 sub-categories) – Corrosive material – Dangerously reactive material PROVIDING INFORMATION ON CONTROLLED PRODUCTS • Three methods of providing information: – Labels on the containers of controlled products – A Material Safety Data Sheet to supplement the label – Worker education program • Controlled product supplier provides label and MSDS to the employer – The employer passes on the information to the workers and provides education programs WHMIS COVERAGE Federal Legislation Provincial Legislation • Main Purpose: to require • Main Purpose: to require suppliers of controlled employers to obtain health products to provide health and safety information about and safety information as a controlled products and to condition of their sale or pass on this information to importation employees • Application: Federally • Application: Provincially regulated employers regulated employers Framework of the WHMIS information protection process is primarily governed by the federal legislation FEDERAL WHMIS LEGISLATION • Creates universal requirements for the production, sale and importation of controlled products • Controlled products must be effectively identified by suppliers and employers – Standardized classification criteria – Statutes focus on suppliers IMPLEMENTING LEGISLATION (FEDERAL) Hazardous Products Act – All suppliers who sell or import hazardous materials – Must provide labels and MSDS to customers • Controlled Products Regulations – Defines controlled substance – Information requirements for labels and MSDS • Ingredient Disclosure List – Lists chemicals which must be identified on an MSDS IMPLEMENTING LEGISLATION (FEDERAL) (cont’d) Hazardous Materials Information Review Act – Creates “HMIR Commission” – Federal agency to review information disclosure exemption claims • Hazardous Materials Information Review Regs. – Sets out criteria to assess validity of exemption claim Canada Labour Code – Canadian Occupational Safety and Health Regs. IMPLEMENTING LEGISLATION (PROVINCIAL) • Based largely on federal rules uniformity – Provinces draft regulations to reflect their own local economic concerns • Ontario‟s implementing legislation: – The OHSA – imposes duties upon employers to: • Obtain or provide labels and MSDS • Provide worker education programs – The WHMIS Regulation MAIN COMPONENTS OF WHMIS • Designation of hazardous materials • Assessment of biological and chemical agents • Worker training and education • Supplier and workplace labels • Material safety data sheets (“MSDS”) • Protection of confidential business information – Disclosure of confidential business information in medical emergencies CONTROLLED PRODUCT EXEMPTIONS (ONTARIO) Fully Exempted Controlled Products • Wood and wood products • Manufactured articles • Tobacco or tobacco products • Controlled product covered by: – Transportation of Dangerous Goods Act (federal) or – Dangerous Goods Transportation Act (provincial) CONTROLLED PRODUCT EXEMPTIONS (ONTARIO) Partially-Exempted Controlled Products • Explosives (Explosives Act) • Cosmetics, drugs, food, devices (Food & Drugs Act) • Pest control products (Pest Control Products Act) • Radioactive materials (Atomic Energy Control Act) • Material packaged as a consumer product and in quantities normally used by the consuming public EMPLOYER DUTIES FOR PARTIALLY-EXEMPTED PRODUCTS • Not required to obtain a supplier label or MSDS • Must ensure that the products are labeled with a label that meets the workplace label requirements • Must provide worker training with respect to these types of products HAZARDOUS WASTE • Hazardous Waste: a controlled product that is intended for disposal or sold for recycling/recovery • WHMIS regulation has limited application to hazardous waste • Employer must identify all containers of hazardous waste stored on site – Must also train workers regarding safe storage, handling • Workplace label or MSDS not required SUPPLIERS’ WHMIS DUTIES • Supplier: one who manufactures, processes, packages, sells or imports a hazardous material • Duties set out in federal Hazardous Products Act and its Controlled Products Regulations – Classification of hazardous materials – To label all controlled products as a condition of sale or importation – To provide MSDS for controlled products as a condition of sale or importation CLASSIFICATION • WHMIS has classes and symbols to describe general types of dangerous materials • Each class is defined by the nature and degree of the hazard present in each controlled product – Defined by the Controlled Products Regulations • Supplier must determine if product sold or imported is classified as a controlled product – Must compare the product‟s characteristics to the criteria outlined in the Controlled Products Regulations THE SIX WHMIS CLASSES Class A: Compressed Gas Class B: Flammable and Combustible Material Class C: Oxidizing Material Class D, Div. 1: Poisonous & Infectious Material: Immediate & Serious Toxic Effects Class D, Div. 2: Poisonous & Infectious Material: Other Toxic Effects Class D, Div. 3: Poisonous & Infectious Material: Biohazardous Infectious Material Class E: Corrosive Material Class F: Dangerously Reactive Material LABELS • WHMIS imposes duty to label controlled products – Applies to products that are made, imported, packaged or processed • Imposes set of standard product identifiers, hazard symbols and precautionary and first aid measures • Label can be any mark, sign, device, stamp, seal, sticker, ticket, tag or wrapper REQUIRED LABEL INFORMATION • Product name • Name of supplier • MSDS reference • Hazard symbols • Risk phrases (describe hazardous properties) • Precautionary measures for handling, use • First aid measures • Note: abbreviated label permitted for 100mL or less MATERIAL SAFETY DATA SHEETS • All suppliers are required to prepare an MSDS for controlled products • Technical summary of health and safety info • Factual information about harmful ingredients • Guidance in the use and disposal of the product • The MSDS must be made available to workers in the workplace for reference • An MSDS has several required sections MSDS REQUIRED SECTIONS • Product information The MSDS must also include • Hazardous ingredients any other hazard information about which the • Physical data supplier is aware or ought to • Fire or explosion hazard be aware • Reactivity data The MSDS must be up to date • Toxicological properties – the supplier must update and • Preventative measures review the MSDS as required • First aid measures • Preparation information EMPLOYERS’ WHMIS DUTIES • Set out in the OHSA and the WHMIS regulations • An employer that is in charge of a worksite where controlled products are present must: – Ensure that the controlled products are labeled or identified – Obtain or provide MSDS for controlled products – Educate workers LABELING AND IDENTIFICATION • Must ensure that every product has a supplier label – If the supplier label is faulty, contact supplier for new label and safely store product in the meantime – If cannot obtain new label from supplier, contact MOL • Supplier label cannot be removed, changed or destroyed until the container is empty – If the supplier label tampered with, must replace it – Suppliers typically send extra labels – Otherwise, the employer may attach a “workplace label” WORKPLACE LABELS • Must contain the following information – The identity of the product (naming) – Information for the safe handling of the product • Pictures, words, symbols may be useful • Workers must understand the risks, be aware of the precautions – A statement that the MSDS, if supplied or produced, is available for the workers to review • Requirements for workplace labels more general than federal requirements for supplier labels MSDS FOR CONTROLLED PRODUCTS FROM SUPPLIERS • Must obtain an MSDS from the supplier on or before the first shipment of the controlled product – If cannot obtain MSDS, the employer may store but cannot use the product until it obtains an MSDS – If supplier cannot provide an MSDS, the employer must notify the MOL in writing • MSDS expires three years after publication date – If it expires, must try to obtain a valid one from supplier – Otherwise, must make reasonable effort to update MSDS MSDS FOR CONTROLLED PRODUCTS MADE IN THE WORKPLACE • Must prepare an MSDS for controlled products produced in the workplace • Employer MSDS requires same information as the supplier MSDS • Must update MSDS every three years – If new information available, must update within 90 days • Must make copies of the MSDS available to workers, JHSC or to H/S representative WORKER EDUCATION • Goals of a successful education program: – Providing workers with the ability to use safe procedures when handling a controlled product – Providing workers with an understanding of why such procedures are necessary • Employer must consult with JHSC or H/S representative in creating and delivering training • Employer must pass along any information it knows or ought to know about a controlled product ELEMENTS OF EDUCATION PROGRAM • Labels: information, purpose, significance • MSDS: information, purpose, significance • Procedures for the safe use, storage, handling and disposal of a controlled product • Procedures to be followed where fugitive emissions are present • Procedures to be followed in case of an emergency involving a controlled product WORKER TRAINING • Must train all workers who are exposed or likely to be exposed to a controlled product • Then, the employer must try to determine whether the worker understands and can apply the training – Written or oral examinations, practical demonstrations – If worker fails, simply retrain him or her • The employer should review WHMIS programs – Annually, or – Whenever changes involving controlled products occur WORKERS’ WHMIS DUTIES • Workers have a duty to report any violations of the OHSA or the WHMIS regulation • Worker should inform the employer if they believe that they, or other workers, lack sufficient training regarding controlled products WHMIS ENFORCEMENT • Ministry of Labour enforces both the federal and provincial WHMIS legislation – Two different levels of inspections and orders • Check for proper and current labels and MSDS on controlled products • Inspect education and training programs • Monitor WHMIS compliance during regular visits, investigations CONSEQUENCE OF FAILURE TO COMPLY WITH WHMIS • MOL may issue an order to correct violation – May also stop the use of a particular controlled product • Penalties for WHMIS violations are the same as for other OHSA violations: – Individuals: $25K maximum fine, max. 12 mos. in jail – Corporations: $500K maximum fine TOXIC SUBSTANCES TOXIC SUBSTANCES • Definition: a biological, chemical or physical agent (or combination) whose presence or use in the workplace may endanger a worker‟s health or safety • Control of toxic substances is governed by: – The designated substance regulations under the OHSA – The Control of Exposure to Biological or Chemical Agents regulation – Ministry of Labour orders DESIGNATED SUBSTANCES REGULATION • Applies if there is a likelihood of exposure to a designated substance at any level • Sets out the amount of designated substance to which workers can be exposed in a given time period • Provides ways to control and measure the substance in the workplace THE DESIGNATED SUBSTANCES • Acrylonitrile • Isocyanates • Arsenic • Lead • Asbestos (2 regulations) • Mercury • Benzene • Silica • Coke oven emissions • Vinyl chloride • Ethylene oxide ASSESSING DESIGNATED SUBSTANCES • If the designated substance regulation applies, the employer must perform an assessment • Require consultations with JHSC or H/S rep. • Questions to ask: – In what way is the designated substance present? – How do workers handle, store, process the substance? – Worker exposures and response/control mechanisms? • Must be in written form, distributed to JHSC members or H/S representative CONTROL PROGRAMS • Required if the assessment finds that a designated substance may affect a worker‟s health • Control program is achieved through the following: – Engineering controls, work practices, hygiene control – Monitoring procedures – Personal worker exposure records – Medical examinations and surveillance – Training programs CONTROL OF EXPOSURE TO BIOLOGICAL OR CHEMICAL AGENTS REGULATION • Unlike the Designated Substances Regulation, the CEBCAR deals with many substances at once • CEBCAR sets limits for a wide range of hazardous agents found in the workplace: – Time-Weighted Average Exposure Value – Short Term Exposure Value – Ceiling Exposure Value – S.K.I.N. • Levels must be achieved without protective devices CONTROL OF EXPOSURE TO BIOLOGICAL OR CHEMICAL AGENTS REGULATION (cont’d) • Places positive duty on all employers to ensure that all measures are taken to reasonable protect workers from exposure to a hazardous agent – Construction employers exempted QUESTIONS?
Pages to are hidden for
"Restraining Order Dismissal Ca"Please download to view full document