3.1 Ontario Occupational Health and Safety Act (OHSA) & Worker Rights

Ontario Occupational Health and Safety Act (OHSA) & Worker Rights

Occupational health and safety legislation in Ontario establishes a comprehensive legal framework designed to prevent workplace accidents, injuries, and occupational diseases. For engineering technicians, technologists, and technical managers, compliance with the Occupational Health and Safety Act (OHSA) is not merely an operational policy but a strict statutory obligation carrying substantial quasi-criminal liability.

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Purpose and Philosophy of the OHSA

Enacted following the landmark 1976 Ham Commission Report on the Health and Safety of Workers in Mines, the OHSA establishes public policy priorities centered on worker protection. The Act applies to most provincially regulated workplaces in Ontario. It does not apply to work done by the owner or occupant of a private residence (or their domestic servant) in or about that residence, and federally regulated undertakings (such as interprovincial transport, telecommunications, and aeronautics) fall under the Canada Labour Code instead.

The Internal Responsibility System (IRS)

The philosophical foundation of the OHSA is the Internal Responsibility System (IRS). The IRS posits that workplace hazards are identified and mitigated most effectively when all parties within the organization collaborate actively to resolve health and safety concerns. Under the IRS:

1. Proportional Responsibility: Every individual within a workplace shares responsibility for occupational health and safety, directly commensurate with their degree of operational authority and control.
2. Integration with Production: Safety is not treated as an external administrative task; it is integrated directly into daily operational processes, engineering design, and equipment maintenance.
3. Active Partnership: Frontline workers, operational supervisors, and corporate executives form overlapping lines of accountability, ensuring that safety concerns are addressed at the lowest possible operational level before escalating to external regulatory intervention.

Crucially, the IRS does not dilute employer accountability. While workers and supervisors carry active safety duties, executive management retains overarching legal responsibility for establishing, resourcing, and auditing the system.

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Tripartite Statutory Duties

The OHSA assigns distinct, mandatory legal duties across three organizational tiers: employers, supervisors, and workers.

Duties of Employers (Section 25)

An employer is defined broadly as a person or corporate entity who employs one or more workers or contracts for the services of one or more workers. Under Section 25, employers must:

• Provide all equipment, materials, and protective devices prescribed by regulations and maintain them in good condition.
• Ensure that prescribed measures and procedures are carried out in the workplace.
• Establish and review, at least annually, a written occupational health and safety policy, and develop a program to implement that policy (mandatory for workplaces with 6 or more regularly employed workers).
• Provide information, instruction, and competent supervision to protect worker health and safety.
• Appoint competent persons as supervisors.
• Take every precaution reasonable in the circumstances for the protection of a worker (the General Duty Clause, s. 25(2)(h)).

Duties of Supervisors (Section 27)

A supervisor is defined under Section 1 as a person who has charge of a workplace or authority over a worker. This includes engineering leads, project managers, laboratory directors, and field superintendents. Under Section 27, a supervisor must:

• Ensure that workers comply with the Act and regulations.
• Ensure that required equipment, protective devices, and personal protective clothing are used or worn by workers.
• Advise workers of any potential or actual danger to their health and safety of which the supervisor is aware.
• Provide written instructions detailing safety measures where prescribed.
• Take every precaution reasonable in the circumstances for the protection of a worker (s. 27(2)(c)).

Duties of Workers (Section 28)

Workers are not passive recipients of safety protocols; they carry proactive statutory responsibilities. Under Section 28, a worker must:

• Work in compliance with the provisions of the Act and regulations.
• Use or wear the equipment, protective devices, and clothing mandated by the employer.
• Report to their supervisor or employer the absence of or defect in any equipment or protective device.
• Report to their supervisor or employer any known hazard or regulatory contravention.
• Never remove or alter any protective device without providing an adequate temporary protective device, which must be restored immediately upon job completion.
• Never operate any machine or conduct work in a manner that endangers themselves or any other worker, and refrain from rough and boisterous conduct, horseplay, or contests.

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The Three Fundamental Worker Rights

To balance managerial control and guarantee worker agency under the IRS, the OHSA enshrines three fundamental worker rights.

                                THE THREE WORKER RIGHTS
                                           │
         ┌─────────────────────────────────┼─────────────────────────────────┐
         ▼                                 ▼                                 ▼
   RIGHT TO KNOW                  RIGHT TO PARTICIPATE               RIGHT TO REFUSE
  • Hazard identification        • Joint Health & Safety Comm.      • Unsafe work refusal (s. 43)
  • WHMIS 2015 / GHS rules         (JHSC: 20+ workers)              • Two-stage investigation
  • Safety Data Sheets (SDSs)    • Safety Rep (6-19 workers)        • Certified stop-work powers
  • Worker safety training       • 21-day employer response         • Reprisal protection (s. 50)

1. The Right to Know

Workers have the right to be informed about all physical, chemical, biological, and ergonomic hazards present in their workplace. This right is operationalized through the Workplace Hazardous Materials Information System (WHMIS), which incorporates the Globally Harmonized System of Classification and Labelling of Chemicals (GHS):

• Hazard Classification: Identifying physical risks (flammability, explosive potential, pressure) and health hazards (toxicity, carcinogenicity, respiratory sensitization).
• Standardized Labels: Supplier and workplace labels displaying standardized pictograms, signal words ("Danger" or "Warning"), hazard statements, and precautionary statements.
• Safety Data Sheets (SDSs): Standardized 16-section technical documents detailing substance composition, physical properties, handling instructions, exposure limits, toxicological data, and firefighting procedures. SDSs must be easily accessible to all workers in both physical or electronic form.
• Education and Training: Employers must ensure workers receive general WHMIS training on hazard classes and site-specific training on safe storage and handling.
• Two Levels of Law: WHMIS is a shared federal-provincial system. The federal Hazardous Products Act and Hazardous Products Regulations (which replaced the older Controlled Products Regulations when WHMIS 2015 adopted the GHS) govern what suppliers must label and disclose before a product is sold or imported. Ontario's WHMIS regulation under the OHSA (R.R.O. 1990, Reg. 860) governs what employers must do in the workplace: workplace labels, access to safety data sheets, and worker education.

2. The Right to Participate

Workers have the right to participate actively in the identification, evaluation, and resolution of workplace health and safety concerns. This right is realized through representation structures:

• Health and Safety Representative: Mandatory in workplaces where 6 to 19 workers are regularly employed. The representative is chosen by workers (or their union) and possesses statutory inspection and inquiry powers.
• Joint Health and Safety Committee (JHSC): Mandatory in workplaces where 20 or more workers are regularly employed, or where a designated substance regulation applies. Key rules include:
  • Composition: Workplaces with 20 to 49 workers must have at least 2 committee members; workplaces with 50 or more workers must have at least 4 members. At least half the members must be non-managerial workers chosen by fellow workers or the union.
  • Certified Members: At least two members—one representing workers and one representing management—must be certified through Ministry-approved training (Part 1 Foundations and Part 2 Workplace Hazard Analysis).
  • Powers: Conduct monthly physical inspections of the workplace, obtain operational and chemical information from the employer, investigate critical injuries, and submit formal written recommendations.
  • Employer Obligation: Employers must provide a detailed written response to formal JHSC recommendations within 21 calendar days, detailing an implementation timeline or comprehensive reasons for disagreement.
  • Work Stoppage Powers: Certified members have authority under Sections 45–47 to direct bilateral work stoppages where dangerous circumstances pose an immediate threat. If an employer recklessly circumvents compliance, the Ontario Labour Relations Board (OLRB) may grant unilateral work stoppage power to a certified worker member.

3. The Right to Refuse Unsafe Work

Section 43 grants workers the statutory right to refuse to perform work where they have reason to believe that equipment, physical workplace conditions, or workplace violence poses a danger to themselves or others. Certain professions with public protective duties (police officers, firefighters, correctional officers, and healthcare personnel) have restricted refusal rights where the hazard is inherent to the work or refusal directly imperils public safety.

The Two-Stage Work Refusal Process

1. Stage 1 (Internal Investigation):
   • The worker promptly reports the refusal and its specific reasons to the supervisor.
   • The worker moves to a safe location near their workstation.
   • The supervisor investigates immediately in the presence of the refusing worker and a worker JHSC member (or certified worker/safety representative).
   • If the issue is resolved or the hazard eliminated, the worker returns to duty.
2. Stage 2 (External Ministry Investigation):
   • If the worker continues to have reasonable grounds to believe the work remains unsafe, the refusal continues.
   • The employer, worker, or representative must immediately notify an inspector from the Ministry of Labour, Immigration, Training and Skills Development (MLITSD).
   • Pending the inspector's arrival, the worker remains in a safe location. The employer may reassign the worker to reasonable alternative work or provide other instructions.
   • The employer cannot reassign the refused work to another worker unless that substitute worker is first informed of the refusal, the underlying safety concerns, and the ongoing investigation in the presence of a worker JHSC representative before accepting.
   • The MLITSD inspector conducts an on-site investigation accompanied by the worker, supervisor, and worker representative, and issues a written ruling either ordering corrective modifications or determining that the work is safe.

Protection Against Reprisals (Section 50)

Under Section 50 of the OHSA, an employer cannot dismiss, suspend, discipline, intimidate, coerce, or impose any financial penalty on a worker because the worker acted in compliance with the Act, exercised their statutory rights, or provided evidence in regulatory proceedings. In any hearing before the OLRB, the legal burden of proof lies upon the employer (reverse onus) to demonstrate that the disciplinary action was entirely unrelated to the exercise of occupational health and safety rights.

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Workplace Violence and Workplace Harassment (Bill 168)

Amendments introduced under Bill 168 incorporated explicit protections against workplace violence and workplace harassment into the OHSA:

• Workplace Violence: The exercise of physical force by a person against a worker that causes or could cause physical injury, or an attempt/statement reasonably interpreted as a threat to exercise physical force.
• Workplace Harassment: Engaging in a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome, including workplace sexual harassment.
• Employer Obligations: Employers must prepare written violence and harassment policies, perform ongoing physical risk assessments regarding potential violence, institute a clear reporting and investigation procedure, and advise workers of persons with a known history of violent behavior if workers are likely to encounter them and physical injury is reasonably foreseeable.
• Scope of Work Refusal: Workers hold the legal right to refuse unsafe work based on workplace violence, but this statutory refusal power does not extend to workplace harassment alone (which is handled through internal complaint procedures and investigation).

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Critical Injury and Fatality Reporting Requirements

When a catastrophic accident occurs, employers must adhere to stringent emergency reporting timelines under Section 51 of the OHSA and Ontario Regulation 834.

Definition of Critical Injury (O. Reg. 834)

A critical injury is defined as an injury of a serious nature that:

1. Places life in jeopardy;
2. Produces unconsciousness;
3. Results in substantial loss of blood;
4. Involves the fracture of a leg or arm, but not a finger or toe;
5. Involves the amputation of a leg, arm, hand, or foot, but not a finger or toe;
6. Consists of burns to a major portion of the body; or
7. Causes the loss of sight in an eye.

Mandatory Reporting Protocols

• Immediate Notice: Where a person is killed or critically injured, the employer must immediately notify the MLITSD inspector, the JHSC or health and safety representative, and the trade union (if any) by telephone or direct electronic transmission.
• Written Report: The employer must submit a detailed written report to the Ministry director within 48 hours outlining the circumstances and technical causes of the incident.
• Scene Preservation: The scene of a critical injury or fatality must remain undisturbed. No person may alter, interfere with, or remove any wreckage, article, or equipment related to the incident without the express authorization of an MLITSD inspector, except to save life, relieve human suffering, or prevent unnecessary damage to equipment or property.