7.1 Occupational Health and Safety Act (OHSA), Worker Rights & Duties

Occupational Health and Safety Act (OHSA), Worker Rights & Duties

Core Principle: In Ontario, workplace safety is governed by the Occupational Health and Safety Act (OHSA, R.S.O. 1990, c. O.1). Safety is not an administrative afterthought—it is a mandatory legal framework grounded in the Internal Responsibility System (IRS). Security guards are simultaneously front-line safety observers who identify site hazards and workers who possess statutory rights, defined legal duties, and specialized limitations regarding work refusal.

---

Purpose and Scope of the OHSA

The Occupational Health and Safety Act is Ontario's primary provincial legislation designed to protect workers against health and safety hazards on the job. The overarching purpose of the OHSA is to prevent workplace injuries, occupational illnesses, and fatalities through enforceable statutory standards, collaborative oversight, and accountability across all employment sectors in the province.

With very few exceptions (such as self-employed individuals, private domestic residences, and federally regulated industries like civil aviation, telecommunications, and interprovincial rail, which fall under the Canada Labour Code, Part II), the OHSA applies to almost all workplaces in Ontario. Security guards employed by contract security agencies or in-house corporate security teams are fully covered by the OHSA.

The Internal Responsibility System (IRS)

The foundation of the OHSA is the Internal Responsibility System (IRS). The IRS embodies the philosophy that everyone in a workplace—from the chief executive officer to front-line contract workers—shares personal, direct responsibility for health and safety, proportional to their authority, control, and role within the organization.

Key elements of the IRS include:

• No Single Safety Czars: Safety is not delegated exclusively to a safety coordinator, supervisor, or the security department; it is integrated directly into everyday operational duties.
• Bilateral Cooperation: Employers, supervisors, and workers must actively collaborate to identify, report, evaluate, and resolve unsafe conditions before injuries occur.
• Accountability Hierarchy: Those with the greatest authority and financial control over physical facilities have the greatest legal responsibility to ensure safe working conditions.

---

The Three Fundamental Worker Rights

Under the OHSA, all Ontario workers are granted three fundamental rights designed to empower them to protect their physical well-being without fear of employer retaliation, reprimand, or termination:

1. The Right to Know

Workers have the absolute right to be informed about actual and potential hazards present in their work environment, tools, machinery, and assigned duties. Employers and supervisors must provide comprehensive information, instruction, training, and supervision. This right includes:

• Access to hazard evaluations, safety operating procedures, and emergency response plans;
• Mandated education on the Workplace Hazardous Materials Information System (WHMIS) and immediate access to Safety Data Sheets (SDS);
• Mandatory disclosure of risks associated with machinery, chemical agents, physical infrastructure, and potential workplace violence.

2. The Right to Participate

Workers have the right to take an active role in identifying and addressing workplace health and safety concerns. This participation is formally structured through representation:

• Health and Safety Representatives: In workplaces that regularly employ between 6 and 19 workers, the workers select at least one non-managerial health and safety representative to inspect the workplace monthly and make formal recommendations to the employer.
• Joint Health and Safety Committees (JHSC): In workplaces that regularly employ 20 or more workers (or where a designated substance order applies), an equal-representation committee consisting of management and worker members is legally mandated. At least two members (one worker and one management) must be certified by the Ministry of Labour, Immigration, Training and Skills Development (MLITSD). The JHSC conducts monthly inspections, reviews accident reports, investigates critical injuries, and submits formal written safety recommendations that the employer must answer in writing within 21 calendar days.

3. The Right to Refuse Unsafe Work

Under Section 43(3) of the OHSA, a worker has the legal right to refuse to perform work or operate equipment where the worker has reasonable grounds to believe that:

• Any equipment, machine, device, or thing the worker is to use is likely to endanger themselves or another worker;
• The physical condition of the workplace or workstation is likely to endanger the worker; or
• Any equipment, device, or physical condition is in contravention of the OHSA or its regulations and is likely to endanger the worker or another worker;
• Workplace violence is likely to endanger the worker.

THREE FUNDAMENTAL WORKER RIGHTS UNDER OHSA:
1. Right to Know (Hazards, WHMIS, Training, Safe Operating Rules)
2. Right to Participate (JHSC, Health & Safety Reps, Safety Inspections)
3. Right to Refuse Unsafe Work (Refusal of Dangerous Duties / Unmitigated Hazards)

---

Section 43(1) and 43(2): Who Actually Has a Limited Right to Refuse

This is the single most commonly misstated rule in security training, so read the statute carefully rather than the folklore. The OHSA does not contain a blanket "security guard exemption" from the right to refuse unsafe work.

Section 43(1) provides that section 43 does not apply to a worker described in subsection (2) when either:

1. Inherent Danger: the hazard is inherent in that worker's work or is a normal condition of that worker's employment; or
2. Direct Endangerment of Others: the worker's refusal to work would directly endanger the life, health, or safety of another person.

Section 43(2) then lists exhaustively who those workers are:

"Security guard" appears nowhere in that list. What matters is where the guard is employed, not the job title:

• A guard employed in the operation of a listed facility is captured. In-house hospital security, security staff at a long-term care home or psychiatric facility, correctional-facility staff, and group-home security fall inside s. 43(2)(c) or (d), so their right to refuse is conditional.
• A contract guard at an office tower, mall, warehouse, condominium, or construction site is not captured. That guard is an ordinary worker who retains the full s. 43(3) right to refuse, subject to the standard investigation process. An employer who tells such a guard "security workers can never refuse work" is misstating the Act, and disciplining the guard for refusing is an unlawful reprisal under Section 50.

Practical Operational Application

• Captured Worker, Inherent Risk (Refusal PROHIBITED): A guard employed in the operation of a hospital emergency department is asked by nursing staff to help restrain a combative patient within approved protocols. Because the guard falls under s. 43(2)(d) and managing agitated patients is inherent to health-care security, s. 43 does not apply and the refusal is invalid.
• Captured Worker, Direct Endangerment (Refusal PROHIBITED): A correctional-facility security worker cannot refuse to respond to a cell-block disturbance where refusing would directly endanger the safety of staff and inmates.
• Non-Captured Worker (Refusal PERMITTED): A contract guard at a commercial office tower is ordered onto an unlit roof with a collapsed guardrail and no fall protection. Nothing in s. 43(2) captures this guard, so the full right to refuse applies immediately.
• Refusal PERMITTED Even for a Captured Worker: If a facility manager orders a guard without personal protective equipment or hazardous-materials training to enter a chemical storage vault with an active, uncontained chlorine gas leak to "check for casualties," the refusal is valid regardless of the guard's employer. Entering without breathing apparatus is not an inherent condition of any security post, and it guarantees a second casualty rather than a rescue.

---

The Two-Stage Work Refusal Process

When a worker exercises the statutory right to refuse unsafe work under circumstances where Section 43(2) does not bar refusal, the OHSA mandates a rigorous two-stage process:

Stage 1: Internal Workplace Investigation

1. Worker Notice: The refusing worker immediately stops the dangerous task and reports the refusal and the specific reasons to their direct supervisor or employer.
2. Safe Standby: The worker remains in a safe location near the workstation while the investigation occurs.
3. Supervisor Investigation: The supervisor immediately conducts an investigation into the reported hazard in the physical presence of:
   • The refusing worker; and
   • A worker member of the JHSC, a certified health and safety representative, or a worker chosen by the union or peer workers.
4. Stage 1 Resolution: If the employer corrects the hazard (e.g., repairs a frayed electrical cord, provides required safety boots, or fixes a broken exhaust fan) and the refusing worker is satisfied that the hazard no longer presents a danger, the worker returns to normal duties.

Stage 2: External Ministry of Labour Investigation

1. Continued Refusal: If the supervisor disputes the danger, or if the hazard is not resolved and the worker continues to have reasonable grounds to believe the work is dangerous, the worker enters Stage 2.
2. Notification of Ministry: The employer, the worker, or the safety representative must immediately contact the Ministry of Labour, Immigration, Training and Skills Development (MLITSD).
3. Inspector On-Site Investigation: An MLITSD occupational health and safety inspector arrives on site and conducts an official investigation in the presence of the refusing worker, the supervisor/employer, and the worker safety representative.
4. Written Decision: The inspector issues a formal written decision determining whether the work, equipment, or physical condition is likely to endanger the worker. The inspector may issue compliance orders or stop-work orders if safety violations exist.
5. Interim Assignment Rules: While awaiting the inspector's arrival and decision:
   • The refusing worker must remain in a safe location during their scheduled hours and may be assigned other reasonable alternative work at no loss of pay or seniority;
   • The employer MAY ask another worker to perform the refused work, but ONLY IF that second worker is formally advised in writing of the prior worker's refusal, the exact reasons for the refusal, and this notification must take place in the physical presence of a worker JHSC member or health and safety representative.

Statutory Duties under the OHSA

The OHSA delineates clear, legally binding responsibilities across three operational tiers: employers, supervisors, and workers. Understanding these statutory boundaries is essential for security personnel who frequently inspect client sites and monitor regulatory compliance.

Security Guard Dual Role: Observer and Worker

In their operational capacity, security guards frequently act as the eyes and ears of facility management. When a guard discovers an unobstructed emergency exit blocked by pallets, a missing fire extinguisher, an open electrical breaker panel, or pooling oil on a walkway during a patrol, the guard has a direct statutory duty under Section 28(1)(d) to report that hazard immediately in the daily occurrence log and notify the client supervisor. Failing to report an observed life-safety defect breaches both site post orders and provincial law.

---

Bill 168: Workplace Violence and Harassment Provisions

In 2010, the Ontario legislature enacted Bill 168, which amended the OHSA by adding Part III.0.1 (Workplace Violence and Workplace Harassment). This landmark legislation recognized that violence and harassment are not merely human resource disputes—they are serious, preventable occupational health and safety hazards.

Legal Definitions under OHSA Part III.0.1

1. Workplace Violence (Section 32.0.1(1)):

   • The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker;
   • An attempt to exercise physical force by a person against a worker, in a workplace, that could cause physical injury to the worker; or
   • A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

2. Workplace Harassment (Section 32.0.1(1)):

   • Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; or
   • Workplace Sexual Harassment: Engaging in vexatious comment or conduct against a worker because of sex, sexual orientation, gender identity, or gender expression where the conduct is unwelcome, or making sexual solicitations or advances where the person in a position of power knows or ought reasonably to know it is unwelcome.

Employer Obligations under Bill 168

Under Part III.0.1, every employer must:

• Prepare Policies: Prepare a workplace violence policy and a workplace harassment policy and review them at least annually (s. 32.0.1(1)). The policies must be in written form and posted conspicuously or made available in a readily accessible electronic format (s. 32.0.1(2)) — and it is only this written-form-and-posting duty that is relaxed, under s. 32.0.1(3), where five or fewer workers are regularly employed at the workplace, unless an inspector orders otherwise. The duty to have the policies themselves never disappears;
• Develop Implementation Programs: Implement programs that include measures and procedures to summon immediate assistance when workplace violence occurs or is likely to occur (e.g., duress panic buttons, radio emergency channels, security guard dispatches), as well as procedures for workers to report incidents or complaints;
• Workplace Violence Risk Assessments: Conduct proactive risk assessments to evaluate physical site layout, environment, public access, cash handling, and lone-worker vulnerabilities, reporting assessment results to the JHSC or health and safety representative;
• Investigate Complaints: Conduct objective, timely investigations into incidents and complaints of workplace harassment and inform the complainant and alleged harasser in writing of the results and corrective actions taken.

Domestic Violence in the Workplace (Section 32.0.4)

If an employer becomes aware, or ought reasonably to be aware, that domestic violence is likely to expose a worker to physical injury in the workplace, the employer must take every precaution reasonable in the circumstances for the protection of that worker. In a security context, this often requires:

• Flagging known abusive individuals at building reception and gatehouses;
• Providing security escorts to and from vehicles or public transit;
• Relocating a worker's desk away from public-facing lobbies or glass windows;
• Enforcing court-ordered peace bonds or restraining orders on client premises.

Duty to Disclose Information Regarding Violent Persons (Section 32.0.5)

An employer and supervisor have a statutory duty to provide information—including personal information—to a worker regarding a person with a history of violent behaviour if:

• The worker can be expected to encounter that person in the course of their work; and
• The risk of workplace violence is likely to expose the worker to physical injury.

Statutory Limitation: The employer or supervisor must not disclose more personal information than is reasonably necessary to protect the worker from physical injury. Security guards must maintain strict confidentiality regarding sensitive medical or behavioral alerts, using the data exclusively for tactical situational awareness and safety planning.