Climate change and increasing temperatures pose a serious risk to the well-being and safety of workers in Ontario, especially those in physically demanding jobs. The aging workforce trend in Canada further exacerbates this challenge. To tackle the issue of heat stress, the Ontario government is proposing a new regulation.

New legislation intended to address the problems of heat stress are likely to come into effect by summer 2024 and employers should be prepared.

Existing Legal Obligations Regarding Heat Stress

In Ontario, it is the responsibility of employers, as outlined in s. 25(2)(h) of the Occupational Health and Safety Act (“OHSA”), to ensure that every reasonable precaution is taken to protect workers. Similarly, supervisors are required under s. 27(2)(c) to take necessary measures for worker protection. This includes developing policies and procedures to safeguard workers in hot and cold environments.

The provincial government also provides guidance on how to approach extreme temperatures in the workplace to avoid heat stress: Guideline No. 33: Working in Extreme Temperature Conditions.

New Proposal

The current legal framework provides general obligations for addressing heat stress but lacks specific details. For example, it does not establish a standard for heat stress limits and does not have a process for evaluating the risk of heat stress.

To fill the legislative gaps, Ontario has proposed a new regulation to protect workers from heat stress and heat-related illnesses as temperatures rise due to climate change (“Proposal”). Recently, the Ministry of Labour has completed the public consultation process, which is part of its Regulatory Impact Analysis. The Proposal is expected to come into effect before summer, 2024, at the earliest. It would add a “stand-alone” regulation under the OHSA and apply to all applicable workplaces, if passed. While some requirements are straightforward, new approaches to determining heat exposures will be required, and employers need to understand how to implement the “ACGIH method.”

The Proposal

• introduces heat stress exposure limits following the American Conference of Governmental Industrial Hygienists’ (“ACGIH”) method (“ACGIH method”);
• allows for alternative assessment methods;
• mandates employers to implement control measures based on a “hierarchy of controls”; and
• requires employers to educate workers about recognizing heat-related illness symptoms and protective measures.

The Details of Implementation

The Proposal outlines the 9  requirements related to the protection of workers from heat-related illnesses in the workplace:

1. Employers must take reasonable measures to protect workers from hazardous thermal conditions that could lead to heat-related illnesses or elevated core body temperatures above 38°C (100°F).
2. As determined by established methods, Compliance with different heat stress exposure limits for various workloads is required.
3. Alternative methods for assessing heat stress exposure may be used if they align with recognized industrial hygiene practices and ensure worker health and safety.
4. Physiological monitoring, if used in assessing heat stress exposure, must be supervised by qualified individuals with knowledge and training in recognizing heat strain and related illnesses.
5. Engineering controls should be employed to maintain heat exposure within limits unless specific conditions make this impractical.
6. Additional measures, developed in consultation with safety representatives, must include administrative controls and personal protective equipment.
7. Adequate hydration facilities must be provided near work areas in hot conditions.
8. Employers must inform workers of protective measures, the importance of hydration and breaks, early signs of heat-related issues, and appropriate actions.
9. Employers are required to advise outdoor workers or those facing increased heat risks due to unusual thermal conditions when Environment and Climate Change Canada issues a heat warning.

 

Mitigating the Risk: Employers Should Know the Hierarchy of Controls

To safeguard workers from potential exposure to heat, the Proposal requires employers to follow a set of practices known as the “hierarchy of controls.” These controls are ranked from most effective to least effective in terms of protection:

1. Elimination or Substitution: Remove or replace unnecessary substances or processes that are the workplace’s heat sources.
2. Engineering Controls: Modify the workplace to reduce exposure to heat stress.
3. Administrative Controls: Workers should be trained and supervised to prevent exposure to heat stress. Additionally, work scheduling and breaks can limit exposure to heat.
4. Personal Protective Equipment: Require workers to wear protective gear to mitigate the risk of heat stress.

 

Practical Steps for Employers

Breaking this down into practical terms, employers should be prepared to take the following steps to protect their workers from heat stress and heat-related illnesses, especially during extremely hot weather:

1. Monitor heat exposure and stay informed: Use tools to track and manage heat levels at work. Stay updated on heat warnings from Environment and Climate Change Canada. Take extra precautions during warnings to protect workers at risk.
2. Workplace Modification: Modify the workplace to reduce exposure to heat stress through engineering controls, for example:

• Reduce physical workloads: Utilizing machines like hoists and lift tables is recommended.
• Control heat source: Insulation and reflective barriers, such as furnace wall insulation, can also be helpful.
• Ventilation: It is advisable to exhaust hot air and steam produced by operations
• AC: Use air conditioners to reduce temperature and humidity levels.
• Fans: Fans can provide additional cooling if the temperature is below 35°C, but caution should be taken when using fans above 35°C as they may recirculate hot air and prevent cooling.
• Cooling Areas: Cool, shaded work areas or air-conditioned rest areas can promote comfort and safety.
• Facilities and Personal Protective Equipment: Ensure that there are adequate hydration facilities near work areas in hot conditions and provide appropriate personal protective equipment such as cooling vests or clothing.

3. Preventative Scheduling: Develop work schedules that consider the heat and allow for breaks in cooler areas, ensuring that workers follow safety guidelines and take necessary precautions.
4. Education: Educate workers about recognizing early signs of heat-related illnesses and the importance of staying hydrated and taking breaks.
5. Tailor It to Your Own Industry, for example:

• Construction Industry: Provide frequent breaks and hydration stations, create shaded rest areas on the site, adjust work schedules to avoid the hottest hours of the day, and use heat stress monitoring devices.
• Manufacturing Industry: Use effective ventilation and AC systems in the plants and conduct regular check-ins with outdoor staff.

Recruitment and Corporate Responsibility in the Time of Climate Change

In addition to the Proposal, it is important for employers to consider the effects of climate change when developing their business strategies. Many employees, including those who may be with your business for years to come, are deeply concerned about climate change.

To attract top talent, you may consider implementing an initiative-taking strategy to address climate change that aligns with their values. For example:

• You can offer telework to office or administrative staff, resulting in less time commuting, which could prove beneficial; and
• You could also attract climate-change-conscious employees with perquisites such as a car allowance for electric vehicles.

Conclusion

Employers must protect workers from heat stress under OHSA. The Proposal outlines implementation details. Although the provincial government may provide guidelines in the future, employers are advised to consult legal counsel when creating workplace policies and programs related to heat stress.

Employment contracts are a critical component of the relationship between employers and employees. They outline the expectations and obligations of both parties, including the employees’ job duties and compensation. However, as businesses evolve, so do the roles and responsibilities of the employees. The change in an employee’s job duties may render the original employment contract void. As a result, even if the original contract limited the employee’s entitlements on termination, either to the minimum requirements under Ontario’s Employment Standards Act, 2000, or some other limitation such as two weeks’ notice or pay in lieu for every year worked, that original contract may no longer be effective. If the employee’s role and responsibilities have changed significantly, the employer may be shocked and caught off-guard at the substantial increase to the employee’s entitlements on termination.

For example, in Celestini v. Shoplogix Inc., 2023 ONCA 131, the Ontario Court of Appeal upheld the motion judge’s ruling that the employee Mr. Celestini is entitled to common law reasonable notice and pro-rated bonus because his contract was unenforceable under the changed substratum doctrine. Mr. Celestini had started working for Shoplogix Inc. (“Shoplogix”) as its inaugural Chief Executive Officer in 2002.  In 2005, he shifted his role to Chief Technology Officer (“CTO”), and entered into an employment agreement that limited his termination entitlements to a 12-month notice period. His initial duties as the CTO were to transfer product and corporate knowledge within Shoplogix. Due to a change in Shoplogix’s structure and business operations, the CTO was then assigned a number of different responsibilities, managing many activities that were previously managed by former senior managers.  In 2017, he was terminated without cause.

Notwithstanding that his CTO contract limited him to 12 months’ notice or pay in lieu, Mr. Celestini was granted 18 months’ common law reasonable notice. The motion judge held that his job duties had been significantly changed, and his employment contract was no longer enforceable under the doctrine of “changed substratum.” In other words, although Celestini’s job title remained the same, the motion judge concluded that his role had been substantially altered due to the addition of significant new duties and responsibilities.

Shoplogix argued that the changed substratum doctrine did not apply because of a term in the employment contract, which required the CTO to perform duties that were reasonably assigned to him. The motion judge rejected this argument because the term did not expressly provide that the employment contract would apply despite any changes to the CTO’s role. As a result, the employment contract was declared void, and the CTO was entitled to common-law reasonable notice, not the 12 months that was in the CTO agreement. Mr. Celestini was paid very well for his work. Hence, in addition to the 12 months’ salary and the pro-rated bonus in 2017 already paid by Shoplogix per the CTO agreement, the motion judge granted $421,043.05, equal to six further months’ salary and bonus,  plus pre-judgment and post-judgment interest to Celestini. The Court of Appeal upheld the motion judge’s findings, except that it allowed Mr. Celestini’s cross-appeal and increased the award by $37,188.61.

Employees’ roles may change as operations evolve. To avoid costly terminations, it is important for employers to amend employment contracts in a timely manner when new duties are assigned to their employees.

Commuting is one of the key parts of an employee’s workday. Deciding how they get to and from work, and how much time this will take, is on every employee’s mind. As COVID-19 has changed the way we live and work, the question about commuting has become even more prevalent.  Indeed the blogTO headline of “total chaos at Eglington Station ” reflects a worse case scenario, making commuting a top of mind issue.

For those required to be physically at work, some have their own vehicle or are close enough to work that they do not need to use public transportation. However, many others are not so lucky, and exclusively depend on public transportation to commute. Getting on public transit increases the risk of contracting and spreading COVID-19, because of the exposure to others, due to the difficulties of social distancing on a bus or a train. A common question at this time from employees is whether the Employer can force them to commute using public transit, and if the Employer does attempt to do so, could this be a human rights violation?

 

Determining liability

Employers can require their employees return to work in order to keep the business going. However, requiring an employee to commute to work could expose employers to a human rights claim. If an employee objects, employers would be wise to take the context surrounding the workplace and the factors affecting the employee into consideration. For example, is the employee part of an at-risk group for COVID-19? If the employee is elderly, has a medical condition, or has been directed to stay at home to self-quarantine, the employee may need to be accommodated. Part of the employer’s requirement to accommodate could be how they address the commute of the employee.

In a recent labour arbitration case between the Toronto District School Board and its Union, the TDSB took the position that they were not obligated to accommodate the employee’s commuting time. In this case, the TDSB was not found to have discriminated against the employee but the Arbitrator did give serious thought to the adverse impact on an employee if the employee’s requested adjustments to their commute are not accommodated.

Because the current pandemic situation is unprecedented, any decision that is made by our courts or tribunals will set the tone for future decisions.   Is it sufficient for the employer to state that public transportation has taken social distancing seriously, and implemented safety measures?  Is the length of the commute a factor to be considered?  Is there a difference between subway or bus transportation? An argument could successfully be made either way, so context matters.

 

Accommodating employee commutes

Accommodation is an individualized exercise that must be examined in context. The nature of the work in question and the work environment are essential contextual factors, as is factoring in the individual employee’s situation.

There can be several options available to the employer and the employee to accommodate the commute. If the employer can stagger their usual work schedules and have the Employee go to work at times when commuting traffic is low, this could be one form of accommodation while requiring the employee to commute since the exposure risk is then  lower. Other more costly forms of accommodation include the Employer subsidizing taxi or car rental costs. The Employee is still required to commute and physically come to work, but they are no longer exposed to the higher-risk commute on public transportation.

The Ontario Government continues to make strides to make public transportation safe for those who need to take it. In a recent news release, the Ontario Government announced measures to keep employees safe as more and more businesses are opening up.  Employers can look to these safety measures if accommodation is requested and judge what additional accommodations might be needed, given the particular circumstances of the employee.

Toronto and the TTC, following the likes of the municipalities of Mississauga, Brampton, and Ottawa, are implementing mandatory facemasks on public transportation. Where mandatory measures such as these are implemented and enforced, the contextual factors relevant to an Employee’s accommodation for their commute will be affected. The safety measures on public transit change the calculus, and some employees will not incur the same risk even if they do need to commute to work via train, subway, or bus.

Accommodation is dependent on the circumstances of the employee requiring accommodation and circumstances of the employer and the workplace. Some employees are at higher risk concerning COVID-19, and may require more accommodation than others.

If you have questions about how to navigate the changing employment laws during COVID-19, Hum Law can advise how to manage your employee contracts while protecting both employers and employees. Contact us today.  To reach us by phone call (416)214-2329.