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.

On October 20, 2020, the Ontario provincial government announced new legislation entitled “Supporting Ontario’s Recovery and Municipal Elections Act 2020”, also known as Bill 218. Many employers concerned about the risks of operating in the midst of the COVID-19 pandemic will be relieved that Bill 218, currently with the Standing Committee on Public Policy for consideration, is expected to be passed.  One of the purposes of Bill 218 is to protect employers from civil claims related to COVID-19 exposure liability, as a direct or indirect result of an individual being potentially infected or exposed to COVID-19 in their workplace, Bill 218 states that if there has been a “good faith effort” to comply with “public health guidance”, then employers are not liable if an individual has been infected with COVID-19.

This legislation is definitely good news for many employers especially now that Ontario has hit the second pandemic wave. Employers that were permitted to reopen were forced to operate in a risky environment, uncertain if they have done enough to comply with employer obligations arising from COVID-19.  Bill 218, if passed, will provide employers with more clarity as to what they need to do in order to protect themselves from liability against civil claims related to COVID-19 exposure in the workplace.

Actions determine outcomes

Under the legislation, the term “good faith” is defined as “an honest effort”.  Legally speaking, a “good faith effort” means what a reasonable person would consider an honest and diligent effort to follow the prescribed guidelines with respect to COVID-19.

Bill 218 does not afford protection to employers from claims where gross negligence or intentional misconduct is involved. This means that the legislation would not protect anyone who consciously or voluntarily disregarded the need to use reasonable care when they ought to have known that it could cause harm. What constitutes “gross negligence” in the context of COVID-19 will be a very fact specific determination.

Practical tips on what employers should do to comply with “public health guidance”

Once Bill 218 becomes law, employers need to ensure they are doing everything possible to comply with public health guidance in order to benefit from its protection. Here are five practical tips for employers to follow:

 

Tip #1: Monitor changing guidelines

In order ensure they benefit from Bill 218’s protections, employers should continue to monitor and implement COVID-19 guidance from all three levels of government (federal, provincial, and municipal), including all applicable laws. To ensure that information is up to date regarding changing public health recommendations and laws, it is best to have a designated person – such as a member of the health and safety committee – to monitor developments in relation to COVID-19 to update policies and communicate them to staff.

There are a number of places that serve as credible sources of information such as:

• Government of Canada: https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html
• Government of Ontario: https://covid-19.ontario.ca/
• City of Toronto: https://www.toronto.ca/home/covid-19/
• World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019

Tip #2: Document everything

The best way for employers to protect themselves from liability is to document the efforts that they make to comply with the prescribed COVID-19 protocols and other measures implemented with a view of limiting individuals’ risk of COVID-19 exposure.

It all starts with the COVID-19 Safety Plan which should document all of the policies and procedures that employers have implemented to reduce the risk of COVID-19 exposure in the workplace.  Employers should take care to provide information and education to employees as they roll out the COVID-19 Safety Plan so that employees are aware of their obligations in the workplace. A template for this document can be found at https://www.ontario.ca/page/develop-your-covid-19-workplace-safety-plan.

Tip #3: Ensure everything is clearly communicated and posted

Signage and communication will be key in establishing employers’ “best efforts”.

This includes highly visible signage for things like:

• Protocols in relation to workstations
• Directional signage in narrow hallways and communal areas to maintain physical distancing rules
• Restrictions with respect to the usage of communal areas such as kitchens, elevators, and meeting rooms
• Schedules for the cleaning and disinfection of frequently touched surfaces and high traffic areas such as elevators, meeting rooms, and washrooms
• Clear communication at all entry points that it is not permitted for anyone to enter the business if they have symptoms of COVID-19

Tip #4: Set clear and formal processes

During times of crisis and uncertainty, it is imperative for employers to have clear and formal processes to maintain calm and eliminate confusion.

Regarding the pandemic, employers should ensure that there is a formal mechanism in place if someone is sick or tests positive for Covid-19, including a visitor log for contact tracing purposes.  This process should be outlined in the COVID-19 Safety Plan referenced above.

Regular operational processes should also be revisited. For example, consider holding client meetings remotely, via teleconference, or outdoors. Businesses should also consider adopting a contact-less business model and implement drive-through delivery and curbside pick-up with clear signage for customer pick-up and delivery.

Tip #5: Provide information and training

Provide clear information and instruction for workers.  Employers should conduct training for workers on possible COVID-19 transmission points in the workplace and ensure that the training efforts are documented including recording employee attendance. Information relating to COVID-19 should be presented in a way that is easy to understand. It could include graphics, pictures and sector specific resources provided by the Ontario Government. If the workplace happens to be multi-lingual, COVID-19 safety protocols should be translated into the languages spoken by employees at the workplace.  Public Health Ontario has also provided printable posters in commonly spoken languages.   

Bill 218 will help employers to mitigate operational risks There is no doubt that COVID-19 has created a period of unprecedented risk and instability for employers. Employers face many operational risks including employees who are reluctant to comply with COVID-19 safety protocols in the workplace. Employees are more like to comply with COVID-19 safety protocols when there is legislation that sets out guidelines’ employers need to follow. Bill 218 represents a step in the right direction and will likely help to ease the burden of employers as they continue to navigate the challenging times ahead.

One notable exception to Bill 218 is that it does not provide much protection to employees. The legislation will not permit an employee to initiate a lawsuit against an employer if they are infected with COVID-19 in the course of their employment. Employees who contract COVID-19 may however, have legal recourse against their employer under the Ontario Workplace Insurance and Safety Act.

The Hum Law Firm will continue to monitor legal developments in relation to COVID-19 liability protection. We encourage you contact us immediately for legal assistance.  Call us at 4162142329 or

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