Due Diligence

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Due Diligence Ontarios Occupational Health
Safety Act

• Presented by
• Murray Hyatt, B.Sc.
• Paul A. Cyr, CRSP
• Ottawa Hospital, Ottawa, ON

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The Occupational Health Safety Act

• Minimum Standard
• Regulations made under the OHSA
• Internal Responsibility System
• Rights of Workers
• Offenses and fines
• The concept of Due Diligence

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Regulations and Standards

• Reg. 67/93-Health Care and Residential Facilities
• Reg. 851-Industrial Establishments
• Reg. 860-WHMIS
• Reg. 833 Control of Exposure to Chemical and
  Biological Agents
• Designated Substances Regulations (Mercury, ETO,
  Asbestos etc.)

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Regulations and Standards, contd

• X-ray Safety-Regulation 861
• Window Cleaning-Regulation 859
• Critical Injury defined-Regulation 834
• Others
• Workplace Safety and Insurance Act
• Ontario Building Code,
• Ontario Fire Code,
• CSA standards, etc...

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Internal Responsibility System

• Principal that workplace hazards can be dealt
  with through communication and co-operation
  between employer and workers.
• Workplace parties share the responsibility for
  occupational health and safety and must strive to
  identify hazards and develop strategies to
  protect workers
• Multipartite Approach

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Rights of Workers

• Right to know
• Right to participate
• Right to refuse
• Right to stop work

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Duties and Responsibilities of Workplace Parties
Under the OHS Act
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Section 25 - Duties of Employers

• Equipment, materials and protective devices as
  prescribed are provided
• Equipment, materials and protective devices are
  maintained in good condition
• Measures and procedures prescribed are carried
  out in workplace
• Equipment, materials and protective devices
  provided are used as prescribed
• Appoint a competent person as a supervisor

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Duties of Employers contd

• Provide information, instruction and supervision
  to worker to protect safety of worker
• Acquaint a worker or a person in authority over a
  worker with any workplace hazards
• Afford assistance to JHSC
• Prepare and review at least annually a written
  OHS policy and develop a program to implement
  that policy

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Duties of Employers contd

• Take every precaution reasonable in the
  circumstances to protect the worker

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Definition of Competent Person

• Qualified because of knowledge, training, and
  experience to organize the work and its
  performance
• Familiar with OHS Act and Regulations
• Has knowledge of any potential or actual danger
  to safety in the workplace

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Section 27 - Duties of Supervisors

• Ensure worker uses or wears the equipment and/or
  PPE required by employer
• Advise worker of any potential or actual danger
  to workers safety
• Ensure worker works in compliance with OHS Act
  and Regulations
• Provide a worker with written instructions
• Take every precaution reasonable in the
  circumstances to protect the worker

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Section 28 - Duties of Workers

• Work in compliance with OHS Act and Regulations
• Use or wear equipment and/or PPE required by
  employer
• Report any contravention of OHS Act and
  Regulations
• Report absence or defect in any equipment or
  protective device
• Shall not engage in any horseplay, or rough and
  boisterous conduct

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Section 9 - Powers of JHSC

• Make recommendations about the safety of
  workplace
• written response required within 21 days
• Obtain information from the employer
• Consulted about testing in the workplace
• Annual workplace inspections
• Review DSR Assessments and Control Programs

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Section 23 - Constructors

• Defined means a person who undertakes a project
  for an owner and includes an owner who undertakes
  all or part of a project by himself or by more
  then one employer.
• Must ensure Act and Regs are abided by on the
  project
• Ensure every employer and worker on project
  comply with Act and Regs. and that HS of workers
  on project be protected
• Ensure MOL is notified of projects as required
• Take every precaution reasonable in the
  circumstances to protect the worker

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Section 32 - Directors and Officers of Corporation

• Shall take all reasonable care to ensure that the
  corporation complies with
• The Act and Regulations
• Orders and requirements of inspectors and
  directors
• Orders of the Minister

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Section 43 - Right to Refuse

• Restricted right for hospital workers
• endangers the safety of another person
• inherent or normal condition of employment

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Refusal to Work

• Worker may refuse if he or she has reason to
  believe that
• operation of equipment or device may endanger
• physical condition of workplace may endanger
• contravenes OHS Act and/or Regulations

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Work Refusal - Stage One

• Worker promptly reports refusal to supervisor
• Supervisor investigates forthwith
• in presence of worker
• Labour JHSC member
• Worker remains in safe location until
  investigation complete

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Work Refusal - Stage One

• Refusal resolved, worker returns to work

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Work Refusal - Stage Two

• MOL notified
• Pending results of investigation
• worker to remain in a safe location
• worker may be assigned other work
• another worker may be assigned work however,
  must be advised of refusal in the presence of
  Labour JHSC member

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Work Refusal - Stage Three

• MOL investigation and decision
• Reprisals by employer prohibited

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Bilateral Work Stoppage

• Certified worker has reason to believe that
  dangerous circumstances exist
• Dangerous circumstances
• contravention of OHS Act and/or Regulations
• contravention poses a danger to workers
• delay in controlling may seriously endanger
  workers
• Restricted if work stoppage endangers safety of
  another person

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Bilateral Work Stoppage contd

• Prompt investigation by supervisor
• Investigation by second certified worker who
  represents other workplace party
• If both certified workers agree work stoppage may
  be ordered

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Workplace AccidentsReporting Obligations
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Critical Injuries

• Injury places life in jeopardy
• Produces unconsciousness
• Results in substantial loss of blood
• Fracture of a leg or arm, but not a finger or toe
• Amputation of a leg, arm, hand or foot but not
  finger or toe
• Burn to a major portion of the body
• Loss of sight in an eye

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Reporting Critical Injuries/fatalities(Section
5, Reg 67/93)

• MOL - immediate notification
• MOL - written report within 48 hrs
• WSIB-written within 3 days

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Non-critical InjuriesLost-time/health
Care/modified Duties

• Must be reported to WSIB within 3 days of
  employer being notified
• Notification to MOL within 4 days
• Manager/supervisor to investigate accident and
  take steps to prevent recurrence

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Section 66 - Offenses and Penalties

• Every person who contravenes or fails to comply
  with the act or ministry orders is guilty of an
  offense . Upon conviction, fines up to 25,000
  and up to 12 month jail term per offense.
• Corporation fines up to 500,000 per offense.

Accused person (incl. Corp.) may be found liable
for any act or neglect on the part of directors,
managers, supervisors, officers etc., as if
offense was committed by accused Strict
liability
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Section 54 - Enforcement

• MOL inspectors can enter any workplace (except
  dwellings), anytime without warrant
• Seize or make use of anything in the workplace so
  as to gather evidence
• Question anyone, order any tests, take photos,
  take samples, etc., all at the expense of the
  employer
• Issue orders in effect until hazard rectified
• 50,000 site visits before year 2000

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Due Diligence

• As a legal defense -acquittal in either of two
  ways
• Proving that all reasonable care was taken to
  avoid the episode or,
• Proving that one believed in a mistaken set of
  facts (ignorance of the law doesnt count) that,
  if true, would render the prohibited act innocent.

Being willfully blind will not save you, it
will bury you
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Establishing Due Diligence

• Develop specific policies, practices and
  procedures for hazardous activities in the
  workplace
• Provide adequate orientation and training to
  workers
• Ensure that competent supervisory staff monitor
  hazardous work and communicate risks to workers
• Audit the workplace for foreseeable health and
  safety risks and protect workers accordingly
• Ensure compliance through rules and discipline
• Never assume that the worker will know enough
  about the risks involved in any given task