February 22, 2016

Reminder: Important Imminent and Looming Changes to the Occupational Health and Safety Act

There are a number of amendments to the Occupational Health and Safety Act (“OHSA”) that will, or are likely to, come into effect in 2016 that will expand existing employer obligations. Consequently, employers should be prepared to address these changes which are anticipated to include:

• New certification standards for certified members of Joint Health & Safety Committees;
• New workplace harassment obligations; and,
• The expansion of noise protection regulation to all workplaces.

1. New Certification Standards for Certified Members of Joint Health & Safety Committees
On March 1, 2016, the new Joint Health & Safety Committee (“JHSC”) certification training standards will be in effect. As outlined in our previous In a Flash, the new standards require that certified members and training providers meet specific requirements which have been designed to promote quality and consistent training.
The current standards will remain in effect until February 29, 2016. Committee members who have not yet been certified but who, prior to March 1, 2016, complete Part One (basic certification) and Part Two (workplace specific hazard) training will be considered for certification. However, in order to be certified, a confirmation form must be sent to the Ministry of Labour on or before April 30, 2016. The new standards will not apply to Committee members certified prior to March 1, 2016.
The requirements of the new standards will apply to all those who have not completed both Part One and Part Two training before March 1, 2016 (including those with only Part One training). Specifically, JHSC members seeking certification will be required to participate in a minimum number of formalized, sector-specific training hours that have been approved by the Ministry of Labour (“MOL”). Certified members will also be required to undergo an MOL approved “refresher training program”.
Refresher training is to be given every three years to those certified on an after March 1, 2016.  Committee members who are fully certified prior to March 1, 2016, are not required to receive refresher training.  However, active certified members can apply for a one-time exemption from the refresher training requirement. This exemption would extend the required period for refresher training by an additional three years but the request for the exemption must be completed and sent to the MOL prior to the expiration of the three year period following completion of Part Two or refresher training.
2. New Workplace Harassment Obligations
Bill 132, known as the Sexual Violence and Harassment Action Plan Act, 2015, officially introduced on October 27, 2015, passed second reading in December 2015 and has been referred to the Standing Committee on Social Policy for consideration.
As outlined in our previous In a Flash, if passed, Bill 132 modifies the significant amendments to the OHSA arising from Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009.
Subsequent interpretations of the workplace harassment obligations, imposed by Bill 168, have resulted in some uncertainty about the extent to which those obligations required employers to prevent and investigate incidents of workplace harassment. If passed, Bill 132 will expand and clarify an employer’s workplace harassment obligations and will provide additional powers to Ministry of Labour inspectors. In addition to introducing and defining “workplace sexual harassment” as a type of workplace harassment, Bill 132 will require employers to:

• amend their workplace harassment policy and program;
• develop a reporting mechanism for workers where the alleged harasser is the worker’s supervisor or employer;
• conduct an investigation into incidents or complaints of workplace harassment;
• develop processes to ensure an appropriate level of confidentiality over the information gathered as part of an investigation;
• inform the worker and the alleged harasser of the results of the investigation, including any resulting corrective action; and
• review their harassment program at least annually.

Currently, Bill 132 contains a significant amendment to the powers of MOL inspectors: the authority to direct an employer to retain a third party to conduct an investigation of an incident of workplace harassment. The employer would bear the cost of the third party investigator.
It is expected that the workplace harassment and other provisions of the OHSA will be amended by Bill 132 once its content and requirements are finalized through the legislative process. Once Bill 132 will come into force six months after receiving Royal Assent. Therefore, employers should be following developments and prepared to make the necessary changes to their workplace harassment policies and programs.
3. Expansion of Noise Protection Regulation
Effective July 1, 2016, a new noise regulation (Regulation 381/15) will come into effect. The new regulation will extend noise protection requirements to all Ontario workplaces regardless of sector. Previous noise regulations only applied to industrial establishments, mines and mining plants, offshore oil and gas operations.
Workplaces that will be subject to the new noise regulation will be expanded to include:

• Construction projects
• Health care facilities
• Schools
• Farming operations
• Fire services
• Police Services
• Amusement parks

All employers will now be required to take measures to reduce worker exposure to noise through:

• a “hierarchy of controls”, including but not limited to engineering controls, reducing noise at the source or along the path of transmission;
• work practices, such as limiting exposure time and maintaining equipment; and
• the use of personal protective equipment, such as hearing protection devices.

Employers not previously covered by noise regulations should closely review their operations to ensure compliance with the new obligations.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at:  https://mathewsdinsdale.com/news-events/in-a-flash/
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