April 22, 2014
Our Occupational Health and Safety (“OHS”) Team has received a lot of questions surrounding O. Reg. 297, which requires that all workers and supervisors receive basic OHS awareness training by July 1, 2014. We thought we would take this opportunity to share some of those questions with you in the form of FAQs and provide further information for employers wishing to ensure that they maximize the benefits of training to workers and supervisors, while meeting the new mandatory minimum training requirements.
Do we REALLY have to train ALL of our workers?
The short answer to this is ‘yes’. However, it is not a new requirement to provide worker training. The Occupational Health and Safety Act (“OHSA”) has always required employers to provide workers with information and instruction. The difference now is that the Regulation specifically sets out the minimum information to be provided. This minimum training for workers requires training in:
The new mandatory awareness training is not the totality of the employer’s obligation to provide information and instruction to workers. There are numerous other matters for which an employer is required to provide information and instruction to workers. These additional areas include, as applicable, the Workplace Hazardous Materials Information System (“WHMIS”), workplace violence / harassment, fall protection, and workplace specific hazards. Employers are always encouraged to provide training in workplace policies and procedures, new hazards of which the employer or supervisors become aware, and re-train at regular intervals in order to meet OHS court-developed due diligence requirements.
Who should we consider a “supervisor” for the purposes of providing awareness training?
One challenge that may present itself is comprehensively identifying all people who are supervisors as defined by the OHSA. The Regulation does not define “supervisor”. The Ontario OHSA defines a supervisor as someone who “has charge of a workplace or authority over a worker”. This is a very broad definition, potentially encompassing a wide range of workers and management.
In determining whether a person meets this definition, the courts have looked for “hands on” authority which has been determined to be broader than the traditional powers to hire/fire, discipline, etc. Indeed, the courts have applied the definition broadly such that people working as lead hands directing work, forepersons, company presidents and in other positions within the management structure have all been found to be supervisors for OHSA purposes. In light of this, it would be prudent for employers to identify all people who are or act as a “supervisor” in order to ensure that they are provided with the prescribed training. It may be prudent to seek legal advice on the matter.
Supervisors must receive training as a minimum in all of the elements that workers must receive, as well as how to recognize, assess and control workplace hazards and evaluate those controls, and sources of information on OHS. From the perspective of court-developed due diligence standards, employers may wish to case a broad net in ensuring that as many parties in the workplace receive both the minimum worker and supervisor training. And don’t forget about operations or field supervision who do not physically attend at workplaces – they can be regarded as supervisors too.
What if our workers and/or supervisors already have training?
Respecting supervisors, it has always been the employer’s obligation to ensure that supervisors are “competent” as defined under the OHSA. In order to met that definition, supervisors must have:
Thus, it has always been the employer’s responsibility to ensure that supervisors have the general and workplace specific training to meet this definition. Regulation 297 sets out the minimum OHS training that must be provided to supervisors, but also requires that supervisors be given information on hazard identification, an essential part of their position. Many employers set minimum “supervisory competence” standards as good practice.
Respecting your existing training, the Regulation allows that supervisors and workers may be exempt from the new minimum OHS Awareness Training if they have already received such training. If you already have an orientation and/or ongoing training program in place for supervisors, ensure that it covers all of the new information set out in the Regulation. Ensure that you document this review exercise in case you are questioned by the Ministry of Labour. Ensure that you have documented when they have received their training and its content.
Is there a deadline to provide OHSA awareness training to someone once they become a supervisor?
Yes. The Regulation requires that supervisors be provided with OHS Awareness Training within one week of performing supervisory work for the employer, unless they have already received training that meets the requirements of the Regulation.
Do we have to provide awareness training to workers before they begin work?
The Regulation requires that employers provide awareness training to workers “as soon as practicable”. The Regulation does not define that phrase or provide any other guidance on what “as soon as practicable” means but it is notable that the Regulation does not require such training before beginning work, or as soon as possible after beginning work. This is not unusual and provides some flexibility to employers in how training may be arranged. That said, it is anticipated that employers will be required to provide the mandatory OHSA awareness training soon after the worker begins work with the employer. Not only is this the likely approach that will be taken by adjudicators but, as a means of risk management, it is preferable to provide training to workers before, or very soon after they begin working.
Is there a required format for the training? Or training records?
The Regulation does not require that the awareness training be provided in any particular manner or style. Employers are free to provide their workers and supervisors with the training in the manner and style of their choosing – subject, of course, to ensuring that the training includes the prescribed content. Employers may, therefore, choose to provide the training directly to their workers and supervisors or to have the training provided by a third party such as a law firm, health and safety consultant or by using the training resources available from the Ministry of Labour.
Regardless of the means by which workers are provided with training, employers should ensure that they keep a record of each individual’s attendance and understanding of the subject material. This can be done in a variety of ways but at a minimum by having an attendance log and quiz / test. All content of the training (such as printed materials, workbooks, videos, or comprehension tests / quizzes) is retained. This will allow the employer to demonstrate the specific information and instruction that was provided to the worker or supervisor and to show that the awareness training met the requirements of the Regulation. Note that if the Ontario MOL training provided for free to workers and supervisors is used as a training source, the MOL will not keep a record of that training.
Should we do anything to make sure our subcontractors have provided training to their workers and supervisors?
For due diligence purposes, yes. It is recommended that as part of your contractor management program, you confirm that any contractors you hire have provided their workers with the requisite OHS Awareness Training.
We Can Help!
Mathews, Dinsdale & Clark and its specialized OHS and workers’ compensation lawyers, combined with the strength of CompClaim’s OHS and workers’ compensation consultants, provide a full range of services to national, provincially and federally regulated businesses. Our group of experienced litigators, former OHS Prosecutors, experienced trainers and consultants can assist. Should you have any questions on compliance with legal obligations, due diligence expectations, or wish to discuss in-house training on this new legislation, or due diligence for corporations and supervisors, please do not hesitate to contact your regular Mathews Dinsdale lawyer, CompClaim consultant or a lead for the OHS team:
Cheryl Edwards email@example.com
Jeremy Warning firstname.lastname@example.org
Laura Russell email@example.com
David Marchione firstname.lastname@example.org
If you have any questions about occupational health and safety matters, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer or CompClaim consultant.
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