US: OSHA compliance, investigations and citation appeals
Providing information on recent developments concerning both the federal and various approved states’ occupational safety and health programs across the nation.
Employer’s general duty to protect health and safety
In general, Canadian employers have a legal obligation to take every precaution reasonable in the circumstances to protect employee health and safety. This obligation also extends to protecting employees from communicable illnesses, such as COVID-19, and includes compliance with any industry-specific and jurisdictional requirements put in place due to the pandemic.
While occupational health and safety requirements vary across Canada’s 14 jurisdictions, which comprise of one federal jurisdiction, 10 provinces, and three northern territories, generally speaking, employers in Canada are required to:
COVID-19 risk mitigation strategies
Employers are required to take all reasonable precautions to protect workers from contracting COVID-19. What is “reasonable” depends on the circumstances and considers an employer’s size, industry, resources, and other fact-specific considerations. Before allowing employees to return to the physical workplace, employers across all Canadian jurisdictions may need to do the following:
For more information on how to create and implement effective risk mitigation strategies in view of reopening the workplace, see our Roadmap for Canadian employers: Reopening the workplace while mitigating pandemic risks (aussi disponible en français).
A number of jurisdictions have provided specific guidance on how to maintain health and safety in the reopening workplace and between returning workers. Generally, employers in Canada will have to develop reasonable measures to:
prevent the risk of transmission of infection amongst workers, volunteers or (as applicable) patrons;
provide a rapid response if a worker, volunteer or member of the public develops symptoms of illness at the workplace; and
maintain high levels of hygiene.
Employers will also need to abide by applicable public health orders, which may require screening employees, requiring workers to wear face coverings or be physically distanced, cleaning surfaces or reporting cases.
Mandatory face-covering requirements
Most jurisdictions in Canada issued public health orders requiring face-coverings to be worn in indoor public spaces, including the workplace. Although some jurisdictions continue to impose these requirements, requiring, in some cases, medical masks to be worn, some jurisdictions have repealed face-covering orders in light of their reopening plans. In assessing whether your workplace requires workers to wear face-coverings indoors, it is important to identify the applicable public health orders, sometimes at multiple jurisdictional levels, including both the provincial and municipal levels. Notably, it is possible that a province or territory has revoked its mandatory face-covering requirement, but the requirement remains within a municipality. It is also important to verify whether there are any exceptions to general face-covering rules for a particular industry or worker type. Different jurisdictions in Canada have vastly different requirements for face coverings, meaning that businesses with Canadian offices should perform jurisdiction-specific searches for these rules.
At the federal level, the Labour Program has advised that all federally regulated employers are expected to comply with the relevant provincial and municipal public health legislation. Certain federally regulated industries, such as the aviation and the railway industries, must comply with specific face-covering requirements.
COVID-19 tracking app
COVID Alert, a COVID-19 tracking application launched by the federal government, allows individuals to anonymously report COVID-19 infections to protect others who have been in contact with an infected individual. The federal government strongly recommends that all individuals download the application and actively report infections. While employers are not legally obligated to require their employees to use the applications, use of the application should be encouraged because it is a cost-effective and non-invasive means of preventing COVID-19 outbreaks in the workplace. Learn about the COVID Alert application here.
As most provinces loosen restrictions, employers can expect new public health guidance to emerge instructing employers how they should safety bring back workers to the physical workplace and mitigate outbreaks as workplace capacities begin to rise. Having a person or team that is designated to tracking the latest orders, guidance, and changes to occupational health and safely rules can be helpful, and in some cases necessary, to ensure compliance with the latest rules. Employers should keep an eye out for updates on the following issues:
Government guidance on the issues above can quickly change, so it will be particularly important employers remain as flexible, adaptable, and responsive as possible over the coming months.
For more information on jurisdiction-specific requirements and governmental guidance, scroll to the end of this chapter where we include references to government resources for all jurisdictions.
Consulting with key stakeholders
In preparing for a safe reopening of the workplace, it is important to consider which stakeholders should be consulted in developing workplace policies and procedures and ensuring their compliance.
One of the first items on an employer’s checklist when preparing workplace policies and procedures is to draft a detailed list of risks and safety issues that need to be addressed in the workplace.
To achieve this, employers may have to conduct a physical walkthrough of the workplace to identify health and safety risks relating to people, equipment, surfaces, training and suppliers. It is often workers themselves or their immediate managers who are in the best position to identify health and safety risks that threaten their day-to-day activities. As workers return to the physical workplace in larger numbers, employers may wish to consult workers and their managers about novel health and safety risks that may not have existed prior to the pandemic. These may include issues relating to unlearning of skills and protocols, lower fitness levels, mental health considerations, familiarity with exists and building exists and safety plans, as well as COVID-19 transmission risks.
From a health and safety perspective, stakeholders may include:
Specific consultation obligations may vary between jurisdictions. For example, in Ontario, employers should work in consultation with the joint health and safety committee or health and safety representative. For unionized employers, the workplace reopening should be planned in consultation with the trade unions or representatives. Employers should also be mindful of public health orders currently in force in their jurisdiction, which can limit the return of workers to only those who are necessary at the physical workplace and who cannot otherwise perform their duties remotely.
Consulting with and soliciting feedback from employees
Engaging employees by keeping them up to date on developing health and safety measures and reopening plans can also be beneficial to employers, based on a number of considerations.
Firstly, for many employers reopening, work refusals are a central concern. In Canada, workers generally have the right to refuse dangerous or unduly hazardous work if they have legitimate health and safety concerns. Generally, after an employee refuses to work on the basis that work is dangerous, the work cannot continue until an investigation is carried out and determines if the refusal is justified or not. In some jurisdictions, the legislation expressly requires the employer to pay the refusing employee, and ensure he or she is in a safe place while the investigation is ongoing.
To mitigate this risk, employers should involve workers in certain reopening or returning conversations, and address any legitimate safety-related concerns raised in that context. In practice, this could take the form of consultations with an employee or a union representative. Soliciting employee feedback could also be encouraged by implementing a confidential and voluntary employee reporting or feedback program that allows employees to raise any concerns they may have regarding workplace safety.
Moreover, for some employees, the stresses and fatigue of the pandemic may have had a significant and lasting toll on their mental health. Ensuring that employees are involved in the reopening process could help to mitigate these challenges, and could work to create a sense of reassurance and ease among the workers.
Some jurisdictions have published specific guidance on communicating COVID-19-related information to employees. For example, in Alberta, the provincial government has recommended that employers keep in constant communications with employees on developments related to COVID-19, including steps taken to prevent the spread of COVID-19 at the workplace, and the employees’ role in the furtherance of that objective.
Refer to the links at the end of the Canadian chapter of this guide for more information on jurisdiction-specific requirements.
Gatherings and physical distancing in the workplace
Federal, provincial, and municipal governments in Canada have issued orders governing workplace gatherings. The specific rules that apply to your business depend on a host of factors, such as the location of your business, your industry, and the scope of products or services you offer to the public. Gathering rules in one jurisdiction are not necessarily applicable in others. In most jurisdictions, even if orders requiring physical distancing in the workplace have been removed, they often impose a broad duty on employers to take reasonable measures to protect the health and safety of workers and distancing is an effective means. Businesses should pay particular attention to larger gatherings and events, such as meetings, conferences, or training sessions. While these gatherings may take place in the workplace, in many provinces, they are restricted in size. Finally, personal protective equipment is either required or recommended in most provinces where physical distancing is not possible.
Practical tips for gatherings and distancing in Canada include:
Although the measures discussed above are not exhaustive, they provide some insight into how employers can think creatively to ensure their workplaces reopen in a legally compliant manner.
In addition to the measures discussed in the response to the previous question, governments in Canada have recommended a number of measures to ensure social distancing in the workplace.
Governments in Canada have recommended the following to promote social distancing in temporal terms:
It should be noted that, in many respects, some of the recommended measures may require support from human resources and other departments, as well as heightened supervision from management. It will therefore be important to regularly communicate with all managers and supervisors, as well as with employees, to the extent possible.
For more information on jurisdiction-specific requirements and governmental guidance, please note that we have included references to the most important government resources in all of Canada’s jurisdictions.
Additional protections will vary depending on the employer, as well as its jurisdiction and industry.
Across Canada, many government authorities have recommended a number of additional protections to protect against COVID-19. While some provinces have lifted their state of emergencies and many public health orders relating to COVID-19, the measures below are often recommended to reduce the risk of outbreaks:
For more information on jurisdiction-specific requirements and governmental guidance, we have included references to the most important government resources in all of Canada’s jurisdictions.
As discussed in previous questions, employers are required to take every precaution reasonable in the circumstances for the protection of a worker. Given the highly infectious nature of COVID-19, this obligation includes implementing reasonable measures to limit the spread of COVID-19 in the workplace. The appropriateness of screening, testing, or other control measures to eliminate or minimize the potential for occupational exposure will depend on the risk level of each workplace. Some provinces, such as Alberta, British Columbia, Saskatchewan, have largely lifted public health orders put in place during the pandemic and duties to screen employers may have shifted to recommendations. It is important to track the provincial and municipal public health orders in your business’ jurisdiction to understand your screening obligations.
For workplaces with lower risk levels, reasonable control measures may include posting signage for proper respiratory etiquette and hand hygiene, providing sanitization facilities, frequently cleaning and disinfecting commonly used spaces in the workplace, increasing distance between workstations, and making sure employees are aware of the steps to take if they experience any symptoms of COVID-19.
For workplaces with higher risk levels, such as those engaged in health care, food services, manufacturing, etc., more extensive control measures may be justified. In these workplaces, it may be reasonable for high-risk workplaces to implement mandatory screening and/or testing (including self-declarations, reporting programs, and temperature testing) prior to admitting entrance to the workplace. This would also likely be justified where there is evidence of an outbreak in either a high- or low-risk workplace.
However, in some jurisdictions, occupational health and safety legislation provides employers with the right to establish a medical surveillance program or provide for safety-related medical examinations and tests. These measures are only permitted in certain circumstances, as prescribed by law. It will be important to consult legal counsel before implementing screening procedures.
An employer’s occupational health and safety obligations in these circumstances must be weighed against the protections afforded to an individual’s privacy and human rights. As will be noted, in light of the COVID-19 pandemic, a balancing of interests approach would likely favour the health and safety of the workplace and public over the employee’s individual rights.
In some jurisdictions, such as Ontario, human rights bodies have taken the position that conducting a medical assessment to verify or determine an employee’s fitness to perform his or her work, such as taking an employee’s temperature, may be permissible. However, employers should only collect information from medical testing that is reasonably necessary to assess the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability. Most jurisdictions that allow or require screening also require employers to destroy records and personal information obtained following screening tests within a specified period of time.
If it is deemed that screening employees is required, which might no longer be the case as provinces begin to ease public health restrictions, the following best practices should be considered:
Any mandatory testing program should regularly be reviewed and re-evaluated to ensure compliance with evolving public health guidance.
The Government of Canada has advised that all non-essential travel abroad should be avoided at this time, including to the United States, subject to certain exceptions, such as those applicable to immediate family members of Canadian citizens and permanent residents. As of July 5, 2021, the federal government eased international travel restrictions and quarantine requirements for certain travellers who have received two doses of a recognized vaccine, although these largely apply to individuals with certain ties to Canada, such as permanent residents, and not necessarily for recreational or business travel. Canada expects that, going forward, international travel restrictions will ease as the COVID-19 situation in Canada improves, and the easing of restrictions will likely be tied to a traveller's vaccination history. The Government of Canada also introduced testing requirements for all international travellers into Canada by land and air, as well as mandatory hotel self-isolation upon arrival, both of which can impose significant costs for travellers and their employers.
As a result, employers should, as a best practice, cancel all non-essential travel of their employees at this time, and encourage those who will be required to travel to be fully vaccinated.
Monitor changes in Canada's federal travel restrictions here.
Traveling to or from the office
Workers should follow local and provincial health guidance when travelling to or from the workplace. While some provinces, for example, require face coverings to be worn on public transit and in company vehicles, others have largely lifted mandatory health restrictions.
Government health measures and recommendations when traveling or commuting may include:
For more information on jurisdiction-specific requirements and governmental guidance, we have included additional references to the most important government resources in all of Canada’s jurisdictions at the end of the Canadian portion of this guide.
Deciding who can, should and must return to the workplace is an exercise that will depend on the nature of the employer’s business and the resources required to keep the physical workplace open. While some provinces have lifted their state of emergencies, and given employers significant discretion in inviting workers back to the workplace, other provinces, such as Ontario, Manitoba, and Quebec, recommend that workers who are not necessary in the physical workplace continue to work remotely. In short, the decision to invite workers back to the workplace will depend on the provincial and municipal orders and guidance in your jurisdiction.
Although specific requirements and needs may differ from employer to employer, there are a number of best practices that can be considered across the board, including:
For more information on jurisdiction-specific requirements and governmental guidance, we have included references to the most important government resources in all of Canada’s jurisdictions at the end of the Canadian portion of this guide.
Employees’ right to refuse work in Canada?
Generally speaking, health and safety legislation across the country allows employees to refuse work in dangerous or unduly hazardous situations, depending on the wording of the governing legislation. Moreover, collective agreements may also have work refusal provisions that apply in specific work environments. Most commonly, work refusals arise when employees refuse to do something they have been asked to do, because of unsafe operating equipment, or the physical condition of the workplace. Depending on the circumstances, employees can refuse to do either a single task or a series of tasks at work, or can refuse to work altogether.
To lawfully refuse work in Canada, employees must meet a certain threshold, which may vary depending on the jurisdiction. For instance, in some jurisdictions, such as Alberta, work refusals must generally be based on reasonable grounds. In others such as Ontario, the worker must only have a “reason” to stop work initially, which may be a subjective reason, and later the inspector determines if the situation is “likely to endanger” on a reasonableness standard.
Refusing employees must therefore have legitimate health and safety concerns, and the evidence must demonstrate the employee is at risk or likely to be at risk because of a hazard or condition in the workplace. For this reason, employees cannot refuse work because of preference, taste or personal comfort. Determining what constitutes a danger is not always an obvious exercise. The analysis will therefore be situationally driven and will crucially depend on the evidence of the case.
The ultimate determination of whether or not a work refusal is reasonable in the circumstances is a question of fact, dealt with case by case. For example, in some cases, employees will face normal conditions in the course of their employment that carry some risk, such as those working in the emergency services sector. A work refusal in that context may not be justified, whereas it may be reasonable for employees working in other domains to do so under the same conditions.
The procedural steps of a work refusal, generally
In addition, employers in Canada should be mindful that the procedural requirements surrounding work refusals vary by jurisdiction. Generally speaking, refusing workers are first required to notify their supervisor or employer that their or another’s health or well-being is being endangered by a condition or hazard in the workplace. Once notified, the supervisor or employer must investigate to determine whether the circumstances justify the worker’s refusal to work. This is often done in the presence of the employee, joint health and safety representatives and/or a union representative. Based on this assessment, the employer then determines if the work refusal is justified.
If the refusal is justified, the employer has a duty to ensure safety is re-established, and the refusing employee may thereafter return to work. If the refusal is not justified, the employee will be directed to return to work. If the employee disagrees with the employer’s decision and continues to refuse to work, the appropriate government regulator would appoint an inspector to conduct a health and safety inspection surrounding the circumstances of the refusal. Following the investigation, the inspector decides if the work refusal was lawful due to a condition or hazard in the workplace and sends his or her findings to the concerned parties.
As we now know, the impact of COVID-19 transcends the domain of health and safety. Indeed, employers will have to address a constellation of issues in other areas of the law, which may include layoffs and redundancies, COVID-19-related leaves of absence, vacation and flexible work, mental health, privacy, human rights and various government relief programs.
Staying well positioned
To conclude, it should be mentioned that not every workplace challenge can be fixed by our legal regime. For example, when addressing a situation where an employee refuses to perform work on the basis of health and safety concerns, the objectivity and legitimacy of those concerns are and will undoubtedly continue to often be elusive. Work refusals may in some cases manifest themselves despite the implementation of risk mitigation measures and strategies, and regardless of disciplinary or job loss consequences. As a result, management and human resources teams will need to enhance transparency, communication and consultation processes in particular around enhanced safety measures taken in their workplaces.
Looking onwards, it can be anticipated that government guidelines discussed and referred to in the previous questions may be subject to future change as the economy gradually reopens. To stay on top of it all, we have provided you with some of the key resources published by government authorities in every Canadian jurisdiction, commencing with the federal jurisdiction, followed by the provinces and territories listed in alphabetical order below.
(For private sector employers)
Government of Canada
Canadian Centre for Occupational Health and Safety
Office of the Commissioner of Official Languages
Office of the Privacy Commissioner of Canada
The Public Health Agency of Canada
Government of Alberta
Alberta Human Rights Commission
Workers’ Compensation Board
BRITISH COLUMBIA (BC)
Government of British Columbia
BC Centre for Disease Control/BC Ministry of Health
Office of the Human Rights Commissioner (British Columbia)
Office of the Information and Privacy Commissioner for British Columbia
Government of Manitoba:
SAFE Work Manitoba
Manitoba Workers’ Compensation Board
NEW BRUNSWICK (NB)
Government of New Brunswick
New Brunswick Human Rights Commission
NEWFOUNDLAND AND LABRADOR
Government of Newfoundland and Labrador
Human Rights Commission of Newfoundland and Labrador
Office of the Information and Privacy Commissioner
NORTHWEST TERRITORIES (NWT)
Government of Northwest Territories
NWT Human Rights Commission:
Workers’ Safety and Compensation Commission and Northwest Territories and Nunavut
Government of Nova Scotia
Worker’s Compensation Board
Office of Information & Privacy Commissioner
Nova Scotia Human Rights Commission
Government of Nunavut
Workers’ Safety and Compensation Commission and NWT and Nunavut
Government of Ontario
Information and Privacy Commissioner of Ontario:
Workplace Safety and Insurance Board Ontario
PRINCE EDWARD ISLAND (PEI)
Government of Prince Edward Island
Workers’ Compensation Board of PEI
PEI Human Rights Commission
Gouvernment du Québec
Commission des normes, de l'équité, de la santé et de la sécurité du travail (Québec)
Institut national de santé publique (Québec)
Commission des droits de la personne et des droits de la jeunesse (Québec):
Commission d’accès a l’information du Québec
Government of Saskatchewan
Saskatchewan Workers’ Compensation Board
Office of the Saskatchewan Information and Privacy Commissioner
Government of Yukon
Yukon Workers’ Compensation Health and Safety Board
Yukon Information and Privacy Commissioner
In Canada, blanket workplace policies that require all employees to be vaccinated – or else terminated – have generally been found to be an unreasonable use of management’s rule-making authority or otherwise inconsistent with principles of labour law.
In addition, given the human rights values at stake, case law has held that consenting to a potentially invasive medical treatment, like vaccination, is an inherently profound and personal decision that individuals themselves should ultimately make.
When it comes to a workplace vaccination policy, depending on the nature of the workplace and in cases of an outbreak or where there is evidence of high risks of transmission in the workplace, a policy that restricts access to the workplace depending on vaccination status may be enforceable in limited and specific circumstances:
For more information on this topic, click here for our legal update.
As many employers move towards a hybrid working model, implementing a clear and detailed policy is strongly recommended. Employers will need to consider the following questions:
Providing information on recent developments concerning both the federal and various approved states’ occupational safety and health programs across the nation.
To assist businesses navigate Australia’s complex chemical laws, we provide a brief guide to the importation of chemicals and chemical-based products into Australia.
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