Integrated Accessibility Standard - The Next Step in
Accessibility Compliance With a the deadline for compliance with the Accessibility
Standard for Customer Service (ASCS) Regulation to the
Accessibility for Ontarians with Disability Act (AODA) on
January 1, 2012, now past, organizations across Ontario should now
turn their minds towards compliance with the second phase of the
AODA accessibility regime – the Integrated Accessibility
Standard (IAS). As with the ASCS, the IAS applies to the Government of Ontario,
the Legislative Assembly, every designated public sector
organization and to every other person or organization that
provides goods, services or facilities to the public or other third
parties and that has at least one employee in Ontario. However, the
application of some sections of the regulation has been restricted;
specifi cally, the employment standard applies only to
organizations who are employers, and the transportation standard
applies only to organizations who meet the defi nition of
"conventional transportation service provider" or
"specialized transportation service provider," as
prescribed by the regulation. Compliance with the IAS has been phased-in gradually over a
nearly 10-year period – from July 1, 2011 to January 1,
2021. In addition to varying compliance deadlines for each of the
information and communication, employment, and transportation
standards contained within the IAS, compliance deadlines are
prescribed for fi ve different classifications of organization: In most circumstances, compliance will be achieved in phases
according to an organization's classifi cation in this order,
with the Government of Ontario and Legislative Assembly having to
comply first and small organizations having to comply last, if at
all. Information and Communication Standard The information and communication standard is contained in
sections nine through 19 of the IAS, and contains obligations with
respect to feedback, emergency procedures, accessible web content,
education and training resources and materials, public libraries,
and the provision of accessible formats and communication supports
to persons with disabilities. While products and product labels are
exempt from the requirements of this standard, webbased
applications are not. The fi rst of these to require compliance is
the emergency procedures, with a compliance deadline of January 1,
2012. Organizations have been particularly concerned with the
requirement for accessible web content, which references the Web
Content Accessibility Guidelines 2.0 published by the Worldwide Web
Consortium. Among other things, these guidelines identify four
principles of web accessibility – perceivable, operable,
understandable and robust – and prescribe measures to
ensure that a website respects each of these principles. The
accessible web content requirements are to be phased in between
January 1, 2012 to January 1, 2021, depending on the classification
of the organization. Employment Standard Sections 20 to 32 of the regulation address accessibility
standards governing the employment relationship. In particular, the
IAS creates obligations for employers with respect to recruitment,
accessible information, return to work, career development and
advancement, and individualized workplace emergency response
information for employees with disabilities. Organizations should
take note of the latter requirement for individualized workplace
emergency response information, which has a compliance deadline of
January 1, 2012. The remainder of the employment standards are
being phased in between January 1, 2013 and January 1, 2017. The transportation standard is contained in sections 33 to 80 of
the IAS regulation. Between July 1, 2011 and January 1, 2017,
municipalities, designated public sector organizations, school
boards, specialized transportation service providers and
conventional transportation service providers will be required to
comply with numerous general and technical requirements, including
courtesy seating, announcements and modifi cations to vehicles, and
to ensure that the public and persons with disabilities are
consulted in making decisions with respect to municipal
transportation. The IAS also contains directions for the AODA director when
exercising his discretion in levying administrative monetary
penalties for violations of both the ASCS and the IAS. In
particular, the regulation prescribes that the director should
consider both the severity of the impact of the contravention and
the contravention history of the offending person or organization
on a scale of "minor," "moderate," or
"major". As a result, the minimum penalty for individuals
and unincorporated organization is now $200 and the maximum penalty
is $2,000. For corporations, the minimum penalty is $500 and the
maximum penalty is $15,000. The regulation also imposes a daily
"cap" on daily administrative monetary penalties -
$50,000 for individuals or unincorporated organizations and
$100,000 for corporations. Conclusion A failure to comply with the requirements of the AODA and
related regulations can trigger a number of enforcement mechanisms,
including orders, administrative monetary penalties and
prosecutions, and maximum daily penalties and fi nes of $100,000.
As a result, organizations across the province should work
diligently towards compliance prior to the deadlines prescribed in
the regulation. Gowlings provides consulting services to its clients to assist
them in complying with the requirements of the AODA, including
compliance with both the ASCS and the IAS. Ontario WSIB Delays Mandatory Registration in the
Construction Industry Ontario's Workplace Safety and Insurance Board (WSIB) has
announced that mandatory registration for independent operators,
sole proprietors, some executive offi cers and some partners in a
partnership who do not have employees but work in the construction
industry will take effect as of January 1, 2013. Under Ontario's current system, independent operators, sole
proprietors, executive offi cers and partners in a partnership are
exempt from having to register and pay premiums for insurance. The
current system allows for a gap in the workers' compensation
system for some individuals who are at signifi cant risk for a
workplace injury. Those individuals are not required to pay into
the workers' compensation system, and are not eligible for wage
loss benefi ts in case of a workplace injury. The new system looks
to ensure that everyone pays their fair share of insurance
premiums, and will provide insurance coverage and services for
those individuals who would not otherwise have been covered. As of January 1, 2012, the WSIB will be launching an education
campaign to ensure that everyone impacted by the mandatory coverage
requirements know of the changes and how they may be impacted.
Individuals in construction may choose to preregister for coverage
now, and their coverage will take effect in 2013. Those individuals
would not be required to pay any premiums until 2013. The mandatory registration requirements will assist employers
who hire independent operators or individuals to perform
construction work, as they will now be able to obtain Clearance
Certifi cates for these individuals. The new legislation will also
mean some changes for construction employers who are currently
registered for coverage, as they may have to pay additional
premiums for executive offi cers who have been exempt from coverage
under the current system. Employers are encouraged to review the
WSIB's website, or contact the WSIB for information about
changes that may impact them. Avalanche Safety in the Workplace Many workplaces in British Columbia are situated in terrain
where snow avalanches may occur, such as forestry operations, ski
hills, ecotourism, transportation and utilities. As of January 2,
2012, the Canadian Avalanche Association's avalanche forecast
for most of British Columbia is either "high," meaning
that humantriggered avalanches are likely, or
"considerable," where natural avalanches are likely and
human– triggered avalanches are very likely. Two fatal
avalanches in the last days of 2011 killed two backcountry skiers,
one a ski patroller at Whistler- Blackcomb who was skiing in the
resort's backcountry, the other a tourist on a heli-skiing trip
near Revelstoke. Employers whose operations may put their employees
at risk of being caught in an avalanche, whether working in
avalanche-prone terrain or driving on roads that cross through
avalanche slide paths during months when avalanches pose a risk,
should identify and assess the risks of avalanches and take the
necessary steps to protect their workers. In September 2011, WorkSafeBC revised its guideline for snow
avalanche assessment under section 4.1.1 of the Occupational
Health and Safety Regulation (British Columbia) (Regulation).
The guideline refers to a senior vice president directive that has
been issued providing that section 4.1.1 will not be enforced until
December 31, 2013, or until such earlier time as the regulation
review process may come into effect. However, the Guideline
explains that employers still have statutory obligations to have
safety assessments and plans in place, and furthermore advises
employers to rely on "qualified persons" knowledgeable in
the work, the hazards involved, and the means to control those
hazards, to identify and control avalanche risks. Section 4.1 of the Regulation requires workplaces to be planned,
constructed, used and maintained to protect from danger any person
working at the workplace. Section 4.2 states that the employer must
ensure that each building and temporary or permanent structure in a
workplace is capable of withstanding any stresses likely to be
imposed on it. Under section 115(1) of the Workers Compensation
Act (British Columbia) (Act), every employer has a duty to
ensure the health and safety of all workers working for that
employer, and of any other workers present at a workplace at which
that employer's work is being carried out. Furthermore, section
115(2)(e) of the Act requires that persons working in the avalanche
hazard area receive the necessary information, instruction,
training and supervision. Although not presently being enforced,
section 4.1.1 of the Regulation provides guidance on what measures
can be taken to ensure compliance with the other statutory
requirements. Taking reasonable steps to follow those provisions
could likely be used as evidence of due diligence. In early December 2011, WorkSafeBC updated several guidelines
relating to the heights for guardrails on work platforms relating
to sections 4.55 and 13.2 of the Occupational Health and Safety
Regulation (British Columbia), the use of control zones and
safety monitors for fall protection, and electrical safety
procedures under the Regulation section 19.15 and 19.16(2)(a). As of February 1, 2012, a number of amendments to the
Occupational Health and Safety Regulation will be in
effect. These include amendments relating to updating asbestos
requirements, atmospheric testing of confined spaces by a qualified
person, safer driven-feed mobile chipper requirements, and workers
riding on rear-mounted work platforms on a vehicle for retrieving
traffic cones. One amendment to Part 20, Construction, Excavation
and Demolition, requires that concrete pumps and placing booms meet
the requirements of Canadian Standards Association Standard
Z151-09. Several requirements for "prior approval" or
"prior permission" before proceeding with certain types
of work or using certain work arrangements under Part 5, Chemical
Agents and Biological Agents, relating to extended work periods,
Part 14, Cranes and Hoists, relating to chimney hoists, Part 19,
Electrical Safety, relating to high voltage, and Part 21, Blasting
Operations, relating to mobile drill rigs, have also been
removed. For details of the approved amendments and explanatory notes,
visit the WorkSafeBC website at http://www2.worksafebc.com/
Publications/OHSRegulation/Home. asp and click on the link to
the February 1, 2012 pending regulatory amendments. Random Alcohol Testing Case Approves use of Breathalyser
on Employees In a recent, important decision, Irving Pulp and Paper Limited
has been lawfully permitted to impose random alcohol testing by
breathalyser on employees. The New Brunswick Court of Appeal
unanimously ruled that the lower court judge was right in upholding
the testing policy of the employer. Irving Pulp and Paper Limited operates a paper mill in New
Brunswick. Because of problems with alcohol use and alcoholism
among its employees, the paper mill implemented a policy of annual
random alcohol testing of 10 per cent of the workers in
safetysensitive positions. The names of the workers would be
randomly selected by a computer program. Although a worker passed
his random alcohol breathalyser test, he fi led a grievance with
the Union complaining that this violated his right to privacy, and
his right to be free from discrimination on the basis of a
disability. The Arbitration Board ruled that the policy, without a
history of prior incident supporting its development, was
inappropriate and unenforceable. The arbitrator held that
"without cause" or random alcohol testing through a
breathalyser was not reasonable. In balancing the employer's
interest and obligation to provide a safe workplace, with the
employees' rights of privacy and freedom from discrimination,
the Arbitration Board held that the employees' interests
outweighed those of the employer. The majority Arbitration Board decision was overturned on a
judicial review by a Judge that was ultimately upheld by the New
Brunswick Court of Appeal. Due to many high-risk pieces of
equipment and processes at the paper mill, the Court accepted the
employer's argument that workers are exposed to a high degree
of danger, and in this inherently dangerous workplace, a policy of
random alcohol testing was justifi ed even without a history of
alcohol-related problems at the workplace. The court acknowledged that the use of alcohol may be a
prohibited grounds of discrimination under Human Rights legislation
as a "disability". Therefore, random alcohol testing must
be justifi ed as a reasonable good-faith requirement. The use of a
breathalyser as a means to detect impairment by alcohol was
inherently more reliable than testing workers for drugs. Therefore,
the Irving Pulp and Paper decision stands for the proposition that
workplace safety is a valid justifi cation for alcohol testing, as
long as the employer can show the concern is genuine for
workers' safety, and the testing is a reasonable and necessary
precaution to protect the workers and the property at the plant.
This case will support employers with signifi cant workplace
dangers in their attempt to conduct random alcohol testing, before
there is a serious incident at the workplace. Racking and Storage Hazards Blitz at the Ministry of
Labour The Ministry of Labour (MOL) decided to focus its inspections on
racking and storage hazards at industrial workplaces across
Ontario. As part of the Safe At Work Ontario strategy, MOL
inspectors will target hazards involving the installation, use,
maintenance and repair of racking and storage systems. Specifi
cally, they verify the following: MOL inspectors will focus their inspections at workplaces that
has been identifi ed as high-priority due to potential hazards
involving racking and storage systems, workplaces with poor
compliance history, and workplaces where there are complaints in
relation to racking and storage systems. According to the MOL, workplaces with racking and storage
facilities such as warehouses, distribution centres, retail
operations and manufacturing plants may contain potentially serious
hazards. Employers and supervisors must take every precaution
reasonable to ensure the safe operation and maintenance of racks.
Between 2006 and 2010, three workers were fatally killed and 45
workers received serious injuries in relation to racking and
storage incidents. Improper racking and storage can result in
materials falling from the racking and storage systems, materials
blocking fi re and emergency exit routes, sprains and strains from
improperly lifting loads or moving loads that are too heavy,
racking system collapsing, and spillage of materials that may
result in slips, trips and falls and/or environmental damage. To prevent injuries and fatalities related to racking, we
recommend the following: The CSA Standard A344.2-05 User Guide for Steel Storage Racks/
Standard for the Design and Construction of Steel Storage Racks is
a great resource for ensuring a safe environment where storage
racks are utilized. The CSA Standard contains useful information
including racking specifications, installation, inspections and
hazards. "Due Diligence" may require insubordination or
a breach of confidentiality, says Court The Nova Scotia Provincial Court has delivered a troubling
judgment for occupational health and safety professionals. James Della Valle was the OHS Coordinator for the Cape Breton
Island Housing Authority when on October 4, 2005 some colleagues
told him about a piece of old asbestos found at work. Mr. Della
Valle sent it for testing which confirmed that it contained
asbestos. The lab also advised about the hazards of asbestos. Mr.
Della Valle advised his supervisors in person and in writing about
the issue and how to deal with it. One of the supervisors, Mr.
McNeil, in turn reported it to his boss. The Authority did nothing until the matter became known to the
Nova Scotia Department of Labour in 2006 and issued 515 orders for
remediation work. When charged with an offense under the
Occupational Health and Safety Act (OHSA) the
supervisor Mr. McNeil pleaded guilty, saying "the buck stops
with me." The Department of Labour did not agree and charged
Mr. Della Valle under s. 17 of the OHSA for failing to take every
precaution reasonable in the circumstances to protect the health
and safety of persons in the workplace. In the Court's view, it was proven "beyond a reasonable
doubt" that Mr. Della Valle had not taken reasonable steps to
protect people. The only question was whether he had been duly
diligent, within the meaning of the term as first defined by the
Supreme Court of Canada in R. v. Sault Ste- Marie. At trial, Mr. Della Valle contended that having obtained
information, reporting it to more senior management and advising
them on how to manage it, he had satisfied both his job description
and his legal duty under the Act. In its judgment the
Court said: There is nothing wrong with what Mr. Della Valle did. The
question is whether what he did was sufficient compliance with s.17
of the OHS Act. After his meetings with MacNeil and Routledge the
defendant assumed a passive role. In convicting Mr. Della Valle and fining him $1,000, the Court
said that working within the job description was not enough to meet
the legal duty; Mr. Della Valle should have done more, such as: The upshot of the Court's ruling is this: if a person's
legal duty exceeds the boundaries of his job description, he must
act anyway – going so far as to nag his superiors,
disclose their failure to act, or even act without authority to
protect people from harm. To be "duly diligent" then,
means to be insubordinate and possibly to violate obligations of
confi dentiality within the company. To many, the public interest of reporting a hazard will seem
more important than a person's loyalty to the employer. Yet
this principle would place a burden on occupational safety
professionals, who are hired specifi cally to identify risks and
advise companies on how to address them. OHS professionals are
hired to fi nd and know about problems, and to fi x them
– when they can. To turn OHS professionals into watchdogs
for the public interest could interfere with the positive
difference they make in thousands of workplaces, and put them in an
impossible conflict of duties. Such a rule, applied broadly, could
do more harm than good and would seem the very opposite of the
practical due diligence envisaged under the law. 2011 Notice of Proposal to Adopt New or Revised
Occupational Exposure Limits or Listings for Hazardous Chemical
Substances The Ontario Ministry of Labour (MOL) is seeking input on the
proposed adoption of new or revised occupational exposure limits
(OELs) or listings for nine hazardous chemical substances. These
hazardous chemical substances and their corresponding OELs are set
out in Regulation 833, Control of Exposure to Biological or
Chemical Agents, R.R.O. 1990 (Regulation). The Regulation, made
under the Occupational Health and Safety Act, R.S.O. 1990,
c.O.1 (OHSA) sets the criteria for controlling worker
exposure to hazardous biological and/or chemical agents in the
workplace. The intent of these controls is to protect workers from
hazardous exposure related to the storage, handling, processing or
use of hazardous chemical and/or biological agents in the
workplace. OELs restrict the amount and duration of worker exposure
to hazardous chemical and/ or biological agents. The Canadian Centre for Occupational Health and Safety (CCOHS)
defines hazardous as potentially harmful. The hazards of a material
are evaluated by examining the properties of the material, such as
toxicity, flammability and chemical reactivity, as well as how the
material is used. How a material is used can vary greatly from
workplace to workplace and, therefore, so can the hazard. Hazardous
substances come in different forms. They may be categorized as one
or more of the following: dust and fibres, gas, vapours, smoke and
fumes, and chemical substance. The proposed changes are based on recommendations by the
American Conference of Governmental Industrial Hygienists (ACGIH).
ACGIH is a private, not-for-profit, non-governmental corporation,
made up of members who are industrial hygienists or other
occupational health and safety professionals. ACGIH publishes
guidelines known as Threshold Limit Values (TLVs) and Biological
Exposure Indices (BEIs) for use by industrial hygienists and safety
professionals in making decision regarding safe levels of exposure
to various chemical and physical agents found in the workplace. A chart posted on the Ministry of Labour's website contains
the proposed new and/or revised OELs or listings for the following
nine hazardous chemical substances: Acetic anhydride, Allyl
chloride, Carbon black, Ethyl benzene, Maleic anhydride, Methyl
isopropyl ketone, 2,4-Pentanedione, Soapstone and
4,4'-Thiobis(6-tert-butyl-m-cresol). Highlights of the proposed changes include the revisions to OELs
or listings for seven hazardous chemical substances currently
regulated, the addition of one substance, 2,4-Pentanedione to be
regulated and the withdrawal of the listing and specifi c exposure
limit for a substance called Soapstone. The ACGIH has recommended
that Soapstone be regulated under the OEL for Talc. Changes to OELs may have an impact on certain components of a
company's industrial hygiene control program such as sampling
and methods used to determine the concentration of the agents. It
is for this reason, among others that the MOL is interested in
hearing comments from stakeholders about the proposed changes. Stakeholder input has historically been, and continues to be, an
essential part of the OEL updating process. As referenced on the
MOL website, stakeholders are invited to submit comments on any or
all of the proposed OEL changes. This consultation opportunity also
allows stakeholders to submit a substance(s) for OEL development.
Submissions must include specific information with respect to the
proposed limit, along with supporting documentation used by a
jurisdiction that has adopted the proposed limit as safe practice,
if any. The consultation period ends February 17, 2012. For
additional information go to the MOL's website at www. labour.gov.on.ca/english/about/
consultations/oels. New OHSA Regulation Proposed to Expedite Resolution Of
Reprisal Allegations On December 16, 2011, the Ministry of Labour released a proposal
to create an additional Regulation under the Occupational
Health and Safety Act (OHSA) to expedite the
resolution of reprisal allegations under section 50 of the OHSA.
This new Regulation would broaden the mandate of the Offi ce of the
Worker Advisor (OWA) and the Offi ce of the Employer Advisor (OEA)
to include the providing of educational information, legal advice
and representation to non-unionized workers and small employers in
respect of reprisal complaints and referrals to the Ontario Labour
Relations Board (OLRB). These additional services would be provided
free of charge. Both the OWA and the OEA are constituted by section 176 of the
Workplace Safety and Insurance Act, 1997, which assigns to
these organizations the functions of educating, advising and
representing workers and employers. The only restriction on this
mandate is that the OWA is to represent workers who are not members
of a trade union, and the OEA is to represent employers that have
fewer than 100 employees. The proposed additional obligations of the OWA remain consistent
with its purpose to educate, advise and represent non-unionized
workers. However, this Regulation proposes to limit the
availability of OEA assistance on reprisal matters to employers
with fewer than 50 employees. This proposed regulation comes in response to recommendations of
the Expert Advisory Panel on Occupational Health and Safety, which
conducted a comprehensive review of Ontario's health and safety
system in 2012. Specifi cally, the Panel recommended: In light of these recommendations and proposed statutory
amendments, employers are reminded that the OHSA prohibits
the dismissal, threat of dismissal, discipline or suspension,
threat of discipline or suspension, penalization, or intimidation
or coercion of a worker because the worker has acted in compliance
with the OHSA or the regulations or an order made
thereunder, has sought enforcement of the OHSA or the
regulations, or has given evidence in a proceeding in respect of
the enforcement of the OHSA or the regulations or in an
inquest under the Coroners Act. Ensuring that all parties are properly informed and adequately
represented in reprisal proceedings before the OLRB certainly has
the potential to speed up the process of resolving reprisal
allegations, provided that adequate resources are allocated by the
Ministry of Labour to support this new initiative. At this time, the Ministry of Labour is inviting public comment
on the proposed Regulation, from December 16, 2011 to January 31,
2012 to the Ministry of Labour within this window to ensure that
their opinions are considered in the drafting of the proposed
Resolution Due Diligence Requires All Workers to be Trained in Safe
Work Procedures In November 2011, BFI Canada Inc. was convicted of charges under
Ontario's Occupational Health and Safety Act following
an injury to a temporary worker. Information from the Ministry of
Labour following the conviction indicates that BFI was convicted of
failing to provide information, instruction and supervision to a
temporary worker. The worker, hired through a temporary personnel
agency, was performing garbage collection services when he suffered
an injury to his foot. The worker exited the garbage truck while it
was still moving and the truck ran over it. BFI had procedures on
the safe collection of garbage but did not advise the temporary
worker of them. BFI was fined $150,000 upon conviction, plus a 25
per cent victim surcharge. Health and safety legislation across the country sets out duties
for workplace parties, including employers, supervisors and
workers. Employers are generally required to take all reasonable
precautions to protect workers at the workplace. That would include
their own workers, and anyone else performing work at the
workplace. Unfortunately, we do see cases where temporary workers
are not given the same training as an employer's own
workers. Discussions with employers who hire workers thorough temporary
personnel agencies indicate that they do not provide the same
training to temporary workers as they do to their own workers as
there is a perception that those workers are sent from the
personnel agency with the training required to perform the work.
Although temporary personnel agencies often do provide training to
workers, it is still the principal employers' responsibility to
ensure that any workers are trained on work- or site-specific
hazards, including any specifi c work procedures in place to ensure
worker safety. From a due diligence standpoint, employers should not
discriminate between their own workers and temporary workers.
Employers should ensure that all workers performing their work, or
exposed to hazards at their workplace are provided with the
information and instruction for their protection. This may include
orientation training as well as information on all safe work
procedures required for their protection. The BFI conviction serves
as the latest example of the importance of providing such
instruction and is meant to act as a message to other employers to
ensure that such training is provided. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
By:
Ryan D. Campbell, B.A., J.D., AssociateApplication
Compliance
Transportation Standard
Enforcement Mechanisms
By:
David Marchione, BA, CHSC, CRSP, OHS Consultant/ Paralegal
By:
Shane Hopkins-Utter, B.A., M.A., J.D., Associate
By:
Norm Keith B.A., J.D., LL.M., CRSP, Partner
By:
Kitty Leung, H.B.Sc., M.P.H., OHS Consultant
By:
David Law, B.A., LL.B, Partner
By:
Roshni Vaz, B.A.Sc., CRSP., OHS Consultant
By:
Ryan D. Campbell, B.A., J.D., Associate
By:
David Marchione, BA, CHSC, CRSP, OHS Consultant/ Paralegal
ARTICLE
9 February 2012
OHSLAW Report - January 2012
Gowling WLG
Contributor
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With a the deadline for compliance with the Accessibility Standard for Customer Service (ASCS) Regulation to the Accessibility for Ontarians with Disability Act (AODA) on January 1, 2012, now past, organizations across Ontario should now turn their minds towards compliance with the second phase of the AODA accessibility regime – the Integrated Accessibility Standard (IAS).