Canada: June 6, 2015 Is The Deadline For Safe Management Of Asbestos By Employers

In June 2013, the Regulation respecting occupational health and safety1 (the "Regulation") was amended to impose new obligations on employers regarding the safe management of asbestos. Employers have until June 6, 2015 to comply with these obligations. 

Context

Asbestos was long used as thermal, acoustical and electrical insulation. As a result, many buildings in Quebec contain asbestos material. Since the 1980s however, the use of asbestos has been reduced and restricted because of its adverse health effects. 

The Regulation has contained rules regarding asbestos for many years, but until now they did not impose preventive management measures on employers in respect of asbestos-related risks.  

New obligations imposed by the Regulation

The Regulation now obliges employers to inspect buildings where their employees work: 

  • In the case of buildings built before February 15, 1990, the building must be inspected in order to locate "flocking" containing asbestos and verify the state of such material. Flocking is a mixture of friable materials applied by spray to cover a surface.
  • In the case of buildings built before May 20, 1999, the building must be inspected in order to locate "heat insulating material" containing asbestos and verify the state of such material. Heat insulating material means insulating material that covers a facility or equipment to prevent heat loss.   

It is important to note that these obligations apply to all employers, regardless of whether they own or lease the building where their employees work. In cases where the employer leases the building, the employer may reach an agreement with the owner on responsibility for inspection costs or the cost of any remedial work that may be required. However, responsibility under the Regulation for inspections and remedial work rests solely on the employer, and not on the building's owner. 

It should also be noted that the Regulation creates a presumption that asbestos is present in flocking and heat insulating material, unless the employer demonstrates otherwise. The presumption can be rebutted by providing verifiable documentary information (such as a technical description establishing the composition of the material in question) or a sampling report that complies with a specific provision of the Regulation. 

The initial inspection of flocking and heat insulating material must be completed by June 6, 2015 at the latest, and subsequent inspections must be carried out every two years. This inspection schedule does not apply however where flocking and heat insulating material containing asbestos is entirely enclosed in a permanent structure resistant to fibres and access to such material is only possible by a destructive operation of the structure. 

In addition to flocking and heat insulating material, the Regulation also contains rules on materials and products containing asbestos. In cases where an employer intends to have work performed that is likely to generate dust, it must first check whether asbestos is present in materials or products that potentially may contain it (such as drywall, ceiling tiles, etc.) and if such materials do contain asbestos, the employer must take the necessary measures to protect its employees. The Regulation also obliges employers to inform employees who could potentially be exposed to asbestos of the relevant risks, prevention methods and safe working methods. 

It should also be noted that when such materials are likely to generate dust containing asbestos fibres, remedial work must immediately be undertaken, and performed in accordance with the relevant provisions of the Safety Code for the Construction Industry2

The Regulation also stipulates that employers must keep and update a register containing the following information and documents: 

  • the date of all inspections
  • the location and condition of flocking
  • the location and condition of heat insulating material
  • the location and condition of other materials containing asbestos
  • any sampling reports showing the absence of asbestos
  • any sampling reports showing the type of asbestos present
  • the nature and date of any work carried out on such materials 

Should the employer move its place of business to another building, the register should be transferred to the subsequent lessee or owner of its former building, in order to ensure that the information is not lost. 

Recommendations

As the June 6 deadline is fast approaching and employers concerned must have completed the initial inspection by that date, we recommend that you lose no time in arranging for such an inspection, if you have not already done so. After the deadline, the Occupational Health and Safety Board (the "CSST") will, in all likelihood, start making inspections to ensure that employers are in compliance with their asbestos-related obligations under the Regulation, failing which statements of offence may be issued.

Footnotes

1 CQLR, c. S-2.1, r. 13

2 CQLR, c. S-2.1, r. 4

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.

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