A heavy storm in Southern Ontario in the Spring of 2022 (labelled a "Derecho" by our meteorologists) caused extensive property damage over a wide swath of some of the most densely populated area of the country. It served as yet another reminder of climate change predictions that extreme weather events are likely to increase in severity and frequency in the coming years. This in turn could well require a re-assessment of an employer's due diligence systems to ensure that there is adequate assessment of and protection from foreseeable risks.
In Ontario, the Occupational Health and Safety Act imposes a duty on every employer to "take every precaution reasonable in the circumstances for the protection of a worker." Similar obligations are imposed by legislation across the country. In practice, this means that liability can be minimised or avoided entirely if it can be shown that "all reasonable care" was exercised to prevent the particular event from occurring, perfection is not required. But systems that fail to account for what is "reasonably foreseeable" are not excusable. Due diligence systems cannot be static. They need to evolve and adapt to new information. Typically, we think of "continuous improvement" concepts as applying to learning from day to day operations, "near misses" and evolving industry knowledge. But this is by no means a closed list. New factors need to be considered as they become relevant.
So how should we think of climate change and occurrences labelled as "extreme weather events"? On its face, one might be tempted to say that by being "extreme" the event is inherently unforeseeable. But as evidence mounts in support of the scientific predictions, what was once considered "extreme" may well become more common and thus foreseeable. If so, climate change and severe weather impacts will need to be considered when assessing the adequacy of any workplace due diligence program.
The implications for this are wide ranging. World Health Organization publications list several known hazards resulting from climate change. In addition to an increase in severity and frequency of extreme weather events, these include increased ambient temperature, increased air pollution and increased exposure to UV radiation. A published survey of literature lists impacts of increased ambient temperature to include an increased risk of bodily harm and injury caused by fatigue and reduced vigilance. Work performed at a high ambient temperature can change worker skills and capacities when physical tasks are involved. This can then have adverse consequences on worker safety. The potentially negative impacts of increased ambient temperature at the workplace could even be exacerbated by other intersecting variables such as a worker being more than 45 years old, overweight, pregnant, having pre-existing health issues or being required to wear PPE.
Workplaces likely to be most impacted by these factors would include any involving outdoor work, such as construction sites, postal services, first responders and many natural resource operations. Indoor workers can also be impacted if they work in poorly ventilated or non-air conditioned environments whether that be manufacturing, office work or even education and health care.
Another predicted impact of increased ambient temperature is the increased risk of exposure to airborne pollutants. Volatile chemicals (even something as simple as cleaning supplies) will diffuse quicker and more widely in a warner environment. Forest fires cause an increase in airborne particulate matter which may require outdoor workers to wear additional PPE and may also affect the efficiency of HVAC systems. Ambient temperature increases cause higher ground level ozone levels which in turn could increase the frequency and severity of asthma attacks. Allergy seasons and reactions are also seen to be increasing – one report claims that the northern hemisphere pollen season has increased by 15 days in the past three decades. All of these changes could easily impact a worker's ability to perform tasks with the same degree of skill, diligence and good judgement previously seen in more benign conditions.
Extreme weather events can make previously safe work areas hazardous. Those living in hurricane prone areas already know the hazards caused by trees, unsecured outdoor bins and other debris. Building envelopes may not have been designed for the changed environment. Unsuspected water ingress can then lead to mold issues. Portable trailers may no longer be appropriate or safe in some work places. Power outages during a work day could be a catalyst for a host of previously unanticipated workplace hazards. Any heavy industry employer will know well the hazards of unexpected shutdowns and poorly planned re-starts. Other workforces could benefit from some of the lessons learned in that sector.
Climate change is leading to the adoption of a host of new technologies in the work place. These can bring their own set of new challenges. Consider for instance the expected increase in electric vehicles, electric charging stations and the greater use of large capacity batteries and fuel cells – effectively a greater prevalence of lithium polymers and hydrogen in a host of new locations. These may create new workplace hazards both in facilities involved in their manufacture as well as those using them. New material handling and waste disposal procedures will be needed. The efficiency, service life and safety of infrastructure and buildings may need to be reassessed. New hazard analysis, training and maintenance procedures will be required.
So what is a prudent employer to do in light of all this if they are to truly "take every precaution reasonable in the circumstances for the protection of a worker"? A starting point is to became aware of these rapid changes taking place at their own workplace and take proactive steps to ensure foreseeable risks are minimized. Employers should take steps to identify new hazards likely to arise at their workplace as the wide-ranging impacts of climate change take effect. They will need to develop new training and awareness tools for their workforce. Changes to the physical environment such as air conditioning, or newer types of PPE might be needed. Work hours and break frequency should be re-assessed. Employers should engage in discussions with other employers in their own sector, other sectors and possibly also other countries to ensure they are keeping up with the changing standards. Engage engineering and workplace consultants to assist as needed – reliance on expert advice and keeping up with industry standards are both key components of any due diligence system.
Ultimately responsible persons, be they employers, owners or governors, will need to review all aspects of their infrastructure and operations to assess whether existing due diligence is sufficient to deal with what is now clearly a foreseeable risk of a more physically hazardous workplace arising from the many expected impacts of climate change. What was once considered sufficient to ensure worker safety, may well no longer be so in the eyes of the law unless these predicted changes are taken into account.
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.
