Does your workplace have a naloxone kit? Are you legally required to have one?

The opioid crisis across Canada continues to grow. According to Health Canada, between January 2016 and March 2022 there were more than 30,800 apparent opioid toxicity deaths. In 2021 alone, there were 7,902 deaths, which equates to approximately 22 deaths per day.

In light of the opioid crisis, the Ontario government passed Bill 88, Working for Workers Act, 2022 (Act), which amended, among other things, the OHSA to prescribe the inclusion of naloxone kits in select workplaces.

The OHSA now requires an employer who becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at the workplace to provide and maintain a naloxone kit in the workplace.

The legislation also prescribes that the kit must remain in the charge of a trained worker who works in its vicinity, that the employer provide training for the worker, and that disclosure of personal information by the employer shall be limited to that necessary to comply with the legislation.

Effects of the Change

In a March 2022 announcement, the Ontario government provided a few examples of "high-risk" settings where the requirement to provide and maintain a naloxone kit may apply, including construction sites, bars and nightclubs. Notwithstanding this announcement, it is important to note that the Act does not identify any specific sectors of application, nor rule any out. Furthermore, the requirement is limited to an employer's knowledge of a risk of a worker having an opioid overdose—not a member of the public, a client, etc.

However, it is not clear as of yet how broadly these amendments to the OHSA will be interpreted and applied, in particular, to workplaces where overdoses are not reasonably deemed to be a potential hazard to a worker.

To provide a few examples, if an employer (in any sector) has evidence of an opioid issue amongst its workers (e.g. a worker has overdosed on or off site, or opioids have been found within workplace areas restricted to workers) it is clear that the employer is aware, or ought reasonably to be aware, there may be a risk of a worker having an opioid overdose at work.

On the other hand, the amendments to the OHSA can broadly be read to include a circumstance where an employer is not aware, and has no cause to reasonably be aware, that its workers may overdose at work, but is aware that opioids may be, or have been, used in spaces within its workplace that are open to the public (e.g., a public bathroom). Here, there is a possibility—albeit potentially remote—that a worker "may" be at risk of having an opioid overdose at work by coming into contact with opioids through some means. A liberal interpretation of the amended language would likely require the employer to provide and maintain naloxone kits in the workplace and adhere to additional requirements set out below.

As such, it is prudent to understand the additional responsibilities which may be required of employers—despite the absence of a clear indication that an opioid overdose is a potential hazard to workers.

Practical Steps to Ensure Compliance

Employers with naloxone kits in the workplace may wish to consider:

  • whether the kit(s) will be used solely for workers, or whether they will also be used for the public, clients, etc.
  • which workers will be trained on the use of naloxone (e.g. first aiders, workers who are scheduled daily) and the topics to include in training (e.g. recognizing an opioid overdose, administering naloxone, hazards related to administering naloxone)
  • how and when they will provide training for all workers on topics such as how to identify an opioid overdose
  • the policies and procedures needed to address such issues as where the kit(s) will be stored, who will be trained on their use, how often the kit(s) will be checked and replaced, etc.
  • how the program will be implemented and communicated to workers

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.