Canadian Employment Law Today

October 21, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2020 4 Hazards at home during the pandemic OCCUPATIONAL HEALTH and safety (OHS) legislation creates a strong internal responsibility system that considers health and safety the responsibility of everyone in the workplace — including the employer, supervisors, management, and workers. Most workplaces in Canada are subject to provincial or territorial OHS legislation. Federally regulated workplaces are governed by the federal OHS laws set out in Part II of the Canada Labour Code (CLC). During the COVID-19 pandemic, many Canadians are performing work for their employers at home. This raises the ques - tion of who has responsibility for potential hazards to which workers may be exposed while doing so. Below we consider examples of how the subject is approached in certain jurisdictions. Ontario excludes home office, but federal guidelines promote shared responsibility Ontario's Occupational Health and Safety Act (OHSA) requires a member of a joint safety committee to inspect the physical condition of the workplace or a health and safety representative to do so if such a com - mittee is not required. In both cases, the purpose is to identify situations that may be a source of danger or hazard to workers. The OHSA defines a "workplace" as "any land, premises, location or thing at, upon, in or near which a worker works." However, s. 3(1) of OHSA provides: "This Act does not apply to work performed by the owner or occupant or a servant of the owner or oc - cupant to, in or about a private residence or the lands and appurtenances used in con- nection therewith." Accordingly, the duty in the OHSA to inspect the physical condition of the work- place does not apply to the employee's pri- vate residence. Nothing on the health and safety web page of Ontario's Ministry of Labour, Train- ing and Skills Development addresses re- sponsibility for the elimination of hazards and ensuring the safety of an employee who works for an employer while in their home. However, the federal government's Canadian Centre for Occupational Health and Safety (CCOHS) addresses Telework/ Telecommuting. The CCOHS encourages the development of a written agreement set - ting out responsibility for health and safety issues and workers' compensation if a tele- worker is injured when working from home and provides a list of additional important health and safety issues. Furthermore, it states, "Teleworkers should not be subjected to reduced health and safety standards at home." Other health and safety issues include: • Will the employer or health and safety committee have access to the house for safety inspections? Or will alternative arrangements be made such as the worker using checklists or submitting photos of the work area? • What parts of the house will be consid - ered the "workplace"? Is the bathroom and/or kitchen included? • Teleworkers must immediately report any incident or injury to their supervisor. • How will incidents be investigated? As the CCOHS encourages a written agree- ment, employers in all provinces, including Ontario, should consider developing such agreements with any employees who work from home to ensure that they "not be sub- jected to reduced health and safety stan- dards at home." Alternatively, they should consider developing a Work from Home Policy that sets out responsibilities. Private residences not excluded in B.C. Section 3.5 of British Columbia's Occu- pational Health and Safety Regulation (OHSR) provides: "Every employer must en- sure that regular inspections are made of all workplaces, including buildings, structures, grounds, excavations, tools, equipment, ma- chinery and work methods and practices, at intervals that will prevent the development of unsafe working conditions." The OHSR also stipulates that the statute "applies to all employers, workers and all other persons working in or contributing to the production of any industry within the scope of the OHS provisions of the Work - ers Compensation Act." The OHS provisions of the Workers Compensation Act (WCA) define "workplace" as "any place where a worker is or is likely to be engaged in any work and includes any vessel, vehicle, or mobile equipment used by a worker in work." The OHSR further provides for a safe workplace in stating, "A workplace must be planned, constructed, used and maintained to protect from danger any person working at the workplace. There is no exclusion in the OHSR or the WCA of persons engaged in work in a private residence. Given the broad definition of "workplace" under the WCA, a private residence may, in certain circum - stances, fall within that definition. The OHSR also addresses workers as- signed to "work alone or in isolation" de- fined as "working in circumstances where assistance would not be readily available to the worker (a) in case of an emergency, or (b) in case the worker is injured or in ill health." The OHSR imposes additional obli - gations on employers with regard to workers who work alone or in isolation, such as haz- ard identification, elimination and control and procedures for checking on the worker's well-being. Employers should be aware that where a worker lives alone or in a remote location, these requirements may apply. At minimum, employers in B.C. should prepare a health and safety policy for work - ing from home that outlines the roles, duties and responsibilities of the employer, man- agers, supervisors and employees. Work- SafeBC recommends that employees should be required to conduct their own assessment of the "workplace" and report any hazards to their manager or supervisor. This would fulfil the employer's obligation to regularly inspect the employee's workplace. A Work from Home Policy should also include pro - CASE IN POINT: HEALTH AND SAFETY The occupational health and safety system is based on the premise that workers have the right to know about potential hazards to which they may be exposed, be part of the process of identifying and resolving workplace health and safety concerns and refuse work they believe is dangerous to their own health or that of another worker. But how does this apply to people working from home? BACKGROUND 'Teleworkers should not be subjected to reduced health and safety standards at home.' — CCOHS BY RHONDA LEVY, MONTY VERLINT AND KATE BRESNER How do employees working from home fit into an employer's obligation to protect employees from workplace safety hazards?

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