New requirements under the Occupational Health and Safety Act (the “OHSA”) come into effect June 1, 2023, requiring certain Ontario workplaces to provide naloxone kits and training to workers on how to administer naloxone, a drug that can temporarily reverse the effects of an opioid overdose. Commonly used opioids include morphine, heroin, oxycodone, fentanyl, and codeine.
Who Must Comply with the Naloxone Requirements?
An employer that becomes aware, or ought reasonably be aware, of a risk of worker opioid overdose, where the worker performs work for the employer, will be required to provide naloxone kit(s), maintain kit(s), and ensure training on the administration of naloxone, among other requirements imposed by the OHSA and the Naloxone Kits regulation, O. Reg. 559/22 (Naloxone regulation). There are currently two ways to administer naloxone, by intra-muscular injections or by nasal spray.
Some Considerations to Help Determine if Kits & Training May Be Required:
Questions for Ontario employers to consider to assist in determining whether naloxone kits and training may be required at their place of work, include the following:
1. Is the employer aware of a risk of an opioid overdose?
An employer may become aware of a risk of an opioid overdose if there has already been an overdose at the workplace, or a worker voluntarily discloses the risk of an overdose, or if an employer observes opioid use, or discovers discarded drug paraphernalia, such as needles, or if the Joint Health and Safety Committee or other, discloses this risk to the employer.
2. Is there a risk of an opioid overdose at the employer’s workplace?
The risk of overdose must be at the workplace where the worker performs work for the employer. The requirements do not apply if the risk of an overdose occurring is outside of the workplace.
3. Is the risk of an overdose to a worker?
The risk of an opioid overdose must be in relation to a worker who performs work for the employer. The OHSA defines the term “worker”, and includes, for example, students. The requirements do not apply where the only risk of an opioid overdose is to a non-worker, such as a customer, a client, a patient, or other member of the public.
The naloxone requirements under the OHSA may not apply to an Ontario employer who reasonably answers ‘No’ to the listed questions; however, a detailed assessment of additional and relevant factors specific to each workplace ought to be conducted prior to an employer making a determination on whether these new obligations apply to their respective workplace(s).
The Law and Kits
If it is determined that the naloxone requirements apply, then, the relevant sections of the OHSA require the following from an employer to achieve compliance:
- Provide and maintain in good condition a certain number of naloxone kits in the workplace;
- Ensure each kit is in the charge of a worker who has received appropriate training; and
- Meet additional requirements as may be prescribed by the legislation.
The Law and Training
Worker training shall include training to recognize an opioid overdose, to administer naloxone and to acquaint the worker with any hazards related to the administration of naloxone, and shall meet such other requirements as may be prescribed by the legislation.
The Naloxone regulation imposes further obligations on an employer in regard to the provision, maintenance, and contents of each naloxone kit, whether an injectable or nasal spray kit.
As with other requirements under the OHSA, these requirements will be enforced by the Ministry of Labour, Immigration, Training and Skills Development, through inspections, investigations, orders, prosecutions, and penalties.
The cost of non-compliance with these, and other health and safety obligations is now $500,000 for an individual/supervisor and up to $1.5 million for a corporation, director or officer of a corporation, per offence, along with the possibility of up to 12 months incarceration for individuals, directors, or officers.
It is advisable for employers to consider and comply with these new requirements, as appropriate. Employers are encouraged to be proactive in assessing opioid risks at the workplace and identifying the factors set out in our update, and in seeking advice from health and safety lawyers.
Ontario is currently providing naloxone kits as well as training needed to help equip staff with the tools to respond to an opioid overdose through the following: Workplace Naloxone Program; Canadian Red Cross; and St. John Ambulance.
If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.