OHS inspectors appointed by the Ontario Ministry of Labour, Immigration, Training and Skills Development (MLITSD) are conducting field visits to check on employer compliance with the Occupational Health and Safety Act (OHSA) and its Regulations. This brings risk of compliance orders, stop work orders and possible prosecution for high-risk contraventions (or “killer contraventions” as they are sometimes known) found during inspections.
In this article we provide insight into key areas of focus for inspection blitzes in the coming year, and strategic steps for employers to consider before an OHS inspector arrives at the door.
Inspection Blitzes in 2023-2024
The MLITSD runs health and safety compliance campaigns and initiatives focusing on specific hazards of topics. After a period of education, outreach and awareness, MLITSD inspectors conduct random field visits to check compliance with the OHS Act and its regulations. In accordance with the Health and Safety Inspection Compliance Plans 2023-2024, employers in the construction, health care, industrial and mining sectors can expect OHS inspectors at their doors from June 1, 2023 to March 31, 2024, focusing on the following priority areas and issues in particular:
- Health care sector
- Protecting workers from developing musculoskeletal disorder.
- Industrial sector
- Manufacturing and farming sectors where production occurs
- Workplaces where large or bulky materials, articles or things are lifted, carried, or moved, where workers may be at risk of being injured by their movement.
- Lifting devices, manual material handling, machine guarding, training and orientation, and internal responsibility systems.
- Mining sector
- Establishing and maintaining an accredited Common Core training program for all workers in mines and mining plants specific to the type of work they perform
- Section 11 of Regulation 854: Mines and Mining Plants.
- Construction sector
- This sector involves issues of compliance by constructors of construction projects as well as employers who are contractors on site
- Falls from heights in roofing and framing activities
- Single family residential construction, residential re-roofing and multi-family residential in urban areas
- Activities where workers may be struck by material, vehicles or equipment.
- Respiratory protection
- Limiting workers’ airborne exposure to hazardous substances
- Asbestos in building structures
- This issue requires assessments, management and inspections, notices to contractors and compliance by building owners, property managers employers, constructors
- Workplaces where asbestos-containing materials are present in the building structures
- Vulnerable workers
- E.g. young workers, temporary workers, immigrant workers, workers with disabilities, new workers, as well as indigenous, older or racialized workers
- Adequate and appropriate information, instruction and supervision.
Inspectors are not limited to inspecting only the topics identified in these compliance plans. They can apply the OHSA and its regulations to the situation they find at each workplace they inspect.
OHS inspectors can enter an Ontario workplace at any time, unannounced and without a search warrant to inspect to ensure OHSA and regulatory compliance. It’s important to remember that inspectors have wide powers under Part VIII of the OHSA, including the ability to require production of any document, inspect or use any equipment or machinery, remove any documents or take any samples, interview any workers, and issue orders on the spot (for example, to stop work if a contravention is found creating a danger to workers). OHS inspectors can also recommend prosecution for any contravention or failure to comply with the OHSA, Regulations or prior orders. No accident need occur for a prosecution to occur. Prosecutions are not unexpected if an inspector finds a series of high risk violations during a blitz, particularly if there have been prior orders, warnings to the employer, near misses or injuries.
Given these wide powers and planned inspection blitzes, employers should avoid going into crisis-management mode when the inspector arrives. Planning for an inspection, setting up general protocols and processes, knowing in advance who to assemble as the team who will meet or accompany the inspector, and managing and responding to inspector requests properly can minimize the risk of costly, even inappropriate or inaccurate orders, and possible OHS prosecution for a “blitz” issue seen as high risk.
Lack of planning and managing the inspector who arrives with a mandate to conduct an inspection during a “blitz” can potentially result in more orders, tougher compliance requirements that may be difficult to meet or need to be appealed, increased legal liability and the potential for damaging publicity.
An OHS Inspection Response Plan
To successfully handle an OHS inspection to minimize risk, employers are well-advised to consider the following in their advance planning:
- Ensure the workplace has immediate contact information for senior management and OHS management (or an external OHS consultant) who can attend to assist if necessary- if they are not already on site;
- Assign a management representative (and alternate) at the workplace or site to for each shift who will meet, accompany the OHS inspector, address concerns, and convey a responsive and compliant approach. Choose a person who can develop a professional, cooperative relationship with the inspector. That person can arrange for worker representatives to be involved as needed, an OHS Manager, Director or consultant to attend as needed, assist with gathering information as needed;
- Manage compliance basics and get documentation in order before any inspection:
- OHSA and regulations posted
- Workplace Health and Safety policy and program posted
- Violence and Harassment policies posted
- JHSC minutes, inspections, JHAs or risk assessments, specific workplace policies and procedures, relevant training and other key records readily available;
- Proactively show existing safety policies, documentation to the inspector which may address any current blitz issue the inspector may be inspecting for– work at heights training and fall protection risk assessments, traffic management, signaller practices, asbestos assessments, records. If records are not present, undertake to get an appropriate person to search for them and respond (instead of suggesting without thorough search that there are no records, or no compliance measures);
- Ensure management maintains a cooperative stance at all times;, do not engage in behaviour that might be regarded as obstructive or a refusal to comply, or suggests that the employer’s top priority is getting the inspection done and back to work;
- Keep any solicitor-client privileged records such as investigations which are privileged or in contemplation of litigation into past issues, legal advice, privileged workplace audits separate from other records, clearly marked as “Privileged” under lock-and-key—and call counsel immediately for advice if requested or demanded;
- Request the opportunity to discuss any orders or decision before issued, to present positive information on behalf of organization- or undertake to provide answers and documents before any conclusions are arrived at or orders issued;
- Firmly request the opportunity to negotiate reasonable time-frame for compliance if needed for an order – particularly if a solution to the issue identified is complex, unclear, potentially costly or impossible;
- Ensure the company representative ensures all orders and directions are provided to designated management and OHS personnel to be addressed (even if an issue arises and orders are issued at a remote work site or off hours, on weekend). Any order not addressed in timely fashion as required, or worse, ignored or forgotten entirely will certainly result in OHS prosecution of the employer for non-compliance.
All of these steps should minimize the risk or compliance or stop work orders or OHS prosecution arising from a routine OHS inspection during a blitz. Needless to say, they cannot prevent orders, stop work orders or OHSA prosecution where little to no compliance exists. Employers, directors and officers and supervisors should prioritise compliance measures and strategies, strategic responses to OHSA issues and incidents, and ensuring that steps taken to ensure safety in the workplace are well-documented.
If you are concerned with an order or decision issued by an inspector, note that there is a strict 30-day limit for appeals to the Ontario Labour Relations Board.
Penalties for Ontario OHSA non-compliance are high and continue to climb. Last year, the government raised fines for individuals to a maximum of $500,000 and up to a maximum of $1,500,000 for corporate directors, the highest in Canada. This year, the Ontario government is proposing increasing the maximum fines for corporations convicted of an offence under the OHSA from $1.5 million to $2 million, making Ontario the jurisdiction with both the highest potential maximum corporate fines (at least for a first offence) under any health and safety legislation in Canada.
If you have any questions about this topic or any other questions, please contact any member of our national OHS and Worker’s Compensation Practice Group.