21 Sep 2015
By Devyn Coady 2015/09/21
An Elevation of Safety Standards: Working at Heights and Alcohol Testing in Construction Industry
For employees and employers alike, safety is the number one concern in the construction industry. Here are some new developments that will help you keep up with safety standards.
WORKING AT HEIGHTS
In Ontario, falls are one of the leading causes of fatal accidents in the workplace. Working at heights in an unsafe manner, often due to a lack of training, is one of the largest contributors to this statistic, especially for workers in the construction industry. “Heights” under the Occupation Health and Safety Act and its regulations are defined as anywhere where the surface a worker might fall to, is more than three metres (10 feet) from where he or she is working.
On April 1, 2015, under the Occupation Health and Safety Act O. Reg 297/13, new training requirements for workers who workat heights came into effect in Ontario to help limit some of these fatalities.
These new requirements force construction companies to offer, and workers to complete, this new training program before the workers can work at heights.
Employers have a positive obligation to provide this new training to all workers who work at heights. In order to do so, they must contact one of the seven training providers appointed by the Ministry of Labour. To date, there are over 200 instructors available to deliver the approved programs.
While it is essential for all workers to be up to date with this new training, it is important to note that workers who had fall protection training under section 26.2(1) in O. Reg. 213/91 before April 1, 2015, will have until April 1, 2017 to get trained under the new requirements.
The approved programs include new safety standards training relating to rights and responsibilities of working at heights, hazard identification, ladder safety, and proper usage of personal protective equipment. With this, it may also become a positive obligation on the employer to provide the worker with updated safety equipment as mandated by the training program.
The training program consists of two sections. The first is a theory section based on knowledge and awareness. The second is a hands-on approach that includes demonstrations of procedures.
Once completed, the training will be valid for three (3) years from the date of completion.
In Communication, Energy and Paperworkers Union of Canada, Local 30, v. Irving Pulp & Paper, Ltd. the Supreme Court of Canada brought clarity to the law for alcohol testing in a unionized workplace. In this case, the employer’s policy included a universal random alcohol testing clause wherein 10 percent of employees deemed to be in safety sensitive positions were to be randomly selected for surprise breathalyser tests over the course of a year.
The Supreme Court said that an employer can only impose a rule with disciplinary consequences if the need for the rule outweighed the harmful impact on employees’ privacy rights. The question was whether there was “reasonable cause” to perform testing.
In a safety-sensitive work environment, employers are generally entitled to test individual employees on a case-by-case basis if there is “reasonable cause” to believe than an employee was impaired while on duty, where the employee was directly involved in a workplace accident or incident, or the employee is returning to work after treatment for substance abuse. A unilaterally-imposed policy of random testing for all employees in a dangerous workplace is not permitted unless there is a general problem of substance abuse in the workplace.
In this case, the Supreme Court of Canada ruled that the employer’s mandatory random alcohol testing was not justified. Although there had been eight documented alcohol consumption or impairment incidents over a fifteen year period, there had never been any accidents, injuries or near misses associated with the alcohol use.
The balance struck by the court between safety and privacy in non-unionized environments is slightly different. Random alcohol testing is permitted where:
In a non-unionized environment, an employer does not have to show that there is a general problem of substance abuse in the workplace to implement random alcohol testing.
As is the case in a unionized environment, employers of non-union workplaces may also carry out testing on a case-by-case basis in a safety-sensitive environment where there has been an accident, or where there is a suspected case of alcohol impairment. However, an employer must have a written policy in place before performing any testing.
At the end of the day, when in doubt as to your obligations or rights concerning any safety measures, it is best to seek legal advice.