What the Working for Workers Act, 2022 Means for the Construction Industry

By Greg Murdoch

With construction workers disproportionately affected by the opioid epidemic, the construction industry should take note of its new health and safety obligations.

On April 11, 2022, the Working for Workers Act, 2022 (the “Act”) became law in Ontario. The Act made many changes to Ontario’s employment landscape.

There are two changes of particular import to the construction industry:

1. The new requirement to keep naloxone kits on site in certain workplaces; and
2. The substantial changes to the penalties for violations of the Occupational Health and Safety Act (“OHSA”).

Preventing and Preparing: Naloxone Kits in the Workplace

As of July 1^st, 2022, employers are required to provide and maintain a naloxone kit in good condition at a workplace where there may be a risk of a worker suffering an opioid overdose. Employers must also ensure that the kit is in the charge of a worker who has been trained to administer naloxone. This new regulation aims to reduce the risk of death by opioid toxicity in workplaces where overdoses are a potential hazard.

Opioids, such as codeine, fentanyl, and morphine, are drugs with pain-relieving properties. They are often prescribed by doctors to patients suffering from acute or chronic pain. Opioids can be highly addictive, especially when used over long periods of time. Some opioid users develop a tolerance to their dosages, leading them to pursue higher dosages through their doctors or through illegal sources. Overdosing on an opioid slows a person’s breathing, which can lead to unconsciousness or even death.

Between March 2020 and January 2021, nearly 2,500 people died from opioid-related causes in Ontario alone.

Naloxone is a fast-acting drug used to restore breathing, temporarily reversing the effects of an overdose from an opioid. Though the effects of naloxone only last around 20-90 minutes, this is often enough time keep a person alive while they are transported to a hospital for life-saving medical care.

Perhaps surprisingly, the construction industry is among the settings identified by Ontario Public Health as high risk for opioid abuse and opioid-related death. Construction workers make up only 3.6% of Ontario’s population, but account for around 8% of the province’s opioid toxicity deaths. An Ontario Public Health study released in July 2022 revealed that 428 construction workers died from opioid-related causes between July 2017 and December 2020. Almost 60% were employed at the time of their death. Previous reports have shown that one-third of people who were employed when they died of opioid toxicity worked in the construction industry.

The reasons for the disproportionate effect of opioids on the construction industry are myriad and complex. Construction is one of the most dangerous and strenuous industries. Almost 80% of the individuals who died of opioid toxicity between 2018 and 2020 experienced a pain-related condition or injury within the five years prior to their deaths. Construction work can also be inconsistent, which can be stressful for workers.

The construction industry should take note of Ontario Public Health’s findings, as death from opioid toxicity presents a hazard at home and at work. With construction workers disproportionately likely to suffer an opioid overdose, construction sites should consider keeping a naloxone kit on all sites.

Naloxone kits can be procured for free from many pharmacies or community organizations. Go to www.ontario.ca/page/where-get-free-naloxone-kit to find a resource for free naloxone kits and naloxone training near you.

OHSA Penalties

The Working for Workers Act has also substantially increased penalties for violations of the OHSA. As of July 2022, directors and officers of corporations will face maximum fines of $1,500,000, a fifteen-fold increase. The penalties for all other individuals have also increased to $500,000, five times the previous maximum. Individuals could also face up to 12 months in prison.

The OHSA now also includes a list of aggravating factors to be considered when a court determines penalties. These factors include:

1. whether the offense resulted in death, serious injury, or illness of one or more workers;
2. whether the offence was committed recklessly;
3. whether the defendant has a record of non-compliance with the OHSA; and
4. whether the defendant was motivated by a desire to increase revenue or decrease costs.

These penalties are per offence, meaning one individual could find themselves fined millions of dollars for failure to comply with the OHSA.

In light of these significant changes, employers and managers should take serious steps to review their health and safety obligations. They should also carefully consider whether their site adequately provides the safe work, protective equipment, and safety procedures that meet the regulations under the OHSA. Employers should take great care in conducting robust internal investigations and maintain detailed documentation about the positive steps taken to keep a work site safe.

We recommend that employers consider seeking assistance from a lawyer familiar with the OHSA to ensure that all workers are safe and to ensure compliance with all new regulations.