Canadian Mining Journal

Feature

Health and safety obligations during COVID-19 – a mix of old and new

Brad Smith and Shelby Rooney look at how health and safety obligations have changed under COVID-19 – and how they haven’t.



The mining industry, like most industries, faces challenges arising from COVID-19. One challenge is compliance with health and safety duties. Compliance is a mix of the old (the Occupational Health and Safety Act) and the new – the unique legislation and duties specific to COVID-19.

The new obligations in Ontario arose under the Emergency Management and Civil Protection Act, passed by the provincial government in March. The purpose of the act is to promote the public good by “protecting the health, safety and welfare of the people of Ontario” in times of declared emergencies. This Act gave broad emergency power to make orders through regulations. As we have experienced, this authorized the shutdown of entire areas of the economy and imposed restrictions on those still operating.

The declaration of the emergency came to an end on July 24, but the Reopening Ontario (A Flexible Response to COVID-19) Act continues many of the orders and regulations that were created during the emergency.

Some of the orders set the rules for the reopening of the economy for areas in Stages 1, 2, and 3. The regulations for all three stages contain a general compliance provision that states:

  1. The person responsible for a business or organization that is open shall ensure that the business or organization operates in accordance with all applicable laws, including the Occupational Health and Safety Act and the regulations made under it.
  2. The person responsible for a business or organization that is open shall operate the business or organization in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

Failure to comply with an order of the Reopening Ontario Act can result in fines up to $100,000 or imprisonment up to one year for an individual, $500,000 or imprisonment up to one year for an individual who is a director or officer of a corporation and $10 million for a corporation. The Court has discretion to increase these amounts based on any financial gain from the offence.

The “old” obligations continue under the Occupational Health and Safety Act. In particular, section 25(2)(h) of the Act requires an employer to “take every precaution reasonable in the circumstances for the protection of a worker.”

The advice, recommendations and instructions of public health officials may be a reasonable precaution. Thus, failure to follow the advice, recommendations and instructions of public health officials may be a breach of both the Reopening Ontario Act and the Occupational Health and Safety Act.

The Occupational Health and Safety Act was amended in 2017 to increase the maximum fine for health and safety violations from $500,000 to $1.5 million for a corporation and from $25,000 to $100,000 for individuals.

COVID-19 may increase an employer’s liability for health and safety infractions. Employers can manage this risk by following the advice, recommendations and instructions of public health officials and taking every precaution reasonable to protect workers.

Employers should implement policies and procedures encompassing public health advice and consider public health recommendations as requirements. Employers should pay particular attention to physical distancing, cleaning, and disinfecting requirements as well as ensure worker compliance with these policies and procedures. Employers should enforce measures around public health advice – including disciplinary action of workers who fail to comply. And, as always, exercise due diligence and document all actions!

The Reopening Ontario Act is one example of a substantial change to the workplace arising from COVID-19. Another example is the deemed “Infectious Disease Emergency Leave,” which ends on Sept. 4, 2020. The Ontario Employment Standards Act was amended to deem employees on Infectious Disease Emergency Leave if they had been laid off due to COVID-19. The amendments to the Employment Standards Act essentially replaced temporary layoffs with a protected leave to avoid mass deemed terminations related to the pandemic. This had the effect of preventing a temporary layoff becoming a termination in or about June 2020 (depending on when the person was laid off). As of Sept. 4, when the deemed leave ends, employers have to decide the status of employees (for example, return to work or lay off).

Employers should be proactive and exercise due diligence to identify and fulfill their duties in these unusual times. 

Brad Smith is a partner at Weilers Law and practices in labour and employment law
(www.weilers.com or basmith@wmnlaw.com).
Shelby Rooney is a summer student at Weilers Law and attends the University of Toronto Faculty of Law.


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