By: Ryan Conlin 
 
In what appears to be a response to considerable confusion in the construction industry, Ontario’s Chief Prevention Officer has issued updated guidance in order to try and help employers better understand their health and safety obligations in keeping Ontario’s construction workplaces safe amidst the pandemic. 
 
Last week, the Ontario government deemed most construction work in the province as an “essential service”, including construction work in the ICI and residential sectors and those projects related to healthcare and provincial infrastructure. Employers continuing to operate in these sectors remain subject to the duty to keep workers and work sites safe and free of hazards, including those associated with COVID-19.  Although construction workers have been declared “essential” for purposes of the provincial emergency, they continue to have the right to refuse unsafe work under the OHSA.
 
The Ministry of Labour’s updated guidance provides construction employers with what amounts to the Ministry’s suggestions for what it considers to be reasonable precautions to protect the health and safety of construction workers while on job sites.  It is important to appreciate that the “guidance” from the Ministry of Labour does not have the force of law.  We have had experience in prosecutions where the Ministry of Labour has sought to distance itself from statements it has made publicly in the past.  
 
The reality is that employers and constructors will have to make site specific assessments of what precautions are reasonable in the circumstances of a specific project.  The guidance of the Ministry should be given serious consideration when assessing any site-specific precautions.
 
Physical Distancing Practices for On-Site Work
 
The Ministry is recommending the following measures to encourage social distancing amongst workers:
  • staggering start times, breaks and lunches;
  • adjusting production schedules to reduce the number of workers needed;
  • restricting the number of people on-site and where they are assigned to work;
  • controlling site movement and limiting the potential for workers to gather; 
  • limiting the number of people who use elevators and hoists at one time;
  • holding meetings in an outside or large space to enable physical distancing; and 
  • limiting unnecessary on-site contact between workers and between workers and other outside service providers.
The guidance does not explicitly address the reality that many of our construction clients are experiencing, namely that physical distancing is not possible for many necessary tasks commonly performed in the trades.  
 
The Ministry has not explicitly said whether it is taking the position that physical distancing is mandatory at all times on construction projects under the OHSA.  We expect that there will be work refusals and other legal disputes arising out of this issue. 
 
Other Recommended Precautions and Legal Requirements 
 
The guidance further provides construction employers with general tips to help prevent the spread of germs, including advice on proper handwashing and sanitizing protocols as well as the use of personal protective equipment. Measures for maintaining clean worksites, including ensuring access to soap and water or alcohol-based hand sanitizer on site, clean washroom facilities, sanitizing commonly touched surfaces, avoiding the sharing of tools (or sanitizing where impractical) and the posting of hygiene signage in English and in the majority workplace language have been recommended.
 
Not surprisingly, the guidance also states that workers who have cold or flu related symptoms should be sent home. If an employer becomes aware than a worker has tested positive for COVID-19, the employer is required notify the Ministry of Labour in writing within four (4) days. Employers are also required to notify their joint health and safety committee (JHSC) or representative and trade union, if applicable. 
 
The employer should then take steps to mitigate the further spread of the illness on the jobsite, for example, by cleaning and sanitizing frequently touched surfaces. Further, employers must track where employees are stationed on the construction site so that local health authorities and other employees who may have been exposed to the virus can be notified. Reporting and self-assessment tools published by the government are available. 
 
All construction parties are advised to update their health and safety policies and to display them on-site for all workers, contractors and trades to see. These policies should address information on increased safety measures during the pandemic, including, but not limited to:
  • the sanitization of sites;
  • how employees and contractors report illnesses;
  • how to ensure physical distancing; and
  • how work will be scheduled. 
For more information on an employer’s duty to maintain a healthy and safe working environment for its employees, please see our update on pandemic planning.
 
Stringer LLP continues to monitor the situation closely and will provide updates on new developments as they occur.
 
For more information, please contact:
 
Ryan Conlin at rconlin@stringerllp.com or 416-862-2566
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