Audit, Compliance and Risk Blog

Although an ever-expanding range of laws prohibit workplace harassment, the Court of Appeal for Ontario has now ruled that harassment is not a free-standing common law tort in that province. This ruling reverses a trial court ruling by the by the provincial Superior Court of Justice that shocked employment law in 2017. This ruling returns workplace harassment to the realm of statutory and regulatory requirements and prohibitions, which certainly isn’t unambiguous, but at least offers more structured frames of reference. The case is Merrifield v. Canada (Attorney General), and it litigates a complaint between a member of the Royal Canadian Mounted Police (RCMP) and his employers.

In the last few years, and particularly with the advent of the #MeToo movement, some employers may have seen a rise in the number of harassment complaints in the workplace, including sexual harassment complaints. Employers under federal jurisdiction have been affected as well.

However, the current legal framework surrounding harassment and violence in federally regulated workplaces is fragmented. The results of many public consultations have shown that this framework is not currently designed to adequately address occurrences of sexual harassment and sexual violence.

In that context, in the past 18 months, significant changes have been proposed to the current legislation to address workplace harassment situations.

Among its many workplace health and safety standards, the Occupational Safety and Health Administration (OSHA) requires employers to protect employees during equipment servicing and maintenance, to prevent “unexpected” equipment energization, start up, or release of stored energy. OSHA’s Control of Hazardous Energy Standard—more often called the Lockout/Tagout or “LOTO” Standard after its primary compliance requirements—requires employers to establish and implement safety procedures to control such hazardous energy. The LOTO Standard has changed very little since OSHA adopted it in 1989, but the agency has just published a formal request for information – public comments – about two changes in workplace equipment over the past 30 years that might affect energy hazards and justify revisions to the LOTO Standard. The rest of this note summarizes existing requirements and discussed OSHA’s review of control circuits and workplace robotics.

On March 4, 2019, the U.S. Occupational Safety and Health Review Commission (Commission) issued its first affirmation of a citation and penalty issued by the Occupational Safety and Health Administration (OSHA) to punish a health care provider under the Employer’s General Duty Clause for failing to take adequate steps to prevent workplace violence. OSHA has issued citations under this Clause since 2012, but this is the first time that the Commission has confirmed one of these citations on appeal.

Even if the latest polar vortex has ended by the time you read this, employers in most parts of the continent should be worrying about protecting workers against winter weather. Occupational safety and health regulators include “environmental” hazards as those that may require employers to provide their employees with personal protective equipment (PPE), and employers also bear a “general duty” to protect workers against recognized hazards. These requirements cover potential harm from extreme temperatures including cold, as well as slippery surfaces and other hazards from frozen and melting snow or other precipitation.

Sexual harassment in Canadian workplaces can trigger a variety of laws and regulations:

When someone receives occupational direction and/or compensation from more than one entity, who’s the boss? Sometimes it’s obviously one or the other, sometimes it’s not clear which one is, and sometimes the answer may be “both.” The answer has important implications, not just for who writes a paycheck but for who is subject to legal requirements and prohibitions under applicable laws.

The Canada Labour Code and provincial employment standards acts generally specify a minimum notice period before such terminations (the “statutory notice period”), and generally allow the employer to pay compensation to the employee instead of giving the employee notice. (e.g., CLC ss. 54-67) This compensation is usually called “severance pay”; it replaces advance notice of termination. In general, the severance pay must equal the salary and benefits that the employee would have earned if permitted to work until the end of the notice period. Courts interpret and defend these prohibitions against “contracting out” termination benefits.

On October 24, the US Chemical Safety and Hazard Investigation Board (which uses the truncated acronym CSB) issued a “Call to Action: Combustible Dust” seeking information about what it has long considered a major industrial hazard. Since 1980 CSB has identified hundreds of industrial accidents involving dust that have injured nearly 1000 workers and killed more than one hundred. In 2006 CSB issued 4 formal recommendations to the Occupational Safety and Health Administration (OSHA) to enhance that agency’s regulation of occupational hazards from combustible dust – particularly from possible fires or explosions, with mixed responses.

The Occupational Safety and Health Administration (OSHA) and state worker protection agencies require employers to “guard” moving portions of machines and powered equipment, to prevent entanglements, pinches and amputations. OSHA sets general requirements for machine guarding under its Machine Guarding Standard, plus specific requirements for six different types of equipment in separate standards.