Canada Gazette, Part I, Volume 154, Number 25: Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI)
June 20, 2020
Statutory authority
Canada Labour Code
Sponsoring department
Department of Employment and Social Development
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The Labour Program of Employment and Social Development Canada (ESDC) administers the Canada Labour Code (the Code) and the Canada Occupational Health and Safety Regulations (COHSR), which establish the regulatory framework for occupational health and safety in workplaces under federal jurisdiction. Approximately 8% of the Canadian workforce is under federal jurisdiction and includes banking; telecommunications; broadcasting; air, interprovincial rail and road transportation, excluding on-board employers and employees; shipping and related services; grain elevators, feed and seed mills; uranium mining; Crown corporations; and the federal public administration.
Employers under federal jurisdiction have a general obligation to protect the health and safety of every person they employ while they are working. Employers have specific duties regarding each workplace they control and every work activity under their authority. Workplace employees and employers are encouraged to work together to develop practices and policies, and to assess and address occupational health and safety issues effectively and in a timely manner. In addition, employers are required to provide employees with the information, education, training and supervision necessary to ensure their health and safety at work.
Under Part II of the Code, Part XI of the COHSR prescribes occupational health and safety requirements to prevent accidents and injuries while working in confined spaces such as sewers, vaults and tunnels used by telecommunication companies to maintain their infrastructure; boilers, pipelines and tanks used to transport or store hazardous materials; storage tanks, tank cars and tank trucks used in the rail and shipping industries; and shipping holds. Although some of these spaces are easily recognized as confined spaces, others may not be.
Workers enter confined spaces for various reasons, including maintenance (e.g. repair, inspection, cleaning, and unjamming), manufacturing (e.g. transportation equipment manufacturing) or to perform other work (e.g. construction industry). Hazards in confined spaces include oxygen deficiency, asphyxiants, chemical exposure, flammables, poor visibility and biological agents. Occupational risks in confined spaces are often high because of confinement, inadequate natural ventilation, the need to work in isolation, and access, rescue and communication problems.
The unique hazards and contained nature of confined spaces means that the risk of injury and death is higher than that of a regular workplace. In 2018, a death occurred in a confined space, reinforcing the need to update the requirements for managing work in confined spaces.
In 2014, Part XI – Confined Spaces was identified as a priority for review by the Labour Program’s Occupational Health and Safety Advisory Committee (OHSAC). The OHSAC, made up of representatives from the Labour Program and employee and employer groups, conducted an in-depth review of Part XI between 2014 and 2017. This review identified the following issues:
1. Confusion regarding the identification of various confined spaces and employers’ responsibilities towards those working in them
Correct identification of confined spaces is critical due to the unique hazards they present. Failure to correctly identify a workspace as a confined space may cause workers to be exposed to hazards that are not obvious, but that exist due to the nature of the space. This can result in severe injury or death. Incorrectly identifying a workspace as a confined space when it is not can cause employers to implement unnecessary controls, leading to costly operational inefficiencies.
2. Certain safety provisions are outdated and not aligned with industry practices and standards
Updated standards and best practices in domestic and international jurisdictions have shown that some federal safety provisions need modernization. In 2016, the Canadian Standards Association (CSA) updated and published Management of Work in Confined Spaces (Z1006-16). This Standard provides a comprehensive framework for establishing and maintaining an effective program for the health and safety of employees entering and working in confined spaces. Updates made to the Standard are seen as industry best practices. The current Regulations do not align with this Standard.
3. There is a lack of clarity in the regulatory text
The lack of clarity in the regulatory text makes it challenging for employers and employees to comply with the Regulations.
Objective
The objective of these proposed amendments is to protect the health and safety of employees working in confined spaces by addressing the current shortcomings in Part XI of the COHSR.
Description
The proposed regulatory amendments would accomplish the following:
1. Mitigate the risk of injury or death by improving the knowledge surrounding, and the identification of, confined spaces
The proposed Regulations would update the definition of a confined space based on the physical characteristics of the space. A confined space is a space that
- (a) is enclosed or partially enclosed;
- (b) is not designed or intended for continuous human occupancy; and
- (c) has a limited or restricted means of access or egress or an internal configuration that could complicate provisions of first aid, evacuation, rescue or other emergency measures.
The proposed amendments would also add a new subtype of confined spaces: hazardous confined spaces. These types of spaces would include further risk to the health and safety of the person working in it. A hazardous confined space is defined as a confined space that, when entered, occupied or exited by persons, presents hazards likely to cause injury, illness or other adverse health effects to persons entering, occupying or exiting it because of
- (a) its design, construction, location or atmosphere;
- (b) the materials or substances in it; or
- (c) any other conditions relating to it.
The proposed amendments would also require the employer to
- perform an assessment of the work area to identify all confined spaces;
- establish and maintain a record of confined spaces, which would be accessible to those entering those spaces;
- appoint a qualified person to determine whether the confined space is a hazardous confined space; and
- maintain records of all employees who received instruction and training on emergency procedures and obligations when working in confined spaces.
2. Modernize and strengthen provisions and align them with industry practices and standards
The proposed amendments would
- (a) provide flexibility to allow more than one qualified person to perform the assessment of the confined spaces present in the workplace;
- (b) require that a confined space be reinspected whenever there is a change to the structure, the intended use, or the immediate surrounding area;
- (c) align with requirements in other jurisdictions in Canada by increasing the minimum level of oxygen in the air in a confined space to 19.5%, up from 18%;
- (d) add the requirement for the employer to develop emergency procedures for all hazardous confined spaces, in collaboration with the policy committee, the workplace committee, or the health and safety representative;
- (e) add the requirement for continuous atmospheric monitoring when it is noted in the hazard assessment report created by the qualified person. It would also require that atmospheric testing equipment be used by a qualified person, and be used, calibrated and maintained in accordance with the manufacturer’s specifications; and
- (f) expand the employer’s obligation towards those granted access to hazardous confined spaces to include contractors, and require employers to share their procedures with them. Employers would also be required to ensure that all persons allowed access to hazardous confined spaces, including contractors, have received training on safely working in and occupying the hazardous confined space.
3. Add clarity to promote compliance
The proposed regulatory amendments would provide further clarity by ensuring consistent referencing to other sections of the COHSR and ensure correct use of new terminology. For example, recent changes to the Policy Committees, Work Place Committees and Health and Safety Representatives Regulations caused “work place committee or health and safety representative” to also include “policy committees.” The proposed amendments will change all references in Part XI to say “the policy committee or, if there is no policy committee, the work place committee or the health and safety representative.”
The proposed regulatory amendments will also clarify the requirements for the qualified person’s hazardous assessment report and the requirement for employers to maintain records of all employees who receive instruction and training regarding confined spaces.
Regulatory development
Consultation
Between 2014 and 2017, the Occupational Health and Safety Advisory Committee (OHSAC) was used to engage employer and employee representatives through a series of consultations.
Stakeholders identified Part XI of the COHSR as a priority for regulatory review. Stakeholders raised several issues, including aligning the definition of a confined space with the CSA definition, shortening the time period for a review of the hazard assessment, and increasing the required oxygen levels in confined spaces. A working group was struck with the purpose of examining and recommending regulatory amendments. These recommendations were then incorporated into the amendments, and the Labour Program has finalized its policy approach based on best practices in industry and other jurisdictions, both domestic and international. The primary objective of the proposed regulatory amendments is to improve health and safety standards by addressing hazards to prevent accidents and injuries in confined spaces under federal jurisdiction.
Through discussions with OHSAC members, consensus was achieved on the proposed amendments to the Regulations. OHSAC members include the following employer and labour representatives: National Airlines Council of Canada, BC Maritime Employers Association, Federally Regulated Employers – Transportation and Communications (FETCO), Canada Post, Canadian Trucking Alliance, Treasury Board Secretariat, Canadian Labour Congress, Public Service Alliance of Canada, Canadian Union of Postal Workers, Canadian Union of Public Employees, Unifor, and International Longshore and Warehouse Union.
The following stakeholders, including members of employer and employee groups represented on the OHSAC, were given the opportunity to provide input as part of a broad preliminary consultation:
- SaskTel
- Canadian Pacific Railway
- CN
- CSX Transportation
- Canadian Bankers Association
- Telus
- Jazz Air
- Amtrak
- 407 ETR
- New Brunswick Southern Railway
- Shaw Communications
- Teamsters Rail
- Air Canada
- VIA Rail
- Bell Canada
- Logistec
- Canadian Transportation Agency
- Canadian Air Transport Security Authority
- Canadian Broadcasting Corporation
- Brink’s
- FedEx
- UPS
- Can-Truck
- United Steelworkers Canada
- Tshiuetin Rail Transportation
- Rocky Mountaineer
- BNSF Railway
- Canadian National Millers Association
- Canadian Auto Workers
- Railway Association of Canada
- Bank of Montreal
Modern treaty obligations and Indigenous engagement and consultation
The proposed Regulations would not change which workplaces are under federal jurisdiction and are subject to labour provisions under the Code. Indigenous bands and band councils are generally subject to the Code, including those with modern treaties or self-government status.
The Code continues to apply to modern treaty areas, as this area of jurisdiction has been “carved out” of areas of jurisdiction in treaties, meaning that it is not an area of jurisdiction for which a modern treaty holder would create their own legislation. Modern treaty holders would therefore apply the Code to applicable activities in their territory.
Instrument choice
The options considered were maintaining the status quo or amending the existing provisions. Other options, such as policy guidelines or voluntary codes of practice, would not allow for proper enforcement of health and safety provisions to protect workers from the hazards present in confined spaces. Regulatory amendments set out clear requirements for employers to comply with and for Labour Program health and safety inspectors to follow to ensure this compliance.
A regulatory framework regarding working in confined spaces already exists; however, the current Regulations do not reflect industry’s best practices and updated standards. Amending the existing provisions would be the best option to ensure enforcement and protection of the health and safety of employees. None of these factors could be addressed via the status quo; therefore, a regulatory option was selected.
Regulatory analysis
1. Mitigate the risk of injury or death by improving the knowledge surrounding, and the identification of, confined spaces
Part XI of the COHSR prescribes the health and safety requirements for employers and employees with respect to working areas that meet the definition of a confined space. Under the current definition, a confined space must be an enclosed or partially enclosed space, not intended or designed for human occupancy, have restricted means of access or egress, and contain a hazard. If any one of these requirements is misapplied, then the space may not be properly identified as a confined space, which means that adequate controls may not be in place, or employers may be implementing controls that are not necessary. The proposed amendments would change the definition of a confined space to simplify the identification process, and would modernize safety requirements to reflect current best safety practices in the workplace.
Succinctly defining hazardous confined spaces would allow for employers to properly implement controls to prevent injury, illness, or other adverse health effects to workers entering those spaces.
2. Modernize and strengthen provisions and align them with industry practices and standards
The proposed amendments would require that a confined space be reinspected whenever there is a change to the structure, the intended use, or the immediate surrounding area. These changes may alter the conditions of working in a confined space, which could mean that the implemented safety procedures may no longer be appropriate and would need to be updated.
The proposed amendments would require employers to maintain a record of non-hazardous confined spaces and hazardous confined spaces, and ensure that it is kept current and accessible to workers prior to entering those spaces. The presence of an inventory of confined spaces would enable the qualified person to perform assessments for each confined space and facilitate the grouping of confined spaces as hazardous or non-hazardous. The confined spaces could then be classified into groups that have common characteristics and properties, which would ease the development of appropriate safety procedures applicable to these groups. Employers need to be aware of the workspaces they control and which employees have access to these spaces, in order to design entry procedures and emergency procedures based on the class of confined space.
The proposed amendments would provide flexibility to allow more than one qualified person to perform the assessment. Employer stakeholders requested that the Regulations allow multiple qualified persons to carry out the assessment, depending on their experience or expertise. The amendments would also bring the requirements for the minimum level of oxygen in the air from 18% to 19.5%. This requirement would bring the federal jurisdiction in line with all other jurisdictions in Canada, add greater specificity and enhance safety.
The proposed amendments would also require employers to develop emergency procedures for all hazardous confined spaces, which would provide flexibility in emergency rescue operations. Employers’ obligation towards those granted access to hazardous confined spaces would also be expanded to include contractors and require employers to share their emergency procedures with them. All persons granted access must also have received training on safely working in and occupying hazardous confined spaces. These changes will reduce the risk of injury and fatality to all those entering hazardous confined spaces and would ensure that the training regarding hazardous confined spaces and the equipment used in these spaces are up to date and protect persons granted access as much as possible.
3. Add clarity to promote compliance
The proposed regulatory amendments will provide increased clarity through consistent referencing and use of new terminology. They will also clarify the requirements for the qualified person’s hazardous assessment report and the requirement to maintain records of all employees who receive instruction and training regarding confined spaces. This will allow for a much clearer reading of the Regulations and a better understanding of the requirements laid out within them.
Benefits and costs
Derivation of costs
The Department conducted a cost-benefit analysis of the regulatory proposal and found that the section that requires an employer to create and maintain an inventory of confined spaces would have small resource impacts. Other major changes prescribed in the proposed regulatory amendments are deemed to have no significant impact. These are summarized below.
New requirements for inventories and new hazard assessment requirements
Changes to section 11.02 in the proposed regulatory amendments would require employers to identify all confined spaces in their workplaces, establish an inventory of all confined spaces, and implement a system to ensure it is kept up to date. In addition, the employer would be required to determine if the confined space is hazardous or non-hazardous, and a section would be added prescribing new requirements to be included in the hazard assessment, including new equipment requirements.
It is estimated that developing the inventory and updating the hazard assessment with the prescribed new elements would take approximately 1.5 person-hours, on average, for each worksite containing confined spaces, and that the inventory would require updating on a quarterly basis (estimated at 15 minutes every three months). The opportunity cost for maintaining the inventory and conducting the assessments, where applicable, is based on the average wage rate, inclusive of non-wage benefits. As a result, in the first year after implementation (2020), the 3 960 worksites containing confined spaces would each have to dedicate 2.25 person-hours to the development and maintenance of the inventory. In future years, each worksite would have to dedicate one person-hour per year. Total costs are expected to average approximately $154,000 per year and represent the bulk of costs associated with the proposed Regulations, about 82% of average yearly costs.
New training records retention
Paragraph 11.13(1)(c) of the proposed amendments would require employers to maintain records of all employees who receive instruction and training regarding their regulatory obligations when working in confined spaces. This would apply to new trainees only and would affect approximately 1 600 new employees working in confined spaces annually. It is estimated that each employee record would take about 15 minutes to complete and costs would average about $15,000 per year across the federal jurisdiction for the period 2020–2029. The projected labour force growth of 0.91% and a projected retirement rate of 2.06% was factored into this estimate.footnote 1
New requirements for reinspection of a confined space
Subsection 11.03(4) of the proposed regulatory amendments requires employers to conduct a reinspection of a confined space for hazard identification and risk assessment whenever there have been any changes to the structure, the intended use, or the immediate surrounding area. It is estimated that approximately 10% of all worksites containing confined spaces will require reinspection, as they are limited to industries where confined spaces tend to be makeshift structures that may be reconstituted as required, such as in the energy and mining or pipelines sectors. Tanker trucks or rail cars would not be considered makeshift structures in this sense, since they are not likely to be reconstituted for different purposes. It is expected that this new provision would affect an average of approximately 400 worksites per year. Costs are estimated to average approximately $14,700 per year across the federal jurisdiction.
New requirement regarding atmospheric pressure level
Subparagraph 11.05(1)(a)(iii) of the proposed amendments prescribes that the percentage of oxygen in the air in the hazardous confined space be not less than 19.5% by volume and not more than 23% by volume, at normal atmospheric pressure. This was deemed to have no significant impact. Costs would be minimal as the equipment required would already have been purchased and testing already occurs. This change would align the Regulations with the best practices of other jurisdictions.
Emergency procedures for all confined spaces
Paragraph 11.5(1)(a) of the proposed amendments requires the development of emergency procedures for all hazardous confined spaces, not just those containing atmospheric hazards. It is estimated that this new requirement would affect approximately half of all worksites with confined spaces and require one person-hour of work per year, per affected worksite. Total costs are expected to be around $75,000 in the first year after implementation of the proposed amendments and average $310 in subsequent years, as only new confined spaces would be affected.
New requirement for atmospheric monitoring
Subsection 11.10(1) of the current Regulations mandates the employer to select one of two options in cases where ventilation is currently being used in a confined space with atmospheric hazards. Either the confined space is equipped with an alarm that is activated automatically and is audible or visible to every person in the confined space if the equipment fails, or the confined space is monitored by an employee in communication with those working in the confined space. Subsection 11.11(3) of the proposed Regulations would add a new requirement where, in cases where an assessment report determines that a hazardous confined space requires continuous ventilation, the employer must ensure continuous atmospheric monitoring while the space is occupied. This subsection was deemed to carry a small cost, namely the opportunity cost in wages of the employee monitoring the confined space. This cost was not quantified because of the lack of data in relation to the number of times employers choose each option and the number of employees and hours affected. However, given only a small number of worksites would be affected, costs will likely only have a small impact.
A breakdown of the costs are included in the table below:
Costs |
Annualized Value ($) |
Present Value ($) |
---|---|---|
New requirements for inventories and new hazard assessment requirements |
159K |
1.18M |
New training records retention |
13K |
94K |
New requirements for reinspection of a confined space |
13K |
93K |
New requirement regarding atmospheric pressure level |
Not estimated |
Not estimated |
Emergency procedures for all confined spaces |
9K |
64K |
New requirement for atmospheric monitoring |
Not estimated |
Not estimated |
Total |
195K |
1.37M |
Benefits
The proposed definition of a confined space would simplify the identification of a confined space, as it would be based on the physical characteristics of the space. This simplification would allow any employee to be able to determine whether a space is a confined space. Therefore, a person with special qualifications would not be required to identify a confined space. The initial identification, based on physical characteristics, would result in an accurate determination of confined spaces that are potentially hazardous, as well as non-hazardous.
Once a space has been determined to be a confined space, a qualified person, defined in the current Regulations as a person who, because of their knowledge, training and experience, is qualified to perform that duty safely and properly, would then be required to evaluate each identified confined space for the existence of potential hazards and risks, and would establish appropriate safe work procedures for hazardous confined spaces.
The qualified person would then be required to divide the spaces into the two groups: non-hazardous and hazardous. Hazardous confined spaces would include physical restrictions, with the added risk due to a hazard, such as hazardous substances or oxygen-deficient atmospheres. The risk would be mitigated through the implementation of safe work procedures while work is being conducted in the space.
Safe work procedures required to work in non-hazardous confined spaces would be minimal, while procedures to work in hazardous confined spaces would be more complex, depending on the nature of the hazard and its adverse effects on employees.
The proposed Regulations would ensure that employers do not overlook any confined spaces within their workplaces. Employers would be mandated to identify all confined spaces in their workplaces; develop and keep current an inventory of these spaces; and provide safeguards to employees to ensure they are made aware of the proper equipment to use when entering new confined spaces and when an entry permit is required (via mandating this information in the assessment report). Finally, the proposed regulatory amendments would ensure that all new employees receive the appropriate training for working in confined spaces by maintaining a record of all training received.
The presence of an inventory of confined spaces would enable the qualified person to perform assessments for each confined space, and facilitate the grouping of confined spaces as hazardous or non-hazardous. The confined spaces could then be classified into groups that have common characteristics and properties, which would ease the development of appropriate safety procedures applicable to groups of them.
Employers need to be aware of the workspaces they control and which employees have access to these spaces, in order to design entry procedures and emergency procedures based on the class of confined space.
Training has been found in numerous studies to lead to significant reductions in injuries and fatalities. For example, Waehrer and Miller found a 5.73% reduction when fall protection training was provided to employees.footnote 2
Small business lens
There are impacts on small businesses associated with the proposed Regulations. A small business is any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenues.footnote 3
Approximately 75% of small businesses affected are in the road-transport sector. This is similar to the proportion of road transportation companies for the entire federal jurisdiction and for all employer sizes, which is approximately 79%.footnote 4
The Regulations will affect close to 2 000 small businesses, approximately 90% of the total businesses impacted. This is to be expected as small businesses make up approximately 95% of all businesses under federal jurisdiction. In terms of the overall cost of the proposed amendments, a little under half of the total costs associated with the proposed amendments (48%) will be carried by small businesses, approximately $674,080 (present value) and $95,974 on an annualized basis. However, costs per small business will be low, as the small businesses affected by the proposed amendments have, on average, only 1.07 worksites, with an average of just over five employees per worksite. Costs per small business come out to approximately $378 over 10 years (present value), or $54 on an annualized basis. Given that the costs are minimal and that the regulatory proposal has a low impact, no other options were considered to mitigate costs to small businesses. In addition, given these minimal costs and the high risk of injury associated with working in confined spaces, flexibility in these requirements for small businesses under federal jurisdiction is not possible without compromising the health and safety of small business employees working in confined spaces. Results of the small business lens are summarized in the table below in $2019:
Small business lens summary
- Number of small businesses impacted: 1 949
- Number of years: 10
- Base year for costing: 2020
Annualized Value ($) |
Present Value ($) |
|
---|---|---|
Total (compliance costs) |
8,828 |
62,007 |
Total (administrative costs) |
95,974 |
674,080 |
Total cost (all impacted small businesses) |
104,802 |
736,086 |
Cost per impacted small business |
53.77 |
377.63 |
One-for-one rule
The proposed amendments would include record-keeping requirements for employers with respect to certain personal protective equipment. The one-for-one rule would therefore apply to the proposed amendments, as these requirements would be considered a new administrative burden on business.
The proposed amendments require employers to maintain an inventory of confined spaces, add new requirements to the hazard assessment report, and require record retention for confined spaces training. The proposal is expected to add approximately $89,037 in additional administrative costs per year to affected sectors, or an increase in annual administrative costs of $41 per business.
Unless otherwise stated, the figures referenced in this section are presented in 2012 dollars and discounted to 2012, as required by the Red Tape Reduction Regulations. The analysis assumes all affected employers (100%) will comply and assumes that approximately 10% of affected employers are already in voluntary compliance with the proposed amendments. The assumptions used in calculating the administrative costs have been described in the “Benefits and costs” section. Administrative costs are summarized in the table below:
Annualized administrative costs |
$89,037 |
---|---|
Annualized administrative costs per business |
$41.20 |
The Labour Program conducted consultations with major employer and employee stakeholders through in-person, teleconference and email consultations. The stakeholders did not raise costs as an area of concern.
Regulatory cooperation and alignment
Provinces, territories, and the federal government each play a role in protecting workers against hazards when working in confined spaces. Outside of the federal jurisdiction, each provincial and territorial government has its own regulatory authority. This means that occupational health and safety programs often differ between provinces. All jurisdictions within Canada have regulations dealing with confined space entry, although they can vary slightly from jurisdiction to jurisdiction. In each province and territory, all confined spaces are considered hazardous unless a competent person has determined otherwise through a risk assessment.
The proposed amendment to the definition of confined spaces would be aligned with the definition used in the regulations of British Columbia, Yukon and Saskatchewan, as the definitions are two-pronged and distinguish between hazardous and non-hazardous confined spaces.
This regulatory proposal includes a raised minimum level of oxygen in a confined space, to match all other provincial and territorial jurisdictions.
The regulatory system in the United States (U.S.) contains regulations from both state and federal levels. In general, Canada and the United States have similar occupational health and safety regulations regarding work in confined spaces. The proposed definition of confined spaces would be in line with the two-tier definition used in the U.S. regulations, as well as with the standard by the American National Standards Institute.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
Issue identification
A gender-based analysis plus (GBA+) assessment was conducted as part of the development of the proposed amendments to Part XI.
The impacts of hazards within confined spaces tend to affect different groups in unique ways. Below, different hazards are discussed and analyzed based on the diverse attributes of workers, including their biological characteristics, age, socioeconomic status, and physical capabilities.
Demographic characteristics
On average, workers in industries where confined spaces are present are predominantly male. In 2016, the National Household Survey found that 9 440 male workers identified themselves as working in telecommunications as cable workers compared to 415 female workers in the same field.footnote 5 The number of female workers employed as civil, mechanical, electrical and chemical engineers was similarly low when compared to male workers, with 22 365 female workers in the field, compared to 140 795 male workers.footnote 5 Similarly, workers employed in the trucking industry are also predominantly male, where 303 650 men identified themselves as working as drivers in the sector, compared to 10 980 female workers.footnote 5 Given that confined spaces are found in 75% of the trucking industry, a significantly larger number of male workers are expected to benefit from the proposed regulatory amendments.
Between 2011 and 2015, there were close to 12 000 lost-time injuries occurring in confined spaces across Canada, of which approximately 66% of the injured workers were male and 34% female. For the same period, there were 14 fatalities in confined spaces, of which over 90% of those killed were male. The larger number of male workers in the industry may contribute to this disparity in fatalities.
Due to the higher number of male workers in confined spaces, and the associated higher number of injuries and fatalities, the proposed regulatory amendments are expected to positively affect a greater portion of men. However, all workers in confined spaces will benefit from the proposed amendments.
Data collected by Statistics Canada indicates that the rate of Aboriginal workers who are employed in industries with confined spaces in their workplaces is similar to the rate of non-Aboriginal Canadian workers.footnote 6 The proposed regulatory amendments to Part XI are not expected to have increased impacts on Aboriginal workers.
Atmospheric hazards
Asphyxiation
Workers in confined spaces can experience troubled breathing and are at risk of asphyxiation when oxygen content drops below 19.5% of available oxygen in these spaces.footnote 7 On average, female workers are at greater risk than male workers due to their smaller lung capacity.footnote 8 A larger lung capacity may lower the rate at which symptoms of poor air quality and asphyxiation occur.
Lung capacity also diminishes with age, which poses a greater risk of asphyxiation to older workers. Older workers are therefore more likely than younger workers to struggle when working in confined spaces with reduced oxygen levels.footnote 9
Research also suggests that ethnicity may influence lung capacity. For example, white Americans of European descent have been found to have higher lung volumes compared to Americans of African descent.footnote 10 However, other studies also suggest that ethnicity does not play a significant role.footnote 10
While some workers may face a greater risk of asphyxiation than other workers within confined spaces, the proposed changes will reduce the risk of asphyxiation to all workers within these spaces.
Asthma
Increased exposure to airborne toxic agents that may be present within confined spaces, including chemicals and solvents, can trigger asthma attacks in workers with asthma, which, in turn, can affect their ability to work in these spaces. These asthma attacks also put workers at an increased risk for severe negative effects to their health.
Although male children develop asthma in childhood at a higher rate than female children, after adolescence, female adults are more likely to experience asthma at a higher rate than male adults. Due to the hormonal differences between males and females, females are more likely to develop serious asthma, experience asthma attacks, and be hospitalized due to complications from asthma.footnote 11 Female workers in confined spaces who are exposed to toxic agents are more likely to experience asthma attacks and develop serious complications.
Research suggests that ethnicity may influence the level of risk for asthma. Like female workers, Aboriginal populations are also more likely to report having asthma than non-Aboriginal populations.footnote 12 Aboriginal workers are at an increased risk of developing chronic symptoms when in confined spaces. In addition, female Aboriginal workers are twice as likely as male Aboriginal workers to develop chronic respiratory diseases such as asthma.footnote 13
By clarifying and strengthening the hazard prevention and mitigation measures, it is expected that the proposed changes would reduce the risk posed to workers within confined spaces who are at an increased risk for asthma and its potential complications.
Chemical exposure
Workers are at an increased health risk from chemical exposure in confined spaces. Toxic gases present two types of risk: chemical asphyxiation (smothering) and irritation to the respiratory system, the skin and eyes.footnote 14 Risk from chemical exposure can vary based on sex and length of exposure. Female workers exposed to chemicals may have greater health risks, as their skin is on average 25% thinner than the skin of their male counterparts.footnote 15 They are also exposed to a larger number of daily care products, such as makeup and cleansing products, and household cleaning agents that contain hazardous substances.footnote 16 Exposure to these chemicals, in addition to chemicals they may be exposed to in confined spaces, puts them at greater risk of developing serious illness or disease, such as cancer. However, on average, females have stronger immune system responses than males.footnote 17 This in turn increases their chances of recovering from an illness contracted while working within confined spaces.
It is expected that the proposed changes would reduce the risk posed to workers in confined spaces who otherwise may be exposed to hazardous chemicals by requiring stronger hazard prevention and mitigation measures.
Physical hazards
Confined spaces can amplify sounds produced by tools and equipment.footnote 18 Long-term exposure to excessive noise can result in noise-induced permanent hearing loss.footnote 19 The impact of this exposure is greater on older individuals as hearing sensitivity also declines as people become older.footnote 19
Ergonomic hazards may pose risks for persons with limited physical abilities due to the possibility of restricted movement within confined spaces.
While the proposed regulatory amendments may prevent some injuries or illnesses, the proposed changes will not directly impact workers exposed to these risks.
Biological hazards
Underground confined spaces often contain bacteria from fecal matter and sludge, fungi, or moulds.footnote 7 Exposure to bacteria and viruses within these spaces poses a greater risk for male workers and older individuals due to their comparatively weaker immune system response than female workersfootnote 20 and younger workers.footnote 21 The proposed regulatory amendments would strengthen hazard identification, prevention and mitigation, and are therefore expected to reduce the likelihood of exposure to biological hazards.
Socioeconomic considerations
Beyond the hazards directly impacting the health of workers in confined spaces, it is also important to take into consideration their socioeconomic status, which may greatly influence their access to care and ability to recover following workplace illness and injury that occurs in a confined space. For example, Canadians in couple families earn on average twice the amount as lone-parent families.footnote 22 Younger families also earn on average significantly less than older families.footnote 22 Aboriginal people in Canada earn on average 25% less than non-Aboriginal Canadians, with Aboriginal women earning the least — on average 45% less than non-Aboriginal men.footnote 23 The ability of a worker to recover from health consequences caused by working in confined spaces is much lower when they have fewer resources available to them when compared to a worker from a higher-income family. Socioeconomic disparities in Canada affect the likelihood of a worker and their family being able to afford medications, sick leave, and travel for treatment. This can be particularly true for severe health issues such as cancer, infection, and respiratory illness resulting from work in confined spaces. The proposed regulatory changes may therefore reduce the burden on workers and their families who may be at a socioeconomic disadvantage by helping to prevent illness and injury caused by work in confined spaces.
Summary
As discussed, certain biological factors generally create greater risk for female workers in confined spaces than male workers. The risk is also greater for older workers than workers who are younger. Finally, it is important to take into consideration workers’ socioeconomic status and their access to resources, which can either increase or decrease the risk to workers’ health in addition to the hazards themselves.footnote 24 The proposed regulatory changes are ultimately expected to reduce the exposure of workers to hazards in confined spaces, and particularly benefit those who are more vulnerable when exposed to certain hazards as discussed in this analysis.
Implementation, compliance and enforcement, and service standards
Implementation
The proposed regulatory amendments would come into force on the day on which they are registered.
During the consultation process for Part XI, stakeholders recommended the development of guidelines to accompany the Regulations. Guidelines are currently being prepared and are expected to be published for the coming-into-force date.
The guidelines would complement the proposed amendments to further explain the amendments and would assist employers and employees in complying with the proposed amendments.
Compliance and enforcement
The Labour Program’s compliance policy outlines the proactive and reactive activities used by delegated officials to ensure compliance. Statutory powers allow delegated officials to enter worksites and perform various activities to enforce compliance with the Code and the COHSR. Enforcement actions may range from the issuance of a written notice to further steps such as the initiation of prosecution.
Contact
Julie Ballantyne
Acting Manager
Occupational Health and Safety Policy Unit
Labour Program
Employment and Social Development Canada
165 De l’Hôtel-de-Ville Street
Gatineau, Quebec
K1A 0J2
Telephone: 819‑654‑6263
Email: julie.ballantyne@labour-travail.gc.ca
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council, pursuant to sections 125footnote a, 126footnote b and 157footnote c of the Canada Labour Codefootnote d, proposes to make the annexed Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI).
Interested persons may make representations concerning the proposed Regulations within 60 days after the date of publication of this notice. All representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Julie Ballantyne, Acting Manager, Occupational Health and Safety Policy Unit, Workplace Directorate, Labour Program, Employment and Social Development Canada, 165 De l’Hôtel-de-Ville Street, 10th Floor, Place du Portage, Phase II, Gatineau, Quebec K1A 0J2 (tel.: 819‑654‑6263; email: julie.ballantyne@labour-travail.gc.ca).
Ottawa, May 29, 2020
Julie Adair
Assistant Clerk of the Privy Council
Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI)
Amendments
1 Part XI of the Canada Occupational Health and Safety Regulationsfootnote 25 is replaced by the following:
PART XI
Confined Spaces
Interpretation
11.01 The following definitions apply in this Part.
- class of confined spaces means a group of at least two confined spaces that are likely, because of their similarity, to present the same hazards to persons entering, exiting or occupying them. (catégorie d’espaces clos)
- confined space means a space that
- (a) is enclosed or partially enclosed;
- (b) is not designed or intended for continuous human occupancy; and
- (c) has a limited or restricted means of entry or exit or an internal configuration that could complicate provision of first aid, evacuation, rescue or other emergency response. (espace clos)
- hazardous confined space means a confined space that, when entered, occupied or exited by persons, presents hazards likely to cause injury, illness or other adverse health effects to persons entering, exiting or occupying it because of
- (a) its design, construction, location or atmosphere;
- (b) the materials or substances in it; or
- (c) any other conditions relating to it. (espace clos dangereux)
- hot work means any work where a flame is used or a source of ignition may be produced. (travail à chaud)
Confined Space Identification
11.02 (1) The employer must
- (a) survey the work place in order to determine whether it contains confined spaces that might be entered by persons in order to perform work on behalf of the employer;
- (b) identify each confined space; and
- (c) appoint a qualified person to determine whether the confined space is a hazardous confined space.
(2) The employer must ensure that the qualified person provides them with a list of confined spaces including those identified as hazardous confined spaces.
(3) The employer must keep a record of all confined spaces referred to in subsection (2) and ensure that it is up-to-date and readily accessible to persons before they enter those spaces. The employer may either keep the record in the work place or keep a centralized record in respect of several work places in one work place.
(4) If it is likely that an employee will enter, in order to perform work for the employer, a confined space that has been determined not to be a hazardous confined space, the employer must establish work procedures with respect to safe entry and exit as well as person-check and emergency response systems to ensure the continued safety of employees.
Hazard Assessment
11.03 (1) If it is likely that a person will enter a hazardous confined space in order to perform work for an employer, and an assessment under this subsection has not been carried out, the employer must appoint one or more qualified persons to
- (a) carry out an assessment of the hazards to which the person is likely to be exposed in that hazardous confined space or in the class of hazardous confined spaces to which it belongs; and
- (b) specify the tests that are necessary to determine whether the person is likely to be exposed to any of the hazards identified under paragraph (a).
(2) The qualified person or persons, must record the findings of the assessment in a signed and dated report to the employer that specifies the following:
- (a) the protection equipment referred to in part XII that is to be used by every person granted access to the hazardous confined space by the employer;
- (b) any insulated protection equipment and tools referred to in Part VIII that a person may need in the hazardous confined space;
- (c) the protection equipment and emergency equipment to be used by a person who takes part in the rescue of a person from the hazardous confined space or who responds to other emergency situations in the hazardous confined space;
- (d) the requirement for a first aid attendant, if applicable;
- (e) steps to control or mitigate the hazards that may be encountered; and
- (f) any situation in which an entry permit system is required.
(3) The employer must make a copy of the report available to the policy committee or, if there is no policy committee, to the work place committee or the health and safety representative.
(4) Subject to subsection (5), the report and the list made under subsections (2) and 11.02(2) respectively must be reviewed by a qualified person at least once every three years. However, if there is reason to believe that the conditions inside a confined space have changed with respect to the last hazard assessment, due to changes to the structure, intended use or immediate surrounding area of the space or due to information about the space regarding a potential new hazard, the space must be reassessed and treated in accordance with the new findings.
(5) If a confined space has not been entered in the three years preceding the time when the assessment referred to in subsection (2) should have been carried out and no entry is scheduled, the assessment need not be carried out until it becomes likely that a person will enter the confined space in order to perform work for an employer.
Confined Space Procedures
11.04 (1) Every employer must — after considering the report made under subsection 11.03(2) in consultation with the policy committee, or, if there is no policy committee, the work place committee or the health and safety representative — establish procedures, with the date when they are established specified in them, that are to be followed by a person entering, exiting or occupying a confined space assessed under subsection 11.03(1).
(2) The procedures apply based on whether the confined space is listed as a hazardous confined space or not under subsection 11.02(2) and take into account the report made under subsection 11.03(2). The procedures include
- (a) for each confined space
- (i) safe entry and exit procedures,
- (ii) two-way communication and person check systems, and
- (iii) emergency response measures; and
- (b) for each hazardous confined space, in addition to the requirements specified in paragraph (a), all risk control measures that would ensure the health and safety of a person in the space and an entry permit system, if required under the report.
(3) If an entry permit system is required, it must specify the length of time that each permit is valid, and require that a record be made of
- (a) the name of the person entering the confined space; and
- (b) the date and time of entry, the anticipated date and time of exit and the actual date and time of exit.
Verification Before Entry of Hazardous Confined Space
11.05 (1) No person may be granted access to a hazardous confined space unless the employer has first appointed a qualified person to
- (a) verify, by means of tests that if the atmosphere inside the hazardous confined space could be of concern, compliance with the following requirements can be achieved during the period of time that the person will be in the space, namely:
- (i) the concentration of any chemical agent or combination of chemical agents in the hazardous confined space to which the person is likely to be exposed will not exceed
- (A) the value referred to in paragraph 10.19(1)(a) for that chemical agent or combination of chemical agents, or
- (B) the percentage set out in subsection 10.20(1), or in subsection 10.20(2) under the circumstances described in that subsection for that chemical agent or combination of chemical agents,
- (ii) the concentration of any airborne hazardous substance, other than a chemical agent, that a person may be exposed to in the hazardous confined space is not hazardous to the health or safety of the person, and
- (iii) the percentage of oxygen in the air in the hazardous confined space is not less than 19.5% by volume and not more than 23% by volume, at normal atmospheric pressure;
- (i) the concentration of any chemical agent or combination of chemical agents in the hazardous confined space to which the person is likely to be exposed will not exceed
- (b) verify that the following conditions are met, or if that is not feasible, that safety measures have been taken, including the use of engineering controls to ensure the safety of the person who will be in the hazardous confined space:
- (i) any liquid in which the person could drown has been removed from the hazardous confined space,
- (ii) any free-flowing solid in which the person could become entrapped has been removed from the hazardous confined space, and
- (iii) the hazardous confined space is secured to prevent entry of hazardous materials and contaminants; and
- (c) verify that
- (i) all electrical and mechanical equipment that could present a hazard to the person has been disconnected from its power source, real or residual, and has been locked out,
- (ii) the opening for entry into and exit from the hazardous confined space is sufficient to allow the safe passage of a person using protection equipment, including the protection equipment and emergency equipment to be used by a person who takes part in a rescue of a person, and
- (iii) subject to subsection 11.06(1), the requirements set out in paragraph (a) can be complied with at all times when a person is in the hazardous confined space.
(2) The employer must ensure that the qualified person makes certain that any equipment used to test the atmosphere inside a hazardous confined space is used, calibrated and maintained in accordance with the manufacturer’s instructions.
(3) The qualified person must, in a signed and dated report to the employer, set out the results of the verification carried out in accordance with subsection (1), including the test methods, the test results and a list of the test equipment used.
(4) The employer must
- (a) if the report made under subsection (3) indicates that a person who has entered the hazardous confined space has been in danger, send the report to the policy committee or, if there is no policy committee, to the work place committee or the health and safety representative; and
- (b) in all other cases, make the report available, in paper or electronic format, to the policy committee or, if there is no policy committee, to the work place committee or the health and safety representative.
Emergency Procedures and Equipment
11.06 (1) If conditions in a hazardous confined space or the nature of the work to be performed in a hazardous confined space is such that the requirements set out in subsection 11.05(1) cannot be complied with at all times when a person is in the hazardous confined space, the employer must
- (a) in consultation with the policy committee or, if there is no policy committee, the work place committee or the health and safety representative, establish emergency procedures to be followed in the event of an accident or other emergency in or near the hazardous confined space that include
- (i) a plan for reporting the emergency, and
- (ii) a list of necessary resources to carry out the emergency procedures;
- (b) specify the date when the emergency procedures are established and provide a plan for the immediate evacuation of the hazardous confined space when
- (i) an alarm is activated, or
- (ii) there is any significant change in a concentration or percentage referred to in paragraph 11.05(1)(a) that would adversely affect the health or safety of a person in the hazardous confined space;
- (c) provide the protection equipment referred to in paragraph 11.03(2)(a) for each employee who is about to enter the hazardous confined space;
- (d) ensure that a qualified person trained in the emergency procedures established under paragraph (a) and the procedures established under section 11.04 is
- (i) in attendance outside the hazardous confined space, and
- (ii) in communication with the person inside the hazardous confined space;
- (e) in consultation with the policy committee or, if there is no policy committee, the work place committee or the health and safety representative, provide the qualified person referred to in paragraph (d) with a suitable communication device or alarm for summoning assistance; and
- (f) ensure that the required number of persons as determined in subparagraph (a)(ii) are available to assist in the event of an emergency and to carry out the emergency procedures.
(2) One of the persons referred to in paragraph (1)(f) must
- (a) be trained in the emergency procedures established under paragraph (1)(a) and receive annual refresher training;
- (b) have a basic first aid and cardio pulmonary resuscitation (CPR) certificate; and
- (c) be provided with the protection equipment and emergency equipment referred to in paragraph 11.03(2)(a).
(3) The employer must ensure that every person granted access to a hazardous confined space have at their disposal the appropriate emergency procedures set out in paragraphs 11.06(1)(a) and (b) and that they follow those procedures.
(4) The employer must ensure that every person entering, exiting or occupying a hazardous confined space referred to in subsection (1) wears an appropriate safety harness that is securely attached to a lifeline that
- (a) is attached to a secure anchor outside the hazardous confined space;
- (b) is controlled by the qualified person referred to in paragraph (1)(d);
- (c) protects the person from the hazard for which it is provided and does not in itself create a hazard; and
- (d) is, if feasible, equipped with a mechanical lifting device.
Record of Emergency Procedures and Equipment
11.07 (1) When a person is about to enter a hazardous confined space under circumstances such that the requirements set out in paragraph 11.05(1)(a) cannot be complied with, the qualified person referred to in paragraph 11.06(1)(d) must, in a signed and dated report to the employer,
- (a) specify the emergency procedures established under paragraphs 11.06(1)(a) and (b) that are to be followed and the protection equipment, insulated protection equipment and tools and the emergency equipment that are to be used; and
- (b) specify any additional procedures and any other equipment that may be needed to ensure the health and safety of the person.
(2) The report made under subsection (1) and any emergency procedures specified in it must be explained by the qualified person to every employee who is about to enter a hazardous confined space. Every employee who has received the explanation must sign and date a copy of the report to acknowledge that they have read it and that it has been explained to them.
Provision and Use of Equipment
11.08 (1) The employer must provide
- (a) each employee who is granted access to a hazardous confined space with the protection equipment specified under paragraph 11.03(2)(a); and
- (b) each employee who is to take part in rescue operations with the protection equipment and emergency equipment specified under paragraph 11.03(2)(c).
(2) The employer must ensure that every employee who enters, exits or occupies a hazardous confined space follows the procedures established pursuant to subsection 11.04(1) and uses the protection equipment specified under paragraphs 11.03(2)(a) and (b).
(3) The employer must ensure that
- (a) any person who is granted access to a hazardous confined space has the equipment specified in paragraph 11.03(2)(a), failing which the employer must provide it;
- (b) any person who is to take part in rescue operations has the protection equipment and emergency equipment set out in paragraph 11.03(2)(c); and
- (c) any person who enters, exits or occupies a hazardous confined space complies with the procedures established in subsection 11.04(1) and uses the protection equipment specified in paragraphs 11.03(2)(a) and (b).
Closing off a Confined Space
11.09 A person must not close off a confined space unless a qualified person has verified that no person is inside it.
Hot Work
11.1 (1) Unless a qualified person has determined that the work can be performed safely, hot work must not be performed in a hazardous confined space that contains
- (a) an explosive or flammable hazardous substance in a concentration in excess of 10 per cent of its lower explosive limit; or
- (b) oxygen in a concentration in excess of 23 per cent.
(2) If hot work is to be performed in a hazardous confined space that contains concentrations of flammable or explosive materials in excess of the concentrations set out in paragraph (1)(a) or (b),
- (a) a qualified person must patrol the area surrounding the hazardous confined space and maintain a fire-protection watch in that area until the fire hazard has passed; and
- (b) the employer must ensure that the emergency equipment specified under paragraph 11.03(2)(c) is provided in the area referred to in paragraph (a).
(3) If an airborne hazardous substance can be produced by hot work in a hazardous confined space, no person must enter or occupy the hazardous confined space unless
- (a) the requirements of section 11.11 are met; or
- (b) that person uses respiratory protection equipment that meets the requirements of sections 12.04, 12.05, 12.13 and 12.2.
Ventilation Equipment
11.11 (1) If ventilation equipment is used to maintain the concentration of a chemical agent or combination of chemical agents in a hazardous confined space at or below the concentration referred to in subparagraph 11.05(1)(a)(i), or to maintain the percentage of oxygen in the air of a hazardous confined space within the limits referred to in subparagraph 11.05(1)(a)(iii), the employer must not grant access to the hazardous confined space unless
- (a) the ventilation equipment is
- (i) equipped with an alarm that will, if the equipment fails, be activated automatically and be audible or visible to every person in the hazardous confined space, or
- (ii) monitored by an employee who is in constant attendance at the equipment and who is in communication with any person in the hazardous confined space; and
- (b) if the ventilation equipment fails, the person will have enough time to escape from the hazardous confined space before
- (i) the concentration of the chemical agent or combination of chemical agents in the hazardous confined space exceeds the concentration referred to in subparagraph 11.05(1)(a)(i), or
- (ii) the percentage of oxygen in the air of the hazardous confined space ceases to remain within the limits referred to in subparagraph 11.05(1)(a)(iii).
(2) If the ventilation equipment fails, the employee referred to in subparagraph (1)(a)(ii) must immediately inform any person in the hazardous confined space of the failure of the equipment.
(3) If the report referred to in subsection 11.03(2) determines that a hazardous confined space requires continuous ventilation, the employer must ensure continuous atmospheric monitoring while the hazardous confined space is occupied.
Instruction and Training
11.12 (1) The employer must provide every employee who is likely to enter a confined space with instruction and training in
- (a) the procedures and the emergency procedures established under subsection 11.04(1) and paragraphs 11.06(1)(a) and (b), respectively; and
- (b) the use of the protection equipment referred to in paragraph 11.03(2)(a).
(2) The employer must ensure that no person enters a confined space unless the person is instructed in
- (a) the procedures and the emergency procedures established under subsection 11.04(1) and paragraphs 11.06(1)(a) and (b), respectively; and
- (b) the use of the protection equipment referred to in paragraph 11.03(2)(a).
(3) The employer must ensure that all persons granted access to a confined space have received instruction and training in accordance with subsection 11.04(1) and paragraph 11.06(1)(a).
Retention of Records
11.13 The employer must keep at their place of business nearest to the work place in which the confined space is located, and make readily available in paper or electronic format,
- (a) any report made under subsection 11.03(2), the procedures established under subsection 11.04(1) and the emergency procedures established under paragraph 11.06(1)(a) for a period of ten years after the day on which the qualified person signed the report or the procedures were established;
- (b) any report made under subsection 11.05(3) for
- (i) a period of ten years after the day on which the qualified person signed the report if the verification procedures undertaken under paragraphs 11.05(1)(a) and (c) indicate that the requirements set out in subparagraphs 11.05(1)(a)(i) to (iii) were not complied with, or
- (ii) in every other case, for a period of two years after the day on which the qualified person signed the report; and
- (c) any records of employees being trained under section 11.12 for
- (i) as long as the employee works for the employer; or
- (ii) a period of two years after the day on which an employee ceases to perform any activity in a confined space.
Coming into Force
2 These Regulations come into force on the day on which they are registered.