Regulations Amending the Canada Occupational Health and Safety Regulations: SOR/2019-243

Canada Gazette, Part II, Volume 153, Number 14

Registration
SOR/2019-243 June 25, 2019

CANADA LABOUR CODE

P.C. 2019-907 June 22, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, pursuant to sections 125 footnote a, 126 footnote b and 157 footnote c of the Canada Labour Code footnote d, makes the annexed Regulations Amending the Canada Occupational Health and Safety Regulations.

Regulations Amending the Canada Occupational Health and Safety Regulations

Amendments

1 Section 1.7 of the Canada Occupational Health and Safety Regulations footnote 1 is repealed.

2 Paragraph 2.18(1)(c) of the Regulations is replaced by the following:

3 Paragraph 11.9(3)(b) of the Regulations is replaced by the following:

4 Part XII of the Regulations is replaced by the following:

PART XII

Protection Equipment and Other Preventive Measures

Interpretation

12.01 The following definitions apply in this Part.

12.02 (1) Unless otherwise indicated in this Part, any reference in this Part to a standard is a reference to that standard as amended from time to time.

(2) Any amendment to a CSA Group standard or a UL standard that is incorporated by reference in this Part is effective on the 30th day after the day on which the amendment is published by the CSA Group or by UL, as the case may be, in both official languages.

General

12.03 (1) If it is not feasible to eliminate a health or safety hazard in a work place or to reduce it to within safe limits and the use of protection equipment may eliminate or reduce the risk of injury from that hazard, every person who is granted access to the work place and who is exposed to that hazard must use the protection equipment prescribed by this Part.

(2) Despite subsection (1), a person who provides instruction and training in the provision of emergency rescue services or who is instructed and trained in the provision of those services and provides them in an emergency situation may use protection equipment other than the equipment that is prescribed by this Part.

12.04 Any protection equipment that is provided or used in a work place must be designed to protect the person from the hazard in question and must not in itself create a hazard.

12.05 (1) All protection equipment that is provided by an employer must

(2) In the case of equipment that is used in a fall-protection system, if there are no instructions from the manufacturer with respect to the storage, maintenance, inspection, testing, fitting, installation, use or dismantling referred to in paragraphs (1)(a) to (d), the equipment must be stored, maintained, inspected, tested, fitted, installed, used or dismantled in accordance with the fall-protection plan.

Fall Protection

Fall-protection Plan

12.06 (1) If there is a risk of injury due to falling in any of the circumstances described in paragraphs 12.07(1)(a), (b) or (c) in a work place, the employer must, before any work activities begin,

(2) The fall-protection plan must specify

(3) The fall-protection plan must include, in annex, a copy of any manufacturer’s instructions with respect to the storage, maintenance, inspection, testing, fitting, installation, use or dismantling of equipment that is used in a fall-protection system and that is provided by an employer.

(4) The fall-protection systems referred to in paragraph (2)(b) are to be chosen in consultation with the work place committee or the health and safety representative, as appropriate for the work area and activity in question, taking into account the following order of priority:

(5) The clearance distance referred to in paragraph (2)(d) must be sufficient to prevent a person from hitting the ground or an object or surface below the work area during a fall.

Fall-protection Systems

12.07 (1) Subject to subsection (2), an employer must provide or put in place a fall-protection system if work is to be performed

(2) If an employee is required to work on a vehicle and it is not feasible to provide or put in place a fall-protection system, an employer must

(3) The job safety analysis, instruction and training referred to in paragraph (2)(a) must be reviewed every two years in consultation with the policy committee or, if there is no policy committee, the work place committee or the health and safety representative.

12.08 (1) A fall hazard zone must be at least 2 m wide and extend the entire length of the unguarded edge.

(2) A fall hazard zone must only be established on a surface that has a slope of five degrees or less.

(3) If a person needs to carry out an activity in a fall hazard zone or cross a fall hazard zone to get to or from a work area,

(4) If a fall hazard zone system has been established in a work place, the employer must ensure that every person who is granted access to the work place is informed of the fall hazard zone system’s existence and is familiar with the procedures to be followed for accessing, performing work in and leaving the fall hazard zone.

Protection Equipment and Procedures

Fall Protection

12.09 (1) If there is a risk of injury due to falling in a work place and the fall-protection plan requires that a personal fall-protection system be used, the employer must provide such a system to every person — other than a person who is installing or dismantling a fall-protection system — who is granted access to the work place.

(2) A personal fall-protection system must meet the requirements set out in the following CSA Group standards:

(3) The components of a personal fall-protection system must meet the requirements set out in the following CSA Group standards:

(4) The components of a personal fall-protection system must be compatible and must be used in accordance with the manufacturer’s instructions.

(5) If more than one personal fall-protection system is secured to an anchorage, a separate anchorage connector must be used for each personal fall-protection system.

(6) The employer must ensure that a person who is using a personal fall-protection system wears and uses a full body harness.

(7) The employer must ensure that, before each work shift, every employee inspects their personal fall-protection system in accordance with the fall-protection plan.

(8) The employer must ensure that a person who works on an aerial device, boom-type elevating platform, scissor lift platform, forklift truck platform or any similar personnel lifting equipment in the circumstances described in subsection 12.07(1) uses a fall-restraint system that is connected to

(9) If the use of a fall-restraint system would prevent the person referred to in subsection (8) from carrying out their work, the employer must ensure that a fall-arrest system is used.

Protective Headwear

12.1 (1) Subject to subsection (2), if there is a risk of head injury in a work place, the employer must ensure that protective headwear that meets the requirements set out in CSA Group Standard Z94.1, Industrial protective headwear — Performance, selection, care, and use, or in ANSI Standard Z89.1, American National Standard for Industrial Head Protection, is worn.

(2) If the employer, in consultation with the policy committee or, if there is no policy committee, the work place committee or the health and safety representative, determines that the protective headwear referred to in subsection (1) does not eliminate or reduce the risk of injury, the employer must ensure that appropriate protective headwear selected by the employer, in consultation with the policy committee or, if there is no policy committee, the work place committee or the health and safety representative, is worn.

Protective Footwear

12.11 (1) Subject to subsection (3), if there is a risk of foot injury or electric shock in a work place, the employer must ensure that protective footwear that meets the requirements set out in CSA Group Standard Z195, Protective footwear is worn.

(2) If the employer, in consultation with the policy committee or, if there is no policy committee, the work place committee or the health and safety representative, determines that the protective footwear referred to in subsection (1) does not eliminate or reduce the risk of injury, the employer must ensure that appropriate protective footwear selected by them, in consultation with the policy committee or, if there is no policy committee, the work place committee or the health and safety representative, is worn.

(3) If there is a risk of injury due to slipping in a work place, the employer must ensure that slip-resistant footwear is worn.

Eye and Face Protection

12.12 (1) If there is a risk of injury to the eyes or face in a work place, the employer must provide every person who is granted access to the work place with eye or face protection equipment that is selected by the employer in accordance with Annex A of CSA Group Standard Z94.3, Eye and face protectors, and that meets the requirements set out in that standard.

(2) If there is routine exposure to irritating airborne chemical agents, intense heat, liquid splashes, molten metals or similar agents in a work place, contact lenses must not be worn.

Respiratory Protection

12.13 (1) If there is a risk of injury or disease due to exposure to an airborne hazardous substance, other than a CBRN agent, or an oxygen-deficient atmosphere in a work place, the employer must provide every person who is granted access to the work place with respiratory protection equipment that

(2) If air is provided by means of respiratory protection equipment referred to in subsection (1), the air and the system that supplies the air, including its cylinders, must meet the requirements set out in CSA Group Standard Z180.1, Compressed breathing air and systems.

(3) If there is a risk of injury or disease due to exposure to CBRN agents in a work place, the employer must provide every person who is granted access to the work place with respiratory protection equipment for protection against those CBRN agents that

(4) The employer must ensure that respiratory protection equipment referred to in subsection (1) and subparagraph (3)(b)(i) is used and cared for in accordance with CSA Group Standard Z94.4, Selection, use, and care of respirators.

Skin Protection

12.14 (1) If there is a risk of injury or disease to or transmitted through the skin in a work place, the employer must provide every person who is granted access to the work place with

(2) If sunscreen is provided by the employer, the sunscreen must be broad-spectrum and have a minimum sun protection factor of 30.

Protection Against Drowning

12.15 (1) If there is a risk of drowning in a work place, the employer must

(2) If the work place is a wharf, dock, pier, quay or similar structure, a ladder that extends at least two rungs below water level must be installed on the face of the structure every 60 m along its length.

Loose Clothing

12.16 If there is a risk of injury in a work place that is due to loose clothing, long hair, jewellery or similar items, the employer must ensure that, if those items are worn, they are tied, covered or otherwise secured in order to eliminate or reduce the risk of injury.

Protection Against Moving Vehicles

12.17 If there is a risk of injury in a work place that is due to moving vehicles, the employer must provide every person who is granted access to the work place with high-visibility safety apparel that meets the requirements set out in CSA Group Standard Z96, High-visibility safety apparel.

Defective Equipment

12.18 If an employee finds a defect in protection equipment that may render it unsafe, they must report the defect to their employer as soon as feasible.

12.19 (1) An employer must remove from service any protection equipment that has a defect that may render it unsafe and must mark or tag that equipment to indicate that it is unsafe for use.

(2) Protection equipment that has a defect that renders it unsafe may only be returned to service if it is restored to good operating condition by a qualified person in accordance with section 12.05.

Instruction and Training

12.2 (1) An employer must ensure that every person who is granted access to a work place and who uses protection equipment is provided with instruction by a qualified person in the use of that equipment.

(2) The employer must ensure that, in addition to the instruction referred to in subsection (1), every employee who uses protection equipment is provided with instruction and training by a qualified person in the operation and maintenance of the equipment and training by a qualified person in its use.

(3) If a fall-protection plan has been developed for a work place under paragraph 12.06(1)(a), the employer must ensure that every employee is provided with training by a qualified person in respect of the fall-protection plan.

(4) If there is a risk of drowning in a work place, the employer must ensure that every person who is granted access to the work place is provided with instruction by a qualified person in respect of the written emergency procedures referred to in paragraph 12.15(1)(e).

(5) The employer must ensure that the instruction and training referred to in subsections (1) to (4) is summarized in writing and must keep a copy of that summary readily available for consultation by every person who is granted access to the work place.

Records

12.21 (1) An employer must keep a record of all of the protection equipment that is provided by them other than disposable equipment.

(2) The record must contain the following information:

(3) The record must be kept at the work place where the protection equipment is located and must continue to be kept there for a period of two years beginning on the day on which the equipment is permanently removed from service or, if a standard referred to in this Part requires that records be kept in respect of that equipment for a longer period, for that longer period.

Coming into Force

5 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues: A review of Part XII (Safety Materials, Equipment, Devices and Clothing) of the Canada Occupational Health and Safety Regulations (COHSR), conducted between 2008 and 2012, identified a number of issues, including outdated references to health and safety standards (e.g. for protective footwear and fall-protection equipment); the need to modernize the fall-protection system and training requirements; misalignment of federal requirements under Part XII with those under other parts of the COHSR, the Canada Labour Code (the Code) and provincial law; and a lack of clarity in the regulatory text. Most employers comply voluntarily with the latest standards; however, the presence of outdated references to standards in the COHSR may prevent enforcement action where obsolete equipment or clothing is in use, and there may be an associated risk to the health and safety of employees within federally regulated work places.

Description: The Regulations Amending the Canada Occupational Health and Safety Regulations (the amendments), which amend Part XII of the COHSR, apply to all federally regulated employers and employees in federally regulated industries, except employees on board ships, aircraft or trains, and employees in the oil and gas sector under federal jurisdiction. Among other changes, the amendments

  • update the references for all standards that are incorporated by reference;
  • modernize the section on fall-protection systems in order to properly reflect industry standards and practices and to reference newly developed standards;
  • revise the requirements for the selection, fit, care of, use and maintenance of respiratory protection equipment;
  • revise the section on protection against moving vehicles to better protect employees; and
  • align federal requirements under Part XII with those under other parts of the COHSR, the Code and provincial laws, and clarify the regulatory text.

Cost-benefit statement: The total costs associated with the amendments are estimated to be $21.7 million over 20 years (present value), mainly due to the development of a fall-protection plan and the training of employees on the plan. The benefits are estimated to be $37.1 million, most of which are expected from reduced injuries and fatalities from falling as a result of the implementation of the fall-protection plan and employees’ awareness of the plan. The net benefit is approximately $15.4 million.

The amendments will also reduce administrative burden, specifically the elimination of record-keeping requirements in relation to equipment that is disposable. The benefits from this reduction are estimated at approximately $6 million over 20 years. footnote 2

“One-for-One” Rule and small business lens: footnote 3 The amendments are not expected to result in any incremental administrative burden, either because a given provision has no associated administrative activity, or because administrative activities are already being performed by regulated parties. The amendments clarify that employers are only to keep records of the protection equipment they provide other than disposable equipment: this will decrease administrative burden by an estimated annualized value of $305,301 over 10 years ($2012, 2012 present value, 7% discount rate).

The regulatory changes do impose costs on small businesses; therefore, the small business lens applies. Application of the lens identified costs to small businesses totalling $2.4 million ($2019, present value), or an annualized cost of $75 per small business for the 10-year period after the implementation of the amendments. Small business enterprises were estimated to make up a significant share (81%) of the business enterprises directly affected by the amendments and, therefore, they also make up a considerable share of the total estimated costs of the new regulatory requirements.

Domestic and international coordination and cooperation: The amendments include updated or new references to the most recent standards from the CSA Group, UL and from relevant industrial standard-setting bodies from the United States of America. The CSA Group and UL standards are developed taking into consideration international standards. These updates will lead to harmonization with provinces and territories, and assist with labour mobility between Canadian jurisdictions. In addition, a few elements in Part XII of the COHSR have been identified as important objectives under the Canadian Free Trade Agreement (CFTA) 2018–2019 Regulatory Reconciliation and Cooperation Table (RCT) Work Plan.

Background

The Canada Occupational Health and Safety Regulations (COHSR) are made pursuant to Part II (Occupational Health and Safety) of the Canada Labour Code (the Code), the purpose of which is to prevent accidents and injuries arising out of, linked with or occurring in the course of employment in federally regulated industries. Part II of the Code applies to interprovincial and international transportation, chartered banks, telecommunications, broadcasting, shipping and related services, the grain industry, feed and seed mills, uranium mining, most Crown corporations, and the federal public administration. Employees in these industries account for approximately 8% of the Canadian work force. Other regulations apply to employees on board ships, aircraft or trains, and employees in the oil and gas sector under federal jurisdiction.

Where it is not feasible to eliminate a health or safety hazard in the work place, Part XII (Safety Materials, Equipment, Devices and Clothing) of the COHSR prescribes safety material, equipment, devices and clothing that must be used by employees and persons granted access to the work place to protect their health and safety. It also describes the types of equipment that must be provided by employers.

Since the COHSR came into force in 1986, Part XII has been amended on six occasions. A majority of the amendments were housekeeping in nature; however, there were two significant amendments that continue to protect the health and safety of federally regulated employees.

In April 2008, a working group, comprising representatives of employers and employees and the Labour Program of Employment and Social Development Canada (the Labour Program) experts in the area of occupational health and safety (OHS), was created with the intent to conduct an in-depth review of Part XII. Part XII was identified as a priority for review by the working group, given that a majority of the referenced standards were out of date (most of them being over 25 years old); technical requirements were not up to industry standards, nor were they harmonized with other Canadian jurisdictions; and there was a need to clarify the language of certain sections of the COHSR, as it led to cases of misinterpretation.

Between 2009 and 2011, eight working group meetings and five sub-committee meetings took place, the latter of which reviewed issues solely related to fall-protection systems, given the complexity of this matter and the need for expertise. As a result of these meetings, a final report was prepared in 2012, forming the basis for a series of proposed amendments to Part XII, and disseminated to stakeholders via email. The final report was approved by the working group on November 21, 2012.

Issues

The review identified a number of issues, including the references to outdated health and safety standards (e.g. for protective footwear and fall-protection equipment); the need to modernize the fall-protection system and training requirements; misalignment of federal requirements under Part XII with those under other parts of the COHSR, the Code and provincial laws; and a lack of clarity in the regulatory text. Most employers comply voluntarily with the latest standards; however, the presence of references to outdated standards in this Part may prevent enforcement action where obsolete equipment or clothing is in use, and there may be an associated risk to health and safety of employees within federally regulated work places.

It is estimated that there are approximately 1 200 lost-time injuries per year due to falls from heights in the federal jurisdiction, and approximately 3 to 4 fatalities per year. The previous Part XII of the COHSR was clearly not effective in protecting the employees from injuries as a result of falls from heights.

Objectives

The main objectives of the amendments to Part XII of the COHSR, set out in the Regulations Amending the Canada Occupational Health and Safety Regulations (the amendments), are to

Description

The amendments apply to all federally regulated employers and employees in federally regulated industries, except employees on board ships, aircraft or trains, and employees in the oil and gas sector under federal jurisdiction. Below will highlight the major amendments to Part XII.

Update references to standards

The amendments update the references to standards that are incorporated by reference in order to ensure that employees are using modern safety technology and are provided with better protection in the work place. The sections in which new standards have been incorporated or references to existing standards have been updated relate to protective headwear, protective footwear, eye and face protection, respiratory protection, fall protection equipment, protection against drowning and protection against moving vehicles.

The amendments include references to the most recent versions of standards published by the CSA Group, the Canadian General Standards Board (CGSB) and the UL (previously known as the Underwriters Laboratories). These standards were prepared and formally approved by technical committees, composed of employee and employer representatives as well as federal and provincial government experts. The technical committees consider other international standards before a standard is submitted to the Standards Council of Canada for approval as a National Standard of Canada. For example:

The updates to the section on protection against drowning will incorporate by reference CGSB Standard 65.7 (in its 2007 version), Life Jackets, and UL Standard 12402-5, Personal flotation devices — Part 5: Buoyancy aids (Level 50) – Safety requirements, when tested in accordance with the UL Standard 12402-9, Personal Flotation Devices — Part 9: Test Methods. Although CGSB Standard 65.7 was withdrawn by the CGSB in 2016, it is the standard referenced by Transport Canada in the Fishing Vessel Safety Regulations that was amended in 2017. Referencing these standards also works toward fulfilling the Government of Canada’s commitment set out in the National Occupational Health and Safety Reconciliation Agreement to recognize common standards for OHS requirements across Canada. CGSB Standard 65.7 is also the only standard on life jackets currently available in Canada that is still considered to be safe and is still being used by manufacturers.

A provision was added to address a situation in which an amendment to a CSA Group standard, or a UL standard that is incorporated by reference in Part XII of the COHSR could be published and only available in one of the official languages. Following this new provision, any amendment to a CSA Group standard or a UL standard that is incorporated by reference in Part XII is effective on the 30th day after the day on which the amendment has been published by the CSA Group or the UL, as the case may be, in both official languages.

Storage, inspection, installation, maintenance and use of protection equipment

The amendments prescribe that all equipment be properly stored, used, maintained, inspected and, if applicable, tested, fitted, installed and dismantled by a qualified person in accordance with the manufacturer’s instructions, if any, to ensure that it is in good working condition. In case the manufacturer’s instructions do not exist for fall-protection equipment, a written instruction jointly developed by the employer and the work place committee or the health and safety representative must be included in the fall-protection plan for the qualified person to follow.

Fall protection

The amendments update provisions relating to fall protection as well as the references to the standards incorporated by reference, harmonize the amendments with other Canadian jurisdictions, both provincial and territorial, and clarify language and terminology in order to better ensure proper protection for employees where there is a risk of falling from heights in the work place.

Fall-protection plan. The amendments require that the employer develop a fall-protection plan in consultation with the work place committee or the health and safety representative. The employer is also required to provide every person who works at heights with training on the fall-protection plan, and make the plan readily available at the work place for consultation.

Minimum height at which a fall-protection system is required. Previously, Part XII of the COHSR required that employers provide each affected employee with a fall-protection system when employees are working at a height of 2.4 metres or higher from an unguarded structure, on a vehicle or a ladder. The amendments change this to 3 metres or higher to harmonize with other jurisdictions in the country. This amendment will not reduce the protection for employees since the general duty clause set out in section 124 of the Code requires that every employer must ensure that the health and safety at work of every person employed by the employer is protected. This means that employers have the responsibility to assess all hazards in the work place and provide the appropriate protective measures even if employees are to be working at a height of less than 3 metres if the fall would present a greater risk of injury than falling on a solid, flat surface.

Provision of fall-protection systems. The previous provision in Part XII of the COSHR, which required that every employer provide a fall-protection system to every person granted access to the work place, has been simplified. The word “unguarded” is removed as persons working on guarded structures (e.g. devices for window cleaning and scissor lifts) also need fall protection. Furthermore, the distinction between temporary and permanent structures has been removed as they require the same fall protection.

Fall-protection hierarchy. A particularly important amendment is the addition of a section dealing with a fall-protection hierarchy that requires employers to ensure that the appropriate fall-protection system is selected by following the prescribed order of priority. For falls from an elevation of 3 metres or more, the hierarchy of fall protection requires particular measures to be taken to prevent workers from falling or to protect from injury as a result of such a fall. The hierarchy of fall protection is (in order of priority)

This fall-protection hierarchy is the preferred order of control to eliminate or reduce fall hazards recommended by the Part XII working group. The selection of a method for fall protection by employers depends on what is appropriate for the work area and activity in question and must follow the presented order of priority.

Clearance distance and full body harness. The amendments add the requirement that fall-arrest systems must be designed to prevent a person from hitting the ground or an object or level below the work area during a fall, and the employer must ensure that an employee who is using a personal fall-protection system wears and uses a full body harness.

Personnel lifting equipment. The amendments prescribe that a fall-restraint system connected to an anchorage must be used when working on an aerial device, boom-type elevating platform, forklift truck platform, scissor lift platform or any similar personnel lifting equipment.

Fall hazard zone system

The amendments define the term “fall hazard zone system,” which consists of a fall hazard zone that extends at least two metres back from the unguarded edge, and requires the employer to ensure the presence of a fall hazard zone monitor if an activity needs to be carried out in a fall hazard zone.

Respiratory protection

The amendments will update the requirement to use respirators listed in the NIOSH’s Certified Equipment List and to meet the requirements set out in CSA Group Standard Z94.4, Selection, use, and care of respirators related to respiratory protection and protection of the respiratory tract against hazardous substances or oxygen deficiency. Previously, Part XII of the COHSR did not address the selection of respirators for protection against radiological contaminants or contaminants meant to be used in weapons for mass destruction/terrorism. The incorporation by reference of the CSA Group Standard Z1610, Protection of first responders from chemical, biological, radiological, and nuclear (CBRN) events, in the amendments will protect first responders who are or may be exposed to chemical, biological, radiological and nuclear (CBRN) agents. The amendments will require the employer to provide respiratory protective equipment in accordance with the CSA Group Standard Z1610.

For non-first responders such as employees of Canadian Broadcasting Corporation, Atomic Energy Canada Limited, or Defence Research and Development Canada researchers who may become exposed to or work with those agents on a daily basis, the employer will be able to provide persons with the best protection available. The selection of respirators is in accordance with either CSA Group Standards: CSA Group Standard Z94.4 that addresses only NIOSH approved respirators or CSA Group Standard Z1610 related to respiratory protection for first responders from CBRN events.

Protection against moving vehicles

The previous wording in the COHSR has been amended to remove the notion that an employee must be “regularly exposed” to contact with a moving vehicle to be provided protection equipment, as it is ambiguous and subjective. The new wording will protect all employees when there is a hazard from moving vehicles in the work place regardless of the frequency of the exposure.

To avoid restricting the application of preventive measures to the provision of barricades as it was previously prescribed in the COHSR, the specific reference to barricades has been removed since several other preventive measures could be put in place by the employer under the Code to control the working area and to ensure the health and safety of employees.

A reference to the CSA Group Standard Z96, High-visibility safety apparel has also been added to ensure that if high-visibility safety apparel is provided by the employer, it must meet the requirements of the standard and offers appropriate protection for employees.

Other amendments

The general provisions have been amended to more closely align them with section 122.2 of the Code, i.e. elimination of hazards first, then the reduction of hazards and finally, the use of protective equipment.

The addition of a reference to the American National Standard for Industrial Head Protection Standard Z89.1 from the American National Standards Institute (ANSI) helps harmonize the amendments with other jurisdictions, namely the provinces and territories as well as the United States of America, all of which prescribe CSA Group or ANSI approved industrial hard hats.

The other amendments to Part XII are housekeeping in nature and involve modernizing the language to provide greater clarity.

Regulatory and non-regulatory options considered

The options considered were maintaining the status quo or amending the existing provisions.

A regulatory framework is already in place that regulates personal protective equipment, clothing, devices or materials; however, the previous Part XII of the COSHR did not take into account industry’s best practices and updated standards. Although employers have voluntarily implemented the latest 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, and a regulatory option was therefore selected.

Benefits and costs

Derivation of costs

The Labour Program conducted a cost-benefit analysis of the regulatory proposal and found that the section prescribing employers to develop and implement a fall-protection plan and provide employees with instructions and training on any fall from height hazards in their work place carried a significant resource impact. Other major changes prescribed in the amendments are deemed to carry no significant impact. These are summarized below.

Changes to respiratory protection requirements

The amendments update the references to the CSA Group standards Z94.4, Selection, use, and care of respirators and Z180.1, Compressed breathing air and systems, such that it is the most recent version that is incorporated by reference. The amendments also reference a new CSA Group Standard Z1610, Protection of the first responders from chemical, biological, radiological and nuclear (CBRN) events. It is expected that these changes will not result in significant costs or benefits because the vast majority of employers already meet the requirements prescribed in the amendments, as suppliers tend to conform to the latest applicable standards.

Changes to protection against drowning requirements

The amendments update the standards referenced for the use of life jackets to CGSB Standard 65.7, Life Jackets (in its 2007 version), and for personal flotation devices to the following standards: UL Standard 12402-5 for Personal flotation devices — Part 5: Buoyancy aids (Level 50) —Safety requirements, when tested in accordance with UL Standard 12402-9, Personal Flotation Devices — Part 9: Test Methods. In spite of these updates, it is expected that there will be no significant costs or benefits as a result, because the vast majority of employers are already meeting the requirements prescribed in these standards, as suppliers tend to conform to the latest applicable standards in their product lines.

Changes to fall-protection system requirements

The important change here concerns a modification of the minimum height (from 2.4 to 3 metres) mandating the use of a fall-protection system, in cases where there is a risk of injury due to falling from heights from a structure or vehicle. It is estimated that the impact of this change will be negligible given the number of fall-related injuries from heights between 2.4 and 3 metres represents only a fraction of total fall-related injuries in the federal jurisdiction. Moreover, other prevention measures mandated by the COHSR would already mitigate any theoretical increase in risk.

Addition of a fall-protection hierarchy

The fall-protection hierarchy requires employers to ensure that the appropriate fall-protection system is selected, taking into account the prescribed order of priority. This will have minimal impact, as the design and installation of fall protection equipment is almost always done by a qualified individual, in accordance with any applicable manufacturer’s instructions and this should take into account the appropriateness of the equipment or system for a given level of fall risk.

Additional requirements related to fall-arrest systems

The amendments add the requirement that fall-arrest systems be designed to prevent a person from hitting the ground, an object or level below the work area during a fall, and that the employer must ensure that an employee who is using a fall-arrest system wears and uses a full body harness. It is expected that the impact of these changes will be minimal. Despite the fact that the amendments make explicit reference to it, the previous regulatory language of “fall-arrest system” already implies a full body harness.

Additional requirements governing a fall hazard zone system

There is no specific wording applicable to a fall hazard zone system in the previous version of Part XII of the COHSR. The amendments address the issue of a fall hazard zone system and regulate its use. It is anticipated that the addition of these sections will have minimal impact, as a fall hazard zone system is already used, even though they were not explicitly addressed in the previous regulations, these sections clarify the requirements around its use.

Additional requirements for storage

The previous Part XII of the COHSR did not contain any requirements regarding the storage, use and fitting of protection equipment. The amendments prescribe that all equipment be properly stored, used, maintained, inspected and, if applicable, tested, fitted, installed and dismantled by a qualified person in accordance with the manufacturer’s instructions, if any, to ensure that it is in good working condition. It is anticipated that this will only have a negligible impact as storage, inspection, use, fitting, installation, dismantling and maintenance would already be recommended by the manufacturer and employers have an interest in ensuring that the appropriate manufacturer’s instructions are followed.

Additional requirements for personnel lifting equipment

The amendments prescribe that a fall-restraint system connected to an anchorage be used when working on an aerial device, boom-type elevating platform, forklift truck platform, scissor lift platform or any similar personnel lifting equipment. It is anticipated the addition of these requirements will lead to reductions in the number of injuries and fatalities. As a result, their impacts are quantified in this study under the support of the fall protection plan.

Fall-protection plan

It is anticipated that the development of the fall-protection plan and the requisite training to employees who work from heights will cost affected employers approximately $21.7 million (present value in $2019) over the 20-year cost-benefit period (2020–2039), with a significant portion accruing in the first year after implementation, approximately $8.3 million. In years 2 to 20 of the cost-benefit analysis period, total costs are expected to average $1.5 million annually. The reason for the large drop in the subsequent years is that in the first year after the amendments come into force, all employees regularly subjected to fall hazards will have to be trained, but in the years thereafter, only new employees will have to be trained; with follow up training for those who have received the initial core training only consisting of a one-hour review every three years. Total costs for the fall-protection plan consist of the following three components:

1. Development of a fall-protection plan

It is expected that the required time to develop the fall-protection plan will vary in accordance with work site size: for work sites with 1–5 employees, the average amount of time to develop a plan is estimated at 3 hours; work sites with 6–10 employees, 4 hours; 11–50 employees, 6 hours and over 50 employees, 8 hours.

The number of work sites for each affected industry was obtained and broken down by work site size; this made it possible to estimate the total number of hours, by industry, required for the development of the fall protection plan. The total number of hours was then multiplied by the average wage rate for the selected industry. Finally, industry-wide costs were added together to obtain a total cost for the federal jurisdiction. Total costs were estimated at approximately $1 million for the 20-year cost-benefit analysis period; the bulk of these costs will accrue in the first year after implementation of the amendments.

2. Training of employees on the fall-protection plan

It is estimated that in 2020, approximately 59 000 employees in the federal jurisdiction will be exposed to fall hazards from heights as part of their regular work duties and will require core training on the fall-protection plan developed for their work place. Each year, accounting for employment growth and replacements for retiring employees, it is estimated that an additional 1 850 employees will also require core training. Core training is estimated at just less than 3 hours.

Every 3 years, it is expected that employees who have already received the core training would require approximately one hour of self-review (refresher training) on their work place fall-protection plan and training.

Training costs (not including plan development or modification costs) are estimated at approximately $7.3 million in the first year after implementation of the amendments (there would be no refresher training until the 4th year after implementation); total costs average approximately $710,000 thereafter. Core training costs are estimated at approximately $178 per trained employee per year and slightly above than $30 for each employee receiving refresher training.

Core training costs were derived from the following components. The opportunity cost of the training, which represents approximately 3 hours salary for each employee taking the training (including overhead). In addition, the actual training instruction costs, which is estimated in the range of $97 per trainee.

3. Modifications to the fall-protection plan

It is expected that modifications to the fall-protection plan will be needed at least once a year. It is estimated that the opportunity cost for modifying the plan will be equal to two hours in average hourly labour costs (weighted for the affected industries). Total costs to affected employers across the federal jurisdiction will be in the range of $680,000 annually.

Derivation of benefits

Fall-protection plan

It is well established that safety training leads to reductions in work-related injuries. In a seminal 2009 study, using a large dataset of merged training and injury data from the United States Bureau of Labor Statistics and utilizing a cross-sectional model (highly applicable to the Canadian context), Waehrer and Miller sought to quantify the degree to which safety training reduces particular types of injuries. They found that training specific to fall protection decreases the probability of injury by approximately 5.7%. footnote 5

It is estimated that there are approximately 1 200 lost-time injuries due to falls from heights in the federal jurisdiction per year and approximately 3 to 4 fatalities per year. The estimated number of fall injuries and fatalities was held constant for the 20-year cost-benefit analysis period. The reason for this stems from the fact that the number of fall-related injuries has remained steady over the last five years, independent of population growth. It is estimated, based on the findings of the Waehrer and Miller study (2009), that the prescribed training on the fall-protection plan will result in a 5.7% annual reduction in fall-related injuries and fatalities in the federal jurisdiction; reductions of approximately 68 lost-time injuries and 0.20 fatalities (or 1 fatality every 5 years) per year. This will result in annual savings of approximately $2.9 million per year.

Reduction in administrative costs

The amendments eliminate administrative record-keeping requirements by employers with respect to disposable equipment, such as hand gloves and hearing protection. As a result of this reduced administrative burden, it is estimated each affected employer will, on average, spend one hour less per year at each of their work sites. It is estimated that approximately 5 652 employers will be affected, with an average of 2 work sites per employer (1.27 for small businesses and 5.1 for medium and large sized businesses). Savings per work site, per year, are estimated at approximately $55.82, and assuming 90% compliance, this will result in total savings of approximately $6 million (present value in $2019) over 20 years across the federal jurisdiction. Annual average total savings are estimated at approximately $567,000 and annual average savings per affected employer/business in reduced administrative costs are estimated at approximately $100.

Other changes prescribed in the amendments are deemed to carry no significant impact. Please refer to the cost-benefit analysis report for further information (available on request through the contact listed below).

Cost-benefit statement

The net present value (NPV) of these regulations over 20 years, with discount rate taken at 7%, indicates total benefits exceeding total costs by $15,398,912 ($2019), on total discounted 20-year benefits of $37,148,529 and total discounted costs of $21,749,617. The benefits to cost ratio for the proposed regulatory amendments is 1.7:1.

Table 1: Cost-benefit statement
 

Base Year

Other Relevant Years

Final Year

Total (Present Value)

Annualized Average

A. Quantified impacts (present value [2019] in $1,000,000 CAD, 2019 price level, 7% discount rate, 2020–2039)

Benefits

Medium/large employers

2020

2039

$26.6M

$2.5M
 

Small employers

2020

2039

$10.6M

$1.0M
 

All employers

2020

2039

$37.1M

$3.5M

Costs

Medium/large employers

2020

2039

$15.3M

$1.4M
 

Small employers

2020

2039

$6.5M

$0.6M
 

All employers

2020

2039

$21.7M

$2.1M

Net benefits

$15.4M

$1.5M

B. Quantified impacts in non−$ (e.g. from a risk assessment)

Positive impacts

By stakeholder

N/A

Negative impacts

By stakeholder

N/A

Distributional analysis

Gender analysis

Of the almost 50 000 occupational injuries in Canada for all jurisdictions caused by falls in 2014 and which resulted in time away from work, approximately 57% afflicted males and 43% females. When broken down by type of fall, the differences are more pronounced. Injuries resulting from falls or jumps to lower levels are more likely to involve males, 75% versus 25% for females. For falls on the same level, the difference is small, with females accounting for 52% to 48% for males. In terms of the 66 occupational fatalities from falls in Canada in 2014, 62 involved males versus 4 for females. footnote 6

Age analysis

In 2014, workers over the age of 45 had a slightly higher incidence rate for occupational injuries and fatalities from falls than did workers younger than the age of 45.

Industry analysis

The cost distribution across sectors is as follows: Road Transport, 46%; Air Transport, 19%; Communications, 11%; Rail Transport, 6%; Water Transport, 4% and the remaining 14% spread out across other sectors. These estimates are approximations.

“One-for-One” Rule

The amendments eliminate administrative record-keeping requirements by employers with respect to certain personal protective equipment. The “One-for-One” Rule therefore applies to the amendments, which is considered an “OUT” under the Rule.

The previous version of Part XII of the COHSR prescribed that employers maintain records of all personal protective equipment they provide, including disposable equipment such as hand gloves and hearing protection, which do not require regular inspection or testing. The amendments clarify that these requirements are only applicable to non-disposable personal protective equipment that requires regular inspection or testing.

As a result of this reduced administrative burden, it is estimated each affected employer will, on average, spend one and a half hours less per year at each of their work sites. It is estimated approximately 5 652 employers will be affected, with an average of 2 work sites per employer (1.27 for small businesses and 5.1 for medium and large sized businesses). Savings per work site, per year, are estimated at approximately $50.31 (including overhead, $2012) leading to total savings of approximately $3.7 million (present value, $2012) over 10 years (2019–2028) across the federal jurisdiction. Annualized average total savings are estimated at approximately $305,301 and annualized average savings per affected employer/business in reduced administrative costs are estimated at approximately $54.

Stakeholders were consulted and expressed their support for modifying the wording slightly to clarify that employers are only to keep records of the protection equipment other than disposable equipment.

Small business lens

Small businesses were estimated to comprise 81% of the total business enterprises directly affected by the amendments, and therefore, also make up a considerable share of the total estimated costs of the new regulatory requirements. Therefore, the small business lens (SBL) applies to the amendments. The breakdown of small businesses by industry is as follows:

Table 2: Percentage of small businesses by affected industry sectors (federal jurisdiction)

Industry Sector

Percentage (%) of Small Businesses (Est.)

Tanker trucking

89

Aircraft maintenance, repair and re-fueling

81

Long shoring

83

Marine transportation (off-board)

83

Telecommunications

73

Rail transportation (off-board)

64

Source: Federal Jurisdiction Injuries Database, Labour Applications 2000 Database, Labour Program, ESDC

Under an initial option, small businesses were treated equally as larger business without having any exemption of regulatory requirements. It is estimated that approximately 4 579 small businesses will be affected by the new fall protection requirements, encompassing some 5 821 work sites with approximately 14 200 affected employees; at an average cost of $103 per year, per small business. Total costs to small businesses are estimated at approximately $1,026 for the period 2020–2029 (present value with $2019). First year costs are significantly higher given that small business will both have to develop their fall protection plans from scratch and provide core training to all employees in this period. In later years, only new employees will be expected to have core fall protection training (2.9% of affected employees), already trained employees are only expected to have refresher training after three years and the fall protection systems will already have been developed and may only require modifications, if applicable.

The only non-labour costs are the actual costs to teach the course by a professional third-party training provider, estimated at $97 for each employee taking the training and this figure is based on a sample of prices given by training providers offering fall protection training.

To further reduce costs to small business, the flexible option was developed. Under this option, employers of small businesses are no longer required to maintain records for personal protection equipment that does not require regular testing or inspection. This will reduce the associated costs of the amendments by approximately 50% or some $500 per small business over 10 years.

This exemption for certain types of personal protection equipment was subsequently applied to all affected businesses and is reflected in the “One-for-One” Rule section of this statement to show the reduction in administrative burden associated with these amendments.

Table 3: Summary of small business lens

Small Business Lens Summary

Number of small businesses impacted

4 579

Number of years

10

Base year for costing

2020

Compliance Costs

Annualized Value

Present Value

TOTAL

$668,733

$4,696,898

Administrative Costs

Annualized Value

Present Value

TOTAL

−$324,941.76

−$2,282,255

TOTAL COST (all impacted small businesses)

$343,791

$2,414,643

Cost per impacted small business

$75.08

$527.33

Consultation

Part XII working group

Between 2008 and 2012, the Labour Program engaged employers, employees and provincial governments through a working group to conduct an in-depth review of Part XII of the COHSR. Through this engagement, stakeholders expressed their support for the proposed amendments, with two non-consensus items identified.

1. The first non-consensus item is related to eye protection. Employee representatives proposed that employers provide employees with sunglasses that meet the appropriate standard, where eye protection against ultraviolet radiation (UVR) associated with sunlight is required. The employers believed that this was already covered by the currently referenced CSA Group Standard Z94.3-M1982, Industrial Eye and Face Protectors, and did not see a need to create a specific section regarding sunglasses.

The Labour Program’s position is that the incorporated CSA Group Standard Z94.3, Eye and face protectors, in the amendments already addresses the issue of sun protection for outdoor workers. Therefore, it is unnecessary to itemize sunglasses specifically as there are many types of eye and face protectors that are covered by the referenced standard.

2. The second non-consensus item is relating to personal protection equipment. The interpretation of the current COHSR requires employers to provide all personal protective equipment free of charge, except for safety headwear and footwear. The employee group proposed that safety headwear and footwear also be provided free of charge. The employer group did not agree that employers should provide all personal protective equipment at no cost to the employee as the choice of protective headwear and footwear is highly subjective and varies for each employee.

Taking into consideration that Part XII, and most jurisdictions in Canada, do not require the employer to pay for safety headwear and footwear, and that health and safety has never been raised as a concern in this regard since Part XII has always required employees to use safety headwear and footwear when faced with a hazard of injury to the head or foot, the Labour Program’s position is that status quo be maintained, such that the employer is not be required to provide safety headwear and footwear free of charge to the employees.

Since then, stakeholders have reiterated a few times their support for the amendments, as well as their desire to see them enforced as soon as possible to the Labour Program through ongoing Occupational Health and Safety Advisory Committee meetings.

Public consultations after the publication of the proposed amendments in the Canada Gazette, Part I

On March 18, 2017, the proposed amendments were published in the Canada Gazette, Part I, followed by a 30-day public consultation period. During this period, the Labour Program received 134 comments from 21 stakeholders. While most comments were minor in nature (e.g. seeking clarification), some were more significant. These comments were examined in-depth and considered when finalizing the amendments.

Before the publication of the proposed amendments in the Canada Gazette, Part I, the Labour Program reached out to stakeholder representatives to inform them of the upcoming regulatory proposal, including the Saskatchewan First Nations Safety Association, which serves 74 First Nations communities in Saskatchewan to develop and integrate strategies and awareness campaigns on occupational health and safety and risk management in First Nations communities and organizations. Stakeholders were also informed of the 30-day comment period to provide comments on the proposed amendments.

Below is a summary of major comments and responses.

Comment No. 1: The minimum height at which a fall-protection system is required if work is to be performed from a structure, on a vehicle, or from a ladder.

In the proposed amendments published in the Canada Gazette, Part I, the minimum height at which a fall-protection system is required was set at 3 metres, an increase of 0.6 metres from the previously prescribed 2.4 metres. Some stakeholders were concerned that such an increase would reduce the protection of workers, and therefore increase injury incidents at work places.

Response No. 1: The 3-meter minimum height was proposed in the Canada Gazette, Part I, to harmonize with requirements in all other jurisdictions in Canada, which require 3 metres as the minimum height for the use of a fall-protection system for working at heights. The ongoing efforts to harmonize OHS regimes across Canada facilitate consistent training throughout the country and consistent use of equipment.

In addition, research shows that increasing the minimum height from 2.4 metres to 3 metres would only slightly increase the risk of head injuries by approximately 1.5%, but would also decrease chest injuries by approximately 8.9%. Since reported injuries to the head or chest from falls were very few every year, the impact of this increase is not statistically significant.

Therefore, the proposed minimum height of 3 metres for a fall-protection system remains unchanged in the final amendments.

Comment No. 2: The control zone

Some stakeholders opposed the use of a control zone, as it is only considered a warning method that provides a visual and physical reminder of the presence of the fall hazard, and therefore is not a real fall-protection system that will restrain a person from falls or arrest a fall. It was also pointed out that a minimum of a 2-metre width of the control zone is required by other jurisdictions in Canada. In addition, some stakeholders were concerned that the addition of a control zone would be applied to other federal OHS regulations, which could lead to an increased exposure of workers to fall hazards at some work places under certain conditions.

Response No. 2: The control zone is considered a key work procedure in minimizing the hazard of injury to an employee from a fall from heights, and is required to be the last resort in the fall protection hierarchy when developing a fall-protection system. However, the term “control” could be misinterpreted, as, in the occupational health and safety and industrial hygiene fields, it means a hazard that is well controlled with the use of a control measure, such as an engineering control. Therefore, “control zone” is not the best terminology when it comes to controlling the hazard of falls from heights. To clarify the intent, “control zone” is replaced by “fall hazard zone system” in the final amendments, which requires that this system include both a physical area (a fall hazard zone) and a fall hazard zone monitor who has certain duties. Furthermore, the definition of a “fall hazard zone” is modified to better reflect the intent of the fall hazard zone system.

The final amendments also changed the minimum width of a fall hazard zone from 3 metres to 2 metres in order to harmonize with requirements from other jurisdictions in Canada.

However, the fall hazard zone system is only applicable to Part XII of the COHSR, but not to other federal OHS regulations, such as the Maritime Occupational Health and Safety Regulations.

Comment No. 3: The minimum total load capacity of an anchorage connector for a fall-restraint system

In the proposed amendments published in the Canada Gazette, Part I, the required minimum total load capacity of an anchorage connector for a fall-restraint system was set at 8 kilonewtons (kN). However, stakeholders raised the concern that this requirement is not consistent with the recommendation from the Part XII Working Group, in which the minimum total load capacities of 3.5 kN for a temporary fall-restraint anchorage connector and 17.8 kN for a permanent fall-restraint anchorage connector were recommended. They also pointed out that the CSA Group Standard Z259.17, Selection and use of active fall protection equipment and systems, which has been adopted by other jurisdictions in Canada, is similar to the Part XII Working Group’s recommendation: both differentiate the minimum total load capacity of an anchorage connector based on its permanence but the CSA Group Standard Z259.17 provides more flexibility.

Response No. 3: When developing the proposed amendments, the Labour Program held the view that 8 kN would be sufficient as the minimum total load capacity of an anchorage connector for a fall-restraint system, regardless of its permanence. However, with further consultations with industrial experts, it has become evident that the industry standard for a required minimum total load capacity of a temporary anchorage connector is significantly lower than that of the industry standard for a required minimum total load capacity of a permanent anchorage connector. Accordingly, the previously proposed 8 kN would be too strong to be suitable as a temporary anchorage connector, but too weak to be suitable as a permanent anchorage connector.

Therefore, in the final amendments, this requirement has been changed to reference to the CSA Group Standard Z259.17, which also aligns with the Part XII Working Group’s recommendation. As previously mentioned, CSA Group standards are developed and formally approved by technical committees, which are composed of employee and employer representatives, as well as federal and provincial government experts.

Comment No. 4: Accommodation to religious workers regarding wearing certain protection equipment

Representatives of the Sikhs community raised a concern that wearing certain head protection equipment could interfere with turban wearing Sikh’s religious beliefs and more should be done to accommodate their religious beliefs at the work place.

Response No. 4: Part II of the Code requires employers to ensure that employees use necessary personal protective equipment to protect their health and safety while at work. It is therefore the employers’ responsibility to assess all the hazards at work places, with the participation of the health and safety committee and, where there is a hazard, employers must protect employees and persons granted access to the work place from the hazard by following the hierarchy of control measures: eliminating the hazard, substituting the hazard for a less hazardous one, implementing engineering control measures, administratively controlling the hazard, and providing employees with personal protection equipment as the last resort. There are no exemptions to this occupational health and safety requirement.

In addition, federally regulated employers have a duty under the Canadian Human Right Act (CHRA) not to discriminate against employees on the basis of religion or other prohibited grounds, and must generally accommodate the needs of individuals or groups affected by occupational requirements up to the point of undue hardship (considering health, safety and cost). This accommodation could take the form of, for example, employers making reasonable adjustments to the work place, to procedures, or to activities based on employees’ specific needs.

The final amendments do not include a provision prescribing that employers provide accommodation to religious groups, something that it is already comprehensively addressed under the CHRA.

Notice of Intent in the Canada Gazette, Part I

Since the regulatory proposal was not finalized within 18 months of its publication in the Canada Gazette, Part I on March 18, 2017, a Notice of Intent was published in Canada Gazette, Part I on October 2, 2018, to inform the public of the Government’s intent to bring forward the final amendments in the spring of 2019.

Domestic and international coordination and cooperation

The amendments include updated or new references to standards from the CSA Group and from relevant industrial standard-setting bodies from United States of America. CSA Group standards were developed and formally approved by technical committees, composed of employee, employer representatives as well as federal and provincial government experts. The technical committees consider other international standards, before a standard is submitted to the Standards Council of Canada for approval as a National Standard of Canada.

The amendments provide new references to UL standards that were developed by using a single consensus body and publishing a single document for use in both Canada and the United States of America. The binational Standards Technical Panel serving as the consensus body for these efforts is comprised of key stakeholders from Canada and the United States of America, including the United States of America Coast Guard and Transport Canada, along with international participants. These amendments harmonize the standards used with other jurisdictions, namely the provinces and territories, as well as the United States of America that prescribe personal floatation devices.

The addition of the reference to the ANSI Standard Z89.1, American National Standard for Industrial Head Protection helps to harmonize the amendments with other jurisdictions, namely the provinces and territories, as well as the United States of America that prescribes CSA Group and ANSI approved industrial hard hats.

The amendments change the minimum height at which a fall-protection system is required to 3 metres or higher for fall-protection systems to harmonize with other jurisdictions in the country as they use 3 metres. Previously, Part XII of the COHSR required that fall-protection systems must be provided when employees are working at a height of 2.4 metres or higher from an unguarded structure, on a vehicle or a ladder. The amendments also change the required width of a fall hazard zone from 3 metres to 2 metres to align with other Canadian jurisdictions.

Regulatory Reconciliation and Cooperation Table (“RCT”)

The Regulatory Reconciliation and Cooperation Table (RCT) is a federal-provincial-territorial body established by the Canadian Free Trade Agreement (CFTA) to oversee the regulatory reconciliation process and promote regulatory cooperation across Canada. Once a barrier to trade has been identified, a government (federal, provincial or territorial) can submit the matter to the RCT for reconciliation, and then participating CFTA governments and their relevant regulators begin negotiations toward a reconciliation agreement.

In July 2018, four elements in Part XII of the COHSR, namely personal flotation devices (i.e. protection against drowning), and head, foot, eye and face protection, were added to the 2018–2019 RCT Work Plan. footnote 7 In addition, protection factors for respirators and fall protection have been identified for a future RCT Work Plan.

The reconciliation agreement expresses a desire to recognize common standards for OHS requirements across Canada. In this agreement, the federal, provincial and territorial Ministers agree to, where appropriate, recognize for use common OHS standards pertaining to personal protective equipment and first aid kit contents when they are required to be used by each party respectively in their jurisdiction. This equipment will be recognized across jurisdictions in order to remove barriers to operating between jurisdictions for workers and employers who operate between jurisdictions. A timeline for the implementation of these standards has been set in the agreement for November 30, 2019.

In the amendments, the following changes are made to implement the RCT agreement.

Protection against drowning

The amendments update the standards referenced for the use of life jackets to CGSB Standard 65.7, Life Jackets (in its 2007 version), and for personal flotation devices to the following standards: UL Standard 12402-5, Personal flotation devices — Part 5: Buoyancy aids (Level 50) and UL Standard 12402-9, Personal Flotation Devices — Part 9: Test Methods. UL has created a global network of scientific and advisory experts to develop various standards. UL is accredited by the Standards Council of Canada as a nationally recognized Standards Development Organization to develop National Standards of Canada. This change is in line with the RCT Work Plan in that where a personal flotation device or a life jacket is required by legislation or regulations the personal flotation device or life jacket labelled as approved by either Transport Canada or an agency approved by Transport Canada will be an accepted standard in all jurisdictions.

Eye and face protection

The amendments update the standard referenced for eye and face protection to use CSA Group Standard Z94.3, Eye and face protectors. This change is in line with the RCT Work Plan, which sets CSA Group Standard Z94.3 as the accepted standard for eye and face protection in all jurisdictions when it is required by legislation or regulation.

Protective headwear

The amendments update the standards referenced for head protection to use CSA Group Standard Z94.1, Industrial protective headwear — Performance, selection, care, and use, or ANSI Standard Z89.1, American National Standard for Industrial Head Protection. This change is in line with the RCT Work Plan, which sets CSA Group Standard Z94.1 as the accepted standard for protective headwear in all jurisdictions when it is required by legislation or regulation and provides harmonization with the United States of America by incorporating ANSI Standard Z89.1 as well.

Protective footwear

The amendments update the standard referenced for foot protection to use CSA Group Standard Z195, Protective footwear. This change is in line with the RCT Work Plan, which sets CSA Group Standard Z195 as the accepted standard for protective footwear in all jurisdictions when it is required by legislation or regulation.

Rationale

Part XII of the COHSR prescribes the use of safety materials, equipment, devices and clothing for employees and persons granted access to the work place. The use of these items is prescribed in cases where it is not reasonably practicable to eliminate or control a health or safety hazard. The amendments update references to Canadian and international standards, allowing them to reflect current technologies and safety practices required in the work place. In addition, implementing these changes will provide superior protection for employees using safety materials, equipment, devices and clothing. The amendments bring the technical requirements up to industry standards and make them more consistent with those of other Canadian jurisdictions.

The amendments provide the greatest overall benefit to stakeholders. Although most employers have voluntarily implemented the latest standards and references, the amendments facilitate implementation and provide certainty. The modernization of fall-protection systems was found to result in a significant resource impact. It is estimated that the amendments will reduce the rates of fall-related injuries and fatalities by 5.7% and result in an NPV of $14.6 million. Additionally, the amendments will reduce administrative burden for stakeholders by $5.9 million.

The amendments were developed following a thorough review by a working group comprised of representatives of employees and employers. On the basis of this review, it was decided to update and modernize the regulations to ensure that employees are using the most recent and appropriate safety material, equipment, devices, and clothing. This approach to OHS-related issues harmonizes the technical requirements with other parts of the COHSR, the Code and with other Canadian jurisdictions.

Implementation, enforcement and service standards

The working group, when reviewing Part XII, recommended the development of guidelines to accompany the amendments. The guidelines will serve as a complement to the amendments to explain the rationale behind the changes and ensure that employers and employees find ways of complying with the amendments (e.g. to explain the hierarchy of preventive measures when choosing a fall-protection system). Existing guidelines for fall protection in specialized environments will be modified to reflect the changes and will be ready for the coming into force of the amendments. Any additional guidelines will be developed once the Labour Program has insight into any areas troubling work place parties and will be released after the coming into force, to allow time for analysis.

Overall, the Labour Program’s compliance policy outlines the proactive and reactive activities used by delegated officials to ensure compliance. While OHS policy committees and work place committees are the primary mechanisms through which employers and employees work together to solve job-related health and safety problems, the employer remains ultimately responsible for work place health and safety. Delegated officials assist the industry in establishing and implementing policy committees and work place committees, and related programs.

The statutory powers of delegated officials allow them to enter work sites and perform various activities to enforce compliance with the Code and the amendments. For example, delegated officials may conduct safety audits and inspections. They may also investigate the circumstances surrounding the report of a contravention, work accident, refusal to work, or hazardous occurrence.

If non-compliance with the amendments are observed and are not resolved internally via policy committees, work place health and safety committees or health and safety representatives, enforcement actions toward the employer for non-compliance would be used by a delegated official. Enforcement actions may range from the issuance of a written notice to further steps such as the initiation of prosecution. Initially, an attempt to correct non-compliance with the amendments, when non-compliance does not represent a dangerous condition, is made through the issuance of an Assurance of Voluntary Compliance (AVC). An AVC is a written commitment that a contravention will be corrected within a specified time. Failure to complete the corrective actions specified in the AVC may lead the delegated officials to issue a direction. A direction is issued whenever a serious contravention or dangerous condition exists and when an AVC is not obtainable or has not been fulfilled. Failure to comply with a direction is a violation of the Code and as such is enforceable by prosecution. Offences can lead to imprisonment. The maximum penalty for offences is, on summary conviction, a fine of $1 million, or on conviction on indictment, imprisonment for up to two years and/or a fine of $1 million.

Contact

Erich Kahrer
Senior Policy Analyst
Occupational Health and Safety Policy Unit
Workplace Directorate
Labour Program
Employment and Social Development Canada
165 De l’Hôtel-de-Ville Street
Place du Portage, Phase II
Gatineau, Quebec
K1A 0J2
Telephone: 873‑396‑1093
Email: Erich.Kahrer@labour-travail.gc.ca