Be Safe News – August 2017
The Accessibility for Ontarians with Disabilities Act (AODA) and You: Why it Matters to You and Your Business
Written by Jennifer Miller | Curriculum Development Coordinator
In 2005, The Ontario Public Service (OPS) enacted the Accessibility for Ontarians with Disabilities Act (AODA). Their goal is to create an accessible Ontario for everybody. The AODA aims to improve accessibility standards and provide opportunities for all people to participate in all aspects of life.
Enforced by the Ministry of Community and Social Services, employers are obligated to follow AODA. Contraventions of the Act can be very costly to employers, in the form of both fines and lost revenues. Corporate penalties for non-compliance to the AODA can reach a maximum of $100,000 per day. Yes — per day. This is in addition to a potential loss of revenue.
The AODA by The Numbers
Ignoring the AODA is not just costly if you get caught. It is estimated that by 2031 the aging population and the disabled population together will represent 536 billion dollars in income in Canada. They will spend 9.6 billion dollars on retail and 1.6 billion on tourism. Does your business want a cut of that revenue? Without accessibility for all Ontarians, it will be impossible for people with disabilities to patronize inaccessible establishments, resulting in lost revenue potentially in the billions.
It is estimated that 360,000 businesses in Ontario are expected to be in compliance with the AODA. These businesses need to meet the needs of everyone in the population in order to attract spending power. If you think that online shopping is a cure-all for accessibility, remember that there are AODA guidelines for websites as well, to increase readability for the blind or seeing impaired, subtitled videos for the deaf, specific font sizes for those with diminished reading ability, etc.
The AODA is about more than physical accessibility, although that is a big piece! AODA includes customer service standards, an attitude shift, changes to how information is communicated, organizational changes, accessible physical and architectural structures, and special allowances for support people and animals.
Historic Abuse of People with Disabilities in Ontario
An unnamed Ontario employer made a very costly error when they chose to ignore the AODA. The employer was known to employ up to ten individuals at any given time that had intellectual disabilities. These individuals performed tasks similar to employees without intellectual disabilities. The only difference? The employer paid the workers with intellectual disabilities $1.25 per hour, while they paid the rest of the staff minimum wage or above.
In 1999, Mary Schmidt* was hired at the rate of $1.25 per hour. She has an intellectual disability. Mary was pleased to be working, felt very productive and proud of the work she was doing and looked forward to work every day. She was so happy with her job, in fact, that she worked for ten years for the employer. Her guardian was aware of the wage disparity but assumed it was legal since the employer was known to frequently hire people with intellectual disabilities. It wasn’t until Mary was let go suddenly, without cause, after ten years of loyal service that her guardian started questioning the practices of the employer.
Originally concerned with being wrongfully terminated, Mary and her guardian obtained council. It was during a meeting with them that Mary and her guardian realized that Mary’s pay rate was illegal. Although the AODA was contravened, Mary’s employer was actually charged with violating the Ontario Human Rights Code, an even more serious offence. They had to pay Mary $142,000 in back wages, $19,000 for the wrong termination, and $25,000 for injury to her feelings, dignity, and self-respect.
Trying to get a “deal” on the wages of a person with an intellectual disability ended up costing this employer dearly. The owner of the business was forced to file personal bankruptcy. Unfortunately, despite winning her ruling, Mary hasn’t fared well since. She has been unable to obtain steady employment since losing her job, a common problem among intellectually disabled adults. While AODA aims to improve the outlook for the 66,000 unemployed intellectually disabled adults in Ontario, there is still progress that needs to be made.
A New Standard in Customer Service
An Ontario restaurateur was found guilty of not accommodating a customer diagnosed with Obsessive Compulsive Disorder with germaphobia; under the AODA, disability includes mental health diagnoses. The complainant frequented an establishment where he was given special accommodation, including being seated in a specific booth each time, having the booth wiped while he watched and before he sat down, and having his water served with no lemon or straw. Staff were happy to accommodate him and did so until new management took over. It was then that the new manager called the complainant “high maintenance” and told him that “he knows why police shoot crazy people like you.”
The complainant in the case was awarded $12,000 because the restaurant owner failed to act in accordance with AODA, which stipulates that reasonable efforts must be made to accommodate in a manner that respects dignity and independence.
The AODA and Customer Service Excellence
The AODA highlights ways in which customer service standards can be changed in order to better serve adults with disabilities in Ontario. Below are just a few of the recommendations made in the AODA:
- Never touch or handle assistive devices without permission
- Never move a person in a wheelchair without permission
- If you do have permission to move a wheelchair, place it in a dignified position (not facing a wall, not in an awkward area, etc.)
- Allow service animals
- Never interact with service animals
- Speak directly to the customer – not the support worker or translator
- If you are unsure of the best way to communicate – ask!
The AODA Training
The AODA has been implemented in sequential phases across the province, starting in 2005 with an end-date of 2025. Employers must make adjustments both to their customer service standards and also to the workplace, in order to accommodate any disabled Ontarian who may be employed (now or later) by the establishment.
All employees and volunteers, no matter paid or unpaid must have completed training on the AODA. There are many online training resources available in order to learn more about the AODA, how it affects your business, and how you can accommodate clients. OSG provides online AODA training for employers to ensure their workplaces are up to date. Implementing policies and procedures which provide accessible goods and services to customers will increase customer satisfaction and essentially provide an accessible workplace for employees.
The province of Ontario has a goal to be fully accessible by 2025. Of the 360,000 businesses expected to adhere to the AODA, yours can’t afford not to make the changes necessary to accommodate all Ontarians. The AODA benefits everybody by creating a safe, healthy, and accessible province for all.
The OHSA and Strict Liability Offences
Written by Tushar Anandasagar | Associate Lawyer at LeClair and Associates
In Ontario (Ministry of Labour) v Cobra Float Services Inc, 2017 ONCJ 388 (CanLII) (“Cobra”), a decision by the Ontario Superior Court of Justice, an Ontario construction employer faced significant charges after an employee was fatally injured at one of its construction sites. The worker involved was crushed when a “curb machine” flipped over while it was being off-loaded from a trailer. The Ministry of Labour (“MOL”) charged the employer for breaching the OHSA, alleging that the curb machine was “moved at a project in a manner that endangered a worker”.
There were no eyewitnesses and no video footage of the incident. Video footage from elsewhere on the job site appeared to show that the trailer towing the curb machine was at the appropriate height and that the curb machine was securely affixed to the trailer. The defendant employer took the position that there was insufficient evidence to prove the charge against the employer, suggesting that the Crown could not prove that the employer “caused” the accident to occur.
According to the employer, the Court was left in the position of having to “speculate …whether the [accident was] the result of mechanical failure, and/or human error”. Without that causal link, the employer alleged, the Court could not hold the company liable for breaching the OHSA.
The employer filed what is known as a “motion for a directed verdict of acquittal”, also referred to as a “motion for a non-suit”. These motions are quite common in criminal courts, and can significantly benefit a defendant in circumstances where it is clear that the Crown has insufficient evidence to prove the required elements of a criminal offence.
Despite the Crown’s apparent lack of evidence regarding “causality”, the Court dismissed the employer’s motion for a non-suit. The Court reminded the employer that offences under the OHSA continue to be considered “strict liability” offences, as opposed to criminal offences.
By contrast to charges under the OHSA, criminal charges require “proof beyond a reasonable doubt” that the accused/defendant has:
a) engaged in behaviour that contravenes the Criminal Code (also referred to as the actus reus); and
b) that the accused had the intent to engage in criminal behaviour (also referred to as the mens rea).
In the criminal context, if the Crown fails to prove both the actus reus and the mens rea components of an offence, the charge(s) against the defendant will be dismissed.
By contrast to the criminal context, the Crown need only prove that an alleged breach of the OHSA has occurred, beyond a reasonable doubt, in order to justify a finding of guilt against an employer. In other words, strict liability offences under the OHSA only require the Crown to prove that there has been an “act” (or actus reus) which contravenes the statute.
Turning back to Cobra, the simple fact that an employee of the defendant had been fatally injured on the employer’s job site was enough to justify the MOL’s charge against the defendant. As a result, the employer’s motion for a non-suit was dismissed.
An employer’s only defence to a strict liability charge is to prove, on a balance of probabilities (i.e. it is more probable than not), that the employer took every reasonable precaution in the circumstances to prevent the occurrence of the accident.
At a minimum, proving due diligence will require compliance with applicable OHSA regulations which apply to the employer’s workplace operations. Other factors which may assist an employer to prove due diligence include:
- Diligent and proactive management (i.e. the presence of an involved “Directing Mind” of the Organization/Corporation);
- The presence of a comprehensive, OHSA compliant health and safety policies;
- The presence of competent, well trained supervisory staff;
- The use of a certified third-party health and safety specialist/consultant;
- The presence of certified JHSC and/or Health and Safety Representative members, as required by the OHSA;
- Proper, documented site inspections;
- Up to date WHMIS documentation and training;
- Compliance with all OHSA Regulations applicable to the employer’s specific industry sector; and
- Ensuring up to date training on all equipment.
Returning once again to Cobra, it stands to reason that the employer’s strategy going forward will be to claim that it exercised due diligence to ensure that the curb machine was suitably maintained, locked out, that all employees were trained on appropriate procedures, and that all applicable procedures regarding safe transportation and unloading were followed.
Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance. For further information, please contact Tushar by email at email@example.com.
Racking: How do you stack up?
Written by Jeff Thorne | Manager of Training and Consulting
Does this sound familiar; “we have no room for anything in here, we are running out of space, this place is a mess.” Lack of storage and improper storage of material is a common problem a lot of organization’s face in the industry today. Storage and pallet racks can help in answering the age-old question of “where are we going to put this?”
With that being said, mismanagement of racking can lead to safety concerns.
Without the proper planning and design, moving material on and off racking systems by hand, or with the use of lifting devices such as a pallet or lift truck, can place workers at risk. An injury may occur due to poorly stacked or falling material, slips, and trips, overreaching, or struck by other lifting devices. The racking itself can create additional risks as well. When racking has not been inspected, or maintained, if it’s modified or damaged, the racking has the potential to become unstable or collapse resulting in catastrophic consequences.
Employers across Canada have a general legal responsibility to provide equipment in good condition and ensure the safe storage and handling of materials. Storage racks, whether they are cantilever, drive in or drive through, or push back racks, must be properly designed, installed, used and maintained.
Some provinces such as Ontario require a PSR (Pre-Start Health and Safety Review) to be conducted if the employer does not have documentation supporting the fact that the racking has been designed and tested in accordance with current applicable standards. This can become an issue if your racks were purchased as a used item. A PSR may be necessary to ensure the rack is installed correctly and can support the weight exposed to it.
In British Columbia, modifications to regulations will come into force as of January 1st, 2018 that clarify and outline safety requirements for steel storage racks loaded by mobile equipment or a lifting device. Racks that are loaded manually, and are under 8 feet have an exemption in the new regulations. The changes and clarity provided in the new regulations in B.C should be practiced by every employer. The requirements focus on making sure that storage racking is designed and constructed with good engineering practice, and can safely support the items.
Employers need to treat storage racking like any other equipment or device used in the workplace. Employer’s need to include details on how to effectively manage all aspect of selection, installation, capacity, use, inspection, reporting, modification, repair, and dismantling.
Here are some key aspects to consider that will help to improve safety around racking:
Specific training is important. Instructions must be provided for the safe loading, unloading, and maintenance of the racking, and the instructions must be readily available to the workers.
When it comes to installing the racks, the person performing this task must be qualified to do so. Failure to have a qualified party perform this task can lead to collapse. The qualified person should have knowledge of proper planning, inspection principles, hazards, mobile equipment and specific details of the rack design. This includes items such as the maximum allowable product load per level, number of levels, vertical spacing, components, wear and tear, and when to consult the manufacturer or a professional engineer.
The rated capacity of the rack must be clearly posted on the rack or in the general vicinity of the rack, and workers must know the capacity. They should also know the capacity of the loads being placed on the rack. Employers must ensure that parts are maintained and replaced as needed. Workers must be aware of what constitutes damage or wear and tear.
One of the most important aspects of preventative maintenance is frequent inspections. Regular inspections must be conducted by a qualified person. The frequency should be at intervals that would prevent unsafe conditions. This frequency may be governed by the racks location (indoor or outdoor), competency of lifting device operators, prior damage to the racks, level, and method of rack use. Employers must ensure racks are regularly maintained and damaged or worn parts are replaced based on what is outlined by the manufacturer.
Racking systems often get overlooked and the structural integrity is taken for granted. Damage may not get reported, and parties inspecting the racks may not have the required competencies to do so. This can be a recipe for disaster, so make sure storage racks get the attention they require, if not, what goes up may come down.
What You Need to Know About Blood Borne Diseases in the Workplace: Part 1 of 2
Written by Jenna Kressler | Curriculum Developer
When we hear the words hepatitis or HIV we may cringe or even get a little scared. Images of injection drug abusers may come to mind or we may have thoughts of contracting it sexually from an infected person. We would probably even freak out knowing we had to handle infectious blood or came in contact with an infected person.
Individuals living with a blood borne infectious disease face a lot of stigma and discrimination in society based on their perceived health status. Not only do individuals have a challenging time living and managing their disease in their personal lives, but also face obstacles in the workplace.
What are Blood Borne Diseases?
Blood borne diseases are infectious microorganisms in human blood and can cause disease in humans. Hepatitis B virus (HBV), hepatitis C virus (HCV), and human immunodeficiency virus (HIV) are the most common pathogens. Hepatitis B is a viral infection that attacks the liver and can cause both acute and chronic disease. Hepatitis C is a liver disease which can cause acute and chronic hepatitis, which can lead to cirrhosis (liver scarring), liver failure, and liver cancer. HIV targets the immune system and weakens the body’s ability to fight off other infections and illnesses.
How are Blood Borne Diseases Transmitted?
HBV, HCV, and HIV can be transmitted through:
- Saliva (dental procedures)
- Fetal and joint fluid
- Sexual encounters
- Mucous membranes: eyes, nose, mouth
Hepatitis B virus can survive in a dried state on surfaces at room temperature for over a week, whereas hepatitis C has no reliable data about the survival time in an exposed environment, and HIV becomes inactive when exposed to air
In the workplace, such as laboratory or clinic, transmission is most likely to occur due to accidental puncture from contaminated needles, broken glass, or other sharp objects; contact between broken or damaged skin and infected bodily fluids; or contact between mucous membranes and infected bodily fluids.
For example, if someone infected with HBV cut their finger on a piece of glass, and then you accidentally cut yourself on the same infected piece of glass, there is a possibility that you could contract Hepatitis B.
Unbroken skin is an effective physical barrier against blood borne pathogens. However, infected blood can enter your system through open sores and blisters, cuts, abrasions, acne, and sunburns, but it is extremely rare for HIV to be transmitted by broken skin and wounds. From 1981 and 2006, 57 cases and 140 possible cases of HIV transmission to U.S. healthcare workers were documents. Of the 57 cases, 48 were associated with a puncture or cut injury.
Blood borne diseases are NOT transmitted by:
- Coughing, sneezing
- Touching or shaking hands
- Hugging or kissing
- Insects or pets
- Sharing food, drinks, utensil
- Toilet seats
Who is at Occupational Risk?
Blood borne diseases are not an occupational concern unless workers come into contact with blood in the workplace. The most common occupations that are at high risk of exposure are:
- Healthcare workers
- Laboratory workers
- Emergency responders
- Correctional facility officers
- Dental workers
- Tattoo artists
Employers must train employees who are at risk and ensure training covers: symptoms, transmission, and control measures to minimize exposure.
Disclosure in the Workplace
Individuals who have a blood borne disease have the right to privacy with a few exceptions. HBV, HCV, and HIV are not transmitted through typical day-to-day contact, so employees do not have to disclose their status to their employer or union unless your job could put others at risk of coming in contact with your blood. Individuals with blood borne diseases have the right to decide when, how, to what extent and to whom they will disclose their personal information.
However, blood borne diseases are considered a disability, so individuals with a positive status may need to discuss with their human resources department or manager about managing symptoms while at work (modified work schedule, time off for appointments, workspace accommodations), or to claim medical benefits. Employers must maintain the maximum degree of privacy and confidentiality when handling and keeping medical information, in addition to employment records and files. Medical information should be kept separate from employee files. Employees with a positive status still do not need to completely disclose their condition, but generally, state they have a health condition that requires modifications to their daily lifestyle. This information should only be given to the person(s) who needs to know the information.
Employers may request a doctor’s note. The note only needs to state that accommodations are needed to maintain health and to fulfill essential job tasks. Employers cannot probe for further details on the underlying medical condition. Further medical documentation may be required depending on the job. Individuals may request to send documents directly to the insurer or provide a sealed envelope to HR. An employer who fails to properly safeguard personal information about an employee may infringe the Code.
Remember, if you have a positive blood borne disease status you have legal rights and obligations. Employers must follow and abide by Canadian law (AODA) when accommodating employees with a disability. Stay tuned for Part 2 of What You Need to Know About Blood Borne Diseases in the Workplace!
BE A LEADER
Glen Hughes and Scott Wilkinson
Written by Jennifer Miller | Curriculum Development Coordinator
At OSG, all of our staff are Health and Safety Leaders. This month, we are featuring two outstanding leaders: Glen Hughes and Scott Wilkinson
OSG has had the pleasure of having Glen on their team for three and a half years. He has two decades of experience in the health and safety and consulting field. Glen has been involved with the Ministry of Labour as a professional consultant and witness. He was also an integral member of the Ministry of Labour team tasked with making recommendations with respect to lifting devices. Glen earned his Certificate in Health, Safety, and Environmental Processes (CHSEP) in 2015 from the University of Fredericton. He also has a CHSC (Certified Health and Safety Consultant) designation from the CSSE (Canadian Society of Safety Engineering). Glen has a great deal of experience as an owner/operator of a heavy lifting equipment business, which has garnered him a great deal of recognition in the field. When he isn’t delivering one of OSG’s many training courses, Glen enjoys surfing.
“Always perform pre-operational checks before operating heavy equipment.”
Scott Wilkinson joined the OSG team three and a half years ago in the role of Financial Controller. In the months following, Scott was also given management over the Operations Department, keeping him ever busy ever since! Scott performs many accounting, finance, and operations functions, but he is most celebrated and revered in the office for his most important task: paying the staff! Scott is future-minded, with a professional goal of putting more energy toward OSG’s future success planning rather than thinking in the moment. Around the office, Scott is known for being approachable, a great listener, and always bringing leftovers for lunch. He recently built a home and developed a passion for the home-building process. Outside of work he participates in a variety of sports, coaches, and is an avid traveler. In under ten years, Scott has been to 13 countries, all but one province in Canada, and 31 of the 50 states in America. He hopes to cross a few more locations of his travel wish list in the near future!
“When in doubt, ask!”
Next time you are in OSG’s London office, say hello to Glen or Scott. They are OSG Safety Leaders who embody safety culture in the workplace.
Accessibility for Ontarians with Disabilities Act (AODA)
Written by Sharon Thornton | Sales Manager
The Accessibility for Ontarians with Disabilities Act, or AODA, aims to identify, remove, and prevent barriers for people with disabilities. The AODA is made up of five parts, or Standards, and deadlines for compliance began as of January 1, 2010.
When exploring the Customer Service Accessibility Standard we will take a look at the requirements necessary to achieve compliance. Requirements include:
- Establishing policies, practices, and procedures on the provision of goods and services to people with disabilities
- Ensuring that those policies practices and procedures are consistent with certain core principles in the AODA, namely the principles of independence, dignity, integration, and equality of opportunity
- Establishing policies on allowing disabled people to use personal assistive devices to be accompanied by a support person or guide dog or other service animals
- Communicating with disabled persons in a manner that takes into account their disability
- Providing advance notice to the public when there is going to be a temporary disruption in services or facilities used by persons with disabilities
- Establishing a process for people to provide feedback, including a complaints mechanism, and make information about the feedback process readily available to the public
- Make policies and procedures available to the public upon request
- Training on how to interact and communicate with persons with various types of disabilities
An Accessible Ontario by 2025
Ontario is the first Canadian Province to pass a law to improve accessibility in the areas that impact the daily lives of people with disabilities. Learn more about our AODA Training course now!
Health & Safety in the News
Researched by Jeff Thorne | Manager of Training and Consulting
Ministry of Labour Blitzes
Researched by Jeff Thorne | Manager of Training and Consulting
Health care sector enforcement initiative – Health & Safety – Healthcare
September 1, 2017 – March 31, 2018
Residential projects – Health & Safety – Construction
September 1, 2017 – November 30, 2017
Falls (ladder safety) – Health & Safety – Construction
October 2, 2017 – November 24, 2017
Falls (including slips and trips) – Health & Safety – Healthcare
October 2, 2017 – November 24, 2017
Upcoming Health & Safety Events
Provided by Nick Hollinger | Marketing & Communications Manager
Southwestern Ontario 2017 PIP Conference & Trade Show
The 2017 Southwestern Ontario Partners in Prevention Conference & Trade Show is taking place at Bingemans Conference Centre in Kitchener on October 25th, 2017. Connect with local health and safety experts and better your workplace.
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