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Legal Notes: Time to reboot worksite health and safety protocols

John Bleasby
Legal Notes: Time to reboot worksite health and safety protocols

Despite everyone’s best hopes, COVID-19 did not disappear this past summer.

Yes, new cases declined significantly for a time, but now they are back, and in large numbers. Fortunately, construction is not yet in the crosshairs of any mandated shutdowns. It’s important that the industry keep it that way.

Much has been learned about the spread of the virus since early 2020. Last month, the Centers for Disease Control (CDC) updated guidelines regarding the airborne spread, something that was not even a major point of discussion when the virus broke out in February.

Although most easily transferred person-to-person through close contact, the CDC now advises that, “There is evidence that under certain conditions, people with COVID-19 seem to have infected others who were more than six feet away. These transmissions occurred within enclosed spaces that had inadequate ventilation.”

Furthermore, the CDC says that, “small droplets and particles can linger in the air for minutes to hours. These viruses may be able to infect people who are further than six feet away from the person who is infected or after that person has left the space.”

Outdoor construction offers some measure of improved protection. However, as work moves indoors this winter to areas not always well-ventilated, contractors need to take a new look at existing protections put in place for their workers and required by law, measures that might have become lax over the summer months.

Lauren Ditschun and Meghan Fougere of Norton Rose Fulbright Canada LLP write employers and constructors would be wise to give careful consideration to higher level protection processes for both workers and subcontractors that extend beyond all normally required health and safety measures on the jobsite.

These include a reassessment of site transmission risks and implementing screening and reporting procedures for anyone who may have been exposed to COVID-19. Hand-washing and sanitizing facilities and additional PPE such as masks should be provided. Workers should use their own tools where possible and sanitize any that must be shared.

Control of the worksite environment must extend beyond procedures for site employees. Individuals making deliveries also need to be recorded and monitored, and their contact with site workers minimized. Specific drop-off areas and material disinfecting protocols, as appropriate, should be established as well.

Access for visitors should require advance notice, thus giving site supervisors and workers time to prepare. Assessment questionnaires covering recent travel and any recent symptoms or exposures to COVID must be recorded, with access refused if any concerns arise.

Who pays for these extra measures?

“While general contractors typically have the ultimate responsibility to ensure site safety, they are not necessarily the ones left holding the whole bag,” say Ditschun and Fougere. “Indeed, contractors incurring additional costs related to safety may, in some cases, manage these contractually. This can be facilitated through change provisions and any associated notice requirements, and/or by contractually flowing obligations to protect against danger and hazards.”

In addition to posting and distributing detailed health and safety policies to anyone who might be on site, employees must be reminded of their own individual responsibilities as well, should they become uncertain about their work environment.

As a recent ruling by the Workers’ Compensation Board of British Columbia confirms, simply refusing to show up to work does not constitute a valid exercise of the right to refuse unsafe work. Depending on the process specific to each province, there is normally a required reporting procedure that triggers an investigation by the employer, possibly resulting in a determination by a provincial workplace safety official.

Although some of the enhanced measures described here are not currently mandated by government decree, they soon could be.

Ditschun and Fougere therefore say, “owners and contractors alike would be wise to consider their existing contracts, specifically where any financial responsibility lies in respect of health and safety measures on the jobsite, and how to plan and budget for future projects in light of the new normal.”


John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to

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