Construction employers reopening jobsites are under a legal obligation to draw up a new set of workplace safety policies to deal with the threat of COVID-19, a leading Ontario construction health and safety lawyer warned participants during a League of Champions webinar recently.
Norm Keith, a senior partner at Toronto’s Fasken Martineau DuMoulin LLP, offered a legal perspective to the construction sector restart as part of a May 21 session titled Re-Mobilizing: Are you Ready?
“In opening up, you’ve got to really have an organized system,” said Keith.
“Do you have a policy in written form that deals with COVID-19? If not, the law requires you to.
“That requirement is clearly a legal requirement, no doubt about that.”
From an occupational health and safety perspective, Keith stressed, dealing with COVID-19 is a serious challenge and needs to be viewed through the lens of the safety professional undertaking a comprehensive hazard assessment.
You will be viewed, and scrutinized, probably at a higher level of legal compliance than ever before,
— Norm Keith
Fasken Martineau DuMoulin LLP
Keith presented 12 steps for construction employers to follow as they prepare their workforce and workplaces to resume work following the recent removal of sectoral restraints by the provincial government. He recommends employers: establish a planning task force; prepare a set of goals and methodologies; determine the legal framework and compliance; undertake policy and program preparation; prepare the workplace, and prepare the workforce; ensure third parties are prepared; get ready for the first day back in the workplace; ensure adequate communication, supervision and enforcement; plan to respond to complaints; prepare to manage and report health issues; and plan to review, respond and repeat.
“You need to keep your eye on the fact that you will be viewed, and scrutinized, probably at a higher level of legal compliance than ever before,” said Keith, noting that the Ministry of Labour has beefed up its roster of inspectors and that employment standards inspectors have also been making the rounds on construction worksites.
Old health and safety protocols will not serve as a due diligence defence against COVID-related charges under the Occupational Health and Safety Act, he explained — specific new rules dealing with the new workplace hazards must be developed and implemented.
And the standards must be construction-specific to be compliant, manufacturing or mining protocols developed to deal with COVID-19 will not do.
Due diligence as a legal defence requires not only that a program has been developed but it must be embedded as part of a health and safety management system, Keith said. And the process starts in the corner office.
“You need proper authorization or tone from the top,” Keith remarked. “You need to have a planning committee for reengagement during COVID-19 that truly has authority from the president or the CEO,” along with management support for a budget.
The goals must be two-pronged, Keith said. The first is to establish a high level of commitment to making safety a top priority; then the second is to aim to achieve maximum business recovery without compromising goal number one.
“If you keep that as two key goals and execute on them well, then all of the squabbling and the uncertainty, ‘what are the new rules, what are the old rules,’ that are going to come up, you will be able to reset that like a compass, focusing on true north.”
Employers need to develop an organized methodology for how they are going deal with all issues and questions that come up, Keith said.
It’s essential to undertake a complete hazard assessment of the workplace before the workers arrive. Assess hazards from every point of view, from points of entry to pinch points and everything else onsite.
But these tasks must be done meticulously and without haste, said Keith.
“The challenge is to do it when you are in a hurry to get going,” he remarked.
In the end, Keith said, an essential part of proving due diligence is documenting all plans and practices and continue to do so even when the workers are back onsite.
“The hallmark of a due diligence defence is a managed system,” he said.
Follow the author on Twitter @DonWall_DCN.