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The Latest in Employment Law: A Stewart McKelvey Newsletter – Amendments to the Occupational Health and Safety Act, SNS 1996, c 7

Mark Tector and Annie Gray

On April 26, 2017, the Government of Nova Scotia announced that amendments to the Occupational Health and Safety Act, which were passed in May of 2016, will officially come into force as of June 12, 2017.

Overview of the Amendments

These amendments have 2 key components that employers will need to be aware of:

1) Incident reporting – the amendments better define when, how, and what incidents must be reported. The highlights are as follows:

A) Triggering Injuries

The Director must be notified as soon as possible (but no later than 24 hours) after a workplace fire, flood or accident that causes:

• unconsciousness,
• a fracture of the skull, spine, pelvis, arm, leg, ankle, wrist or a major part of the hand or foot,
• loss or amputation of a leg, arm, hand, foot, finger or toe,
• a third degree burn to any part of the body,
• loss of sight in one or both eyes,
• asphyxiation or poisoning,
• any injury that requires the admission to hospital, or
• any injury that endangers the life,

of an employee, unless the injury can be treated by immediate first aid or medical treatment and the person can return to work the following day.

B) Triggering Events

Whether injury occurs or not, the Director must be notified as soon as possible (but no later than 24 hours) after:

• an accidental explosion,
• a major structural failure or collapse of a building or other structure,
• a major release of a hazardous substance, or
• a fall from a work area in circumstances where fall protection is required by the regulations,

2) Repeat offenders – the amendments give the Director additional authority over those who put people at risk of serious injury or death by repeatedly contravening safety requirements or failing to comply with Orders from the Division.

A) Threshold Conditions

The new powers set out below can only be exercised where the following conditions exist:

• A person has “repeatedly” (more than once in the last 3 years) contravened the Act or Regulations or failed to comply with an order made pursuant thereto;
• the contravention or failure posed a risk of serious injury (“injury that endangers life or causes permanent injury”)

B) Orders for Information

Where the Director has reasonable grounds for believing that a repeat offender may contravene the Act or regulations or fail to comply with an order thereunder in a similar manner in future, the Director may order that person to provide details regarding the nature and location of future work activities.

These orders for information expire 3 months after issuing but, so long as an order is renewed before its expiry, there is no limit on the number of renewals.

C) Broader Stop-Work Orders

Where an order is made to stop work or prevent access to a worksite and an officer has reasonable grounds for believing that the same or similar source of danger exists or will exist at another of the repeat offender’s workplaces, an officer may (subject to the Director’s approval) make an order:

• stopping work at another of the employer’s workplaces (or any part thereof);
• requiring that another of the employer’s workplaces be cleared of persons and isolated by barricades, fencing or other suitable means until the danger or hazard is removed; or
• prohibiting the employer from starting work at another workplace.

D) Injunctions

Where the Director has reasonable grounds for believing that a repeat offender is likely to contravene the Act or regulations or fail to comply with an order thereunder, the Director may apply the Supreme Court of Nova Scotia for an injunction to:

• restrain the person from committing or continuing the contravention;
• require the person to comply with the order;
• restrain the person from carrying on an industry or an activity for a specific period or until such time as a specific event occurs.

The full-text of Bill 165 can be found here.

What this Means for Employers

In terms of accident reporting, the range of incidents and injuries that require notification of the Director have been expanded, and the timeline for notification has been shortened to 24 hours from as much as 7 days under the current Act. However, the amendments have also removed any uncertainty resulting from the existing Act’s failure to define “serious injury”.

Regarding repeat offenders, while compliance with OHSA legislation and resulting orders has always been important, these changes raise the stakes for any compliance failures by extending the reach of the Division to other worksites and activities and the introducing the potential for ongoing disclosure requirements.

The foregoing is intended for general information only. If you have any questions about how this may affect your business, please contact a member of our Labour & Employment practice group.

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