February 2, 2022
Questions and Answers
The Occupational Health and Safety (OHS) Committee has developed the following questions and answers in order to provide departments/agencies, bargaining agents and employees with information on the application of the newly released Occupational Health and Safety Directive, Uniforms Directive and First Aid to the General Public – Allowance for Employees.
Occupational Health and Safety Directive
Q1. The NJC OHS Directive includes a specific definition of “qualified person”; how is this different than the definition found in Part II of the Canada Labour Code?
A1. In the Directive, a “qualified person” refers to a person who, because of his or her knowledge, training and experience, is licensed or otherwise qualified to perform that duty safely and properly. This enhances the Canada Labour Code definition by incorporating the requirement to be licensed to perform a specific duty related to a trade that is recognized by the provinces or territories.
Q2. The NJC OHS Directive includes a specific definition of “appropriate standard’’; how is this different than the definition found in Part II of the Canada Labour Code?
A2. The concept of “appropriate standard” is frequently used in the OHS Directive and is defined as a means, a standard or standards, as amended from time to time, to the extent that the most recent standard provides the highest level of safety.
It is important to note that if more than one standard meets this criterion, the appropriate standard needs to be selected using a hierarchy of precedence as listed in the OHS Directive.
Q3. Very few specific requirements deal with thermal comfort for office environments in Part II of the Canada Labour Code and its regulations. Has the NJC OHS Directive been updated to offer improved requirements of acceptable environmental conditions for office spaces in the workplace?
A3. Section 2.2. of the Permanent Structures and Safe Occupancy of the Workplace (Use and Occupancy of Buildings) of the OHS Directive includes updated requirements found in section 2.2 - Environmental Conditions for Office Space.
Subsection 2.2.2 now states:
In office accommodations, air (dry bulb) temperatures during working hours should be maintained within the ideal temperature range of 20oC to 26oC range. Temperatures between 17oC and 20oC and above 26oC can be uncomfortable, and occupancy should not exceed one hour daily or 40 hours annually in each of these extremes. Temperatures above 26oC are deemed uncomfortable when the humidex reading (Appendix A) at a given temperature equals 40oC or less. It is recognized that temperatures between 30oC to 39oC represent significant discomfort; temperatures between 40oC to 45oC represent great discomfort and exertion should be avoided; temperatures above 45oC are dangerous; and temperatures above 54oC provide a situation where a heat stroke is imminent.
Q4. Are boilers and pressure vessels under Federal or Provincial/Territorial jurisdiction? What responsibilities are there to ensure their safe operation?
A4. The operating authority is under Federal jurisdiction. Further to this, every operating authority or owner of a boiler, pressure vessel, piping system, monitoring system or plant shall ensure that these are maintained in safe working condition and operated safely, as regulated by the provincial or territorial authority covered in section 5.2. In fact, all boilers, pressure vessels, piping system and monitoring systems require a safe operating certificate, updated every year, with full inspection and carbon monoxide reading before and after clearly displayed and issued by the appropriate federal, provincial or territorial authority.
Moreover, the operating authority shall ensure that the provincial or territorial inspection agency has access to all plans and specifications relating to a new installation or major repair of a, boiler, pressure vessel, piping system or monitoring system or any fired vessel in which gas or vapour may be generated or a gas, vapour or liquid may be put under pressure by heating. Subject to this section, no boiler, pressure vessel, piping system or monitoring system shall be operated or used following its installation or a major repair until the boiler, pressure vessel, piping system, or monitoring system has been inspected and certified by the provincial or territorial inspection agency (section 5.10 of the COHSR [http://laws-lois.justice.gc.ca/eng/regulations/SOR-86-304/page-16.html#h-51]).
Please refer to the NJC OHS Directive and the COHSR in their entirety for all relevant requirements (subsection 5.1.1).
Q5. Are Gender Inclusive washrooms required?
A5. While gender neutral washrooms are not required, the Employer is required to endeavour to make at least one gender inclusive washroom, clearly indicated with appropriate gender-inclusive signage, in each building with the aim of having multi-stall gender inclusive toilets available (subsection 8.3.1).
Q6. Pesticides are used at my workplace; do I have a right to know what they are using and how would I find out about any possible health implications or safety measures?
A6. As workers have a right to know about hazards in their workplace, simply ask your Employer and the Employer will provide all SDS and/or other manufacturer literature, in addition, this information should be readily accessible in paper and electronic copy, available in the workplace and followed (subsection 9.2.1). Each department in which pesticides are used, handled, stored or disposed of shall ensure that the pesticide label directions, Safety Data Sheet (SDS) and any relevant legislation on pesticide use (federal, provincial/territorial or municipal) are followed, including but not limited to municipal and/or provincial/territorial by-laws restricting the cosmetic use of pesticide. For overlapping legislation, the most restrictive is to be adhered to.
Q7. Policies and procedures are developed centrally, but some of them aren’t very practicable at my worksite; can we develop additional procedures specific to my worksite?
A7. Absolutely. Additional safety enhancement procedures which are specific to a worksite may be developed; however, any policies and procedures that are specific to the Employer and worksite will be developed in consultation with the policy and workplace committees (subsection 12.1.1).
Q8. In the context of a pandemic (such as COVID-19), are surgical masks and non-surgical masks considered PPE?
A8. Yes and no. A surgical mask is not de facto PPE, as each type of mask is designed for a specific purpose. Respirators such as N95 will protect the wearer against exposure to airborne particles, including viruses and are considered PPE. Surgical and non-surgical masks are not PPEs they act has a barrier to spreading droplets and spit and non-medical masks help limit the spread of droplets and spit when you sneeze or cough. These are considered additional control measures used to mitigate a hazard.
Q9. An employee became ill in the workplace and had to be transported to the hospital by ambulance. Should the employee claim the ambulance expenses through the Public Service Health Care Plan?
A9. No. Regardless of whether the illness or injury was work-related, the Employer will ensure that, if required, the employee will be escorted to the medical facility and the Employer will pay the transportation costs directly. Under no circumstance should the employee be required to pay and eventually seek reimbursement for the expenses (subsection 17.2.1).
Q10. Most people are now working from home. How many first aid attendants are required in my building, when there are only, on a daily average, a dozen employees on each floor?
A10. It will depend on the total number of employees in the building/workplace. The Directive requires at least one first aid attendant when there are five or more employees in the workplace. You will need to add one more attendant for every additional 50 employees. For example, in a building or workplace where there are 146 employees on site, you will require at least three first aid attendants on site. With employees working from home, ensure a sufficient number of trained attendants are readily available (subsection 17.3.3).
Q11. The right to refuse dangerous work in section 128 of the Canada Labour Code does not have the same requirement as the NJC OHS Directive which additionally requires that if an employee has exercised their right of refusal to work, the Employer shall not assign any other employee to use or operate the machine or object, to work in that place or to perform the activity, until the Minister of Labour has been notified of a continued refusal. Is this a separate process, or is it integrated into a single process under section 128? What are the steps of a refusal to work?
A11. The right to refuse dangerous work process in section 128 of the Code is enhanced by the NJC OHS Directive; however, it is not a separate process instead the NJC OHS Directive enhancement is incorporated into a single process (subsection 18.1.1).
Work Refusal Process:
- When an employee has a “reasonable cause to believe there is a danger” the employee may refuse to work under the Canada Labour Code, Part II.
- In order to do this, the employee must notify their employer of the refusal and the safety reasons for the refusal. Remember, if an employee has exercised their right of refusal to work, the employer shall not assign any other employee to use or operate the machine or object, to work in that place or to perform the activity, until the Minister of Labour has been notified of a continued refusal.
- The employer must then investigate in the employee’s presence unless they decline to participate.
- Then the employer is obligated to provide the employee with a written report of their investigation findings. If the employee agrees with the conclusions, the employee may return to work. However, if the employee disagrees, the employee may continue to refuse to work.
- If the employee continues to refuse, the employer is obligated to notify the Health and Safety Representative, or Committee so that they may participate in the second stage of the investigation process. Again, the employee may participate in this investigation if the employee chooses.
Remember (NJC OHS Directive 18.1.1) - if an employee has exercised their right of refusal to work, the employer shall not assign any other employee to use or operate the machine or object, to work in that place or to perform the activity, until the Minister of Labour has been notified of a continued refusal. - After the joint investigation is completed, the employer is again obligated to provide the employee with a written copy of the results. If the employee agrees with the conclusions, the employee may return to work. However, if the employee disagrees, the employee may continue to refuse to work.
- If the employee continues to refuse, the employer is obligated to notify the Minister of Labour who will decide whether to investigate. If there is an investigation, by a delegate of the Minister, the employee has a right to participate in that investigation if the employee chooses.
- The Minister must issue a written decision to the employer and the employee considering three options: “danger”, “no danger” or “no right to refuse” based on the fact that these are normal conditions of employment or the refusal puts the life of someone else in danger.
- Any decisions of “danger” or “no danger” can be appealed to the Canada Industrial Relations Board (CIRB) within 10 days. Any directions resulting from the investigation can be appealed to the CIRB within 30 days.
Q12. Are regional health and safety committees policy committees?
A12. Section 134.1(3) allows for the establishment of more than one policy committee. The mandate of the committee should be clearly outlined in their Terms of Reference and approved by the national policy committee.
Uniforms Directive
Q1. What factors does the Employer have to take into consideration when determining the type of clothing to be provided?
A1. The following factors must be taken into consideration, including but not limited to the following:
- Corporate and personal identification items such as shoulder flashes, shall be consistent with the requirements of the Treasury Board Secretariat’s Policy on Communications and Federal Identity (subsection 1.1.5).
- To determine that the type clothing provided is adequate and suitable including considerations for cleaning, maternity clothing, tailoring, material used, etc. [paragraph 1.1.3(d)].
- To ensure fabrics selected for protection meet good industrial safety practices, and fabrics selected for uniforms meet the PSPC criteria, considering, but not limited to, flame resistance, etc. [paragraph 1.3.1(c)].
- Departments may specify that the footwear be a type generally considered as acceptable and to co-ordinate with the uniforms provided (subsection 2.1.3).
Q2. Who does the department have to consult with regarding uniforms?
A2. The department must consult with the Treasury Board for approval to change the design of a uniform, as it is the President of the Treasury Board who has delegated authority to approve exceptions to the Directive. The introduction of new uniforms, or changes to a present departmental uniform policy, shall be subject to Treasury Board authorization. The department should also consult with their joint committee on uniforms, or in the absence of a specific joint committee, the policy committee or, if there is no policy committee, the workplace committee or the health and safety representative (paragraph 1.1.3(b)), as well as the employee representatives at the local, regional or national level, as appropriate (subsection 1.2.1). Public Services and Procurement Canada (PSPC) provides clothing advisory services through the Clothing Advisory Group. Part XII of the OHS Directive, should also be reviewed when the clothing serves for both identification and personal protection (See Purpose and Scope).
Q3. Who is responsible for cleaning uniforms issued by the Employer?
A3. Uniforms that require dry-cleaning shall only be selected when easy-care uniforms are clearly unsuitable, the Clothing Advisor agrees, and the employee representative has been fully informed. If the Employer requires employees to have, wear and maintain a dress uniform (i.e. ceremonial clothing or number 1 dress) that can only be dry-cleaned, the Employer must ensure full payment of the cleaning cost (subsection 3.1.3).
Q4. Does the Employer have to accommodate an employees’ request to use an alternate fabric or cleaning product?
A4. In events where employees have allergies to the fabric and/or cleaning products, the Employer will consider alternatives to the uniform and will accommodate any request from employees. Any request for accommodation to the uniform will not be denied unless it can be demonstrated that it will impose an undue hardship on the Employer (subsection 3.1.6).
Q5. Where a name tag is to be worn, does the person have to be identified by their full name?
A5. Where the employees’ full name(s) or surname(s) represents a security issue and eventual workplace violence hazard that may follow them outside the workplace, departments shall jointly determine through the consultations defined at Part II of the Directive, the use of alternate forms of identification such as, but not limited to: a badge number, nickname or first name only.
First Aid to the General Public – Allowance for Employees
Q1. What is the meant by the term “general public”?
A1. The general public is defined as individuals forming the bulk or major part of the public excluding anyone with whom the employee has a working relationship in a formal or informal capacity because of the department’s mandate, mission or legislated requirements. For greater certainty, “general public” does not include co-workers, colleagues, managers, subordinates, or individuals detained in any enforcement capacity.