Occupational Health and Safety Act Requirement
Employers have many obligations under the Ontario Occupational Health and Safety Act (the “OHSA” or the “Act”). There is one essential component of the Act that creates confusion among small business owners. It is the requirement that a health and safety representative must be appointed in workplaces where the number of workers “regularly exceeds” 5 but is less than 20. In particular, small business owners struggle with understanding whether their business needs to comply with this requirement. However, before sorting through this in detail, it is necessary to explain what a health and safety representative is, and their role within a business.
The Role of a Health and Safety Representative
Under the OHSA, workers select the health and safety representative. A health and safety representative has specific ongoing duties under the act, including:
- conducting regular workplace safety inspections
- making recommendations to management regarding health and safety matters
- investigating workplace accidents
Put simply, a health and safety representative advocates for the health and safety interests of workers within a workplace.
What is The Confusion?
Recall that in Ontario, businesses must appoint a health and safety representative any workplace where the number of workers “regularly exceeds” 5 but is less than 20. Therefore, according to the Act, a health and safety representative is not mandatory for a business that regularly employs less than 5 workers. A workplace that has 20 or more employees must have a joint health and safety committee in place, as opposed to a health and safety representative. However, the OSHA does not clearly define the term “regularly exceeds”. This leads to the following questions:
- What does this mean for seasonal businesses who have a fluctuating number of employees?
- Is a seasonal business required to use an averaging formula, and if so, what kinds of formulas are acceptable?
- What sorts of employment arrangements are considered “regular” under section 8(1)?
The Recommended Practice
When a client encounters the hurdles discussed above, I recommend that they act cautiously. This is because health and safety laws are remedial in nature, and therefore the courts interpret them very broadly. Small businesses with less than 20 employees should, as a best practice, install a health and safety representative. It will encourage safe work habits and enhance a business’s performance. Although a health and safety representative is not mandatory in a workplace with under 5 workers, section 8(2) of the OHSA states an inspector can order a business to appoint one if they determine it’s necessary.