Contractors and COVID-19: How Far Must We (and Can We) Go to Meet OHS Obligations?
Much has been published in the last few weeks about the obligations of employers under the Occupational Health and Safety Act, SA 2017, c O-2.1 [OHSA] to ensure that work sites are safe and healthy (and we’ll have more to come about the obligation of employers to protect psychological health and safety during these uncertain times). However, it should not be overlooked that contractors and prime contractors at construction sites have their own obligations under OHSA as well.
Potential exposure to COVID-19 at a work site is a “hazard” under the OHSA. The novel coronavirus that causes COVID-19 is contagious and exposure to someone showing symptoms may be dangerous to the health and safety of workers and other people.
On construction and oil and gas sites, prime contractors are required to make sure that hazards are controlled, and bear responsibility for doing so. The OHSA requires that prime contractors take reasonably practicable steps to:
- Ensure that OHS obligations are met at the work site;
- Oversee work and take steps to ensure that nobody is exposed to hazards connected to work site activities;
- Coordinate the health and safety programs of different parties a at the work site; and
- Inform people on a work site of existing or potential hazards at the work site.
Depending on the nature of the work site, prime contractors may have to take steps to implement and enforce engineering or administrative controls to limit exposure to COVID-19. Best practices for controlling the spread of COVID-19 are changing as more is understood about the virus, and prime contractors should make sure to stay up to speed on what is recommended. Updates from the Chief Medical Officer of Health can be located here.
Contractors other than the prime contractor, under section 9 of the OHSA, must take reasonably practicable steps to ensure that work sites and work processes under the control of the contractor do not create risks to the health and safety of any person. Everybody on a construction site is responsible for taking steps to limit the risk posed by COVID-19.
There are many questions about COVID-19 that remain unanswered by our health authorities and OHS regulators. Currently in the United States, workers can be subject to temperature checks, compelled to describe their symptoms when calling in sick, and made to bring in a doctor's note before returning to work, even after a common cold. It is not known whether these kinds of steps could be taken in Alberta.
If it is not reasonably practicable to both comply with public health guidance and safely carry on work at the construction site, prime contractors (where they are in place) and other employers and contractors (if there is no prime contractor) must consider whether work should be carried on at all. This could be due to social distancing requirements, lack of clarity from regulators about what steps (such as mandatory temperature checks) are permissible, reductions in the number of healthy workers available, or other reasons.
Despite the labour and contractual consequences of a work stoppage, failing to ensure the health and safety of workers and others at work sites can result in OHS enforcement (among other forms of enforcement currently being considered by the Province and municipalities). If you have questions about how to navigate complex OHS obligations in light of COVID-19, Field Law would be pleased to assist.