By Daniel Standing LL.B., Editor, HRinfodesk
Sometimes just doing enough is insufficient. In a nutshell, this was the decision of the Ontario Labour Relations Board in Liquor Control Board of Ontario v Ontario Public Service Employees Union, 2021 CanLII 15607 (ON LRB) when it ruled on the employer’s measures in combatting COVID-19, which were deemed insufficient by a health and safety investigator.
In mid-December 2020, an inspector visited a liquor warehouse facility in London, Ontario, and noticed that the employees were not sufficiently physically distanced in the lunchroom. The inspector issued a compliance order to the Liquor Control Board of Ontario. The case came before the Board as an application for the suspension of the order. The LCBO argued that the inspector’s definition of and requirement for physical distancing in the lunchroom was unreasonable and exceeded the recommendations of the public health authorities.
Prior to the order, many security measures were in place at the LCBO. For example, each table occupant was separated by plexiglass barriers, employees had access to the lunchroom at staggered times, employees could not loiter and had to wear face masks if not consuming food or beverages. The LCBO also had a COVID-19 safety plan in place and took other measures to prevent the transmission of the virus in the workplace, including the use of signage, health screening protocols, enhanced cleaning and sanitization.
Frustrated by the lack of direction in the order as to how to achieve compliance with physical distancing, the LCBO designed and implemented changes to comply with the order. It reduced the number of seats in the lunchroom, created two additional lunchrooms and ensured that signs clearly stated room capacity and the requirements for physical distancing as well as mask and face shield wearing.
The union took a different view, submitting that the employees’ health and safety would be significantly jeopardized if the order was suspended. It argued that the lack of serious prejudice to the LCBO and the serious risk of transmission of the virus meant that the LCBO did not have a strong case.
The Board’s decision
Board member C. Michael Mitchell began his analysis by citing s.25(2)(h) of the Occupational Health and Safety Act which requires employers to “take every precaution reasonable in the circumstances for the protection of the worker.” Case law on this provision shows that its purpose is not to eliminate all hazards, but to take reasonable precautions to protect workers from hazards. The Act requires a balancing of the risk of harm, with the ability to carry out necessary public and private functions. Various factors may be relevant, including the potential cost of precautions, the effect on efficiency, the severity and magnitude of the risk, and the likelihood or frequency of the risk.
COVID-19 is a new virus, making it hard to do an informed contextual analysis of the risk it presents. This is where the precautionary principle comes in. As several courts have noted, “This principle applies where health and safety are threatened even if it cannot be established with scientific certainty that there is a cause and effect relationship between the activity and the harm. The entire point is to take precautions against the as yet unknown.”
The Board accepted that COVID-19 presents an unprecedented public health and safety risk to workers. Given that the LCBO called the reasonableness of the order into question, the Board’s task in deciding whether to suspend the order was to take note of s.25(2)(h) in giving effect to the precautionary principle. The Board stated that it would take greater caution in suspending an order if the risk to workers and occupants of a workplace is high. For this reason, it declined to suspend the order and deferred to the observations and conclusions of the officer, who was physically present at the lunchroom.
The Board stated that even assuming the LCBO implemented precautions that exceeded public health standards, those standards may not prevent an employer from implementing other reasonable standards. Sometimes circumstances may be such that workers require greater protection than the measures set out in recommendations, statutes or regulations. Undoing the measures that the employer put in place following the order would, according to the Board, collectively and individually increase the hazard of the virus spreading. The employer was not seriously prejudiced by the measures it put in place under the order; it was merely inconvenienced. In light of all of the above, and given the fact that mutations of the virus have cropped up in Ontario and in other provinces, the Board upheld the order.
All provincial occupational health and safety legislation contains a similar provision to the one from Ontario at the centre of this case. Taking “every precaution that is reasonable in the circumstances” means using due diligence, and keeping in mind that a certain amount of risk may be inherent and unavoidable. The employer is not expected to enforce a standard of perfection.
After reading this decision, employers may think twice before challenging an order made under occupational health and safety legislation in the context of COVID-19. If this case is an indication of a broader stance on the matter, boards and arbitrators will likely be reluctant to overturn safety-related orders unless they are clearly beyond the realm of the reasonable.