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This program has been accredited by the Law Society of Upper Canada towards the professional development requirement for certification.

Labour Law             5 hours

The provincial government’s Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, is in force as of June 2010, with immediate impact on Ontario’s workplaces. Lancaster’s panel of experts will provide an overview and assessment of how this legislation has been implemented in workplaces and what lessons can be taken from the early experiences of employers and employees in dealing with harassment and violence under this new regime. Topics to be discussed include:

• New Obligations: What new duties do employees and employers have, with respect to violence and harassment, under Ontario’s health and safety legislation? Does Bill 168 affect staffing levels set by the employer?
• Implementation: What challenges have employers experienced in implementing Bill 168 and what lessons should be taken from these experiences? What are some examples of innovative and proactive ways that employers have prepared their workplaces to comply with the new legislation? Should employers create a new position to coordinate workplace violence and harassment? How are unions participating in the effective implementation of this legislation?
• Enforcement: What enforcement procedures are contained in the Act respecting violence and harassment? Do the amendments create any new remedies? What approach is the Ministry of Labour taking to enforcement? Is the focus more likely to be collaborative – working with high-risk businesses/organizations, asking to see policies and providing guidance – or punitive?
• Human Rights Issues: When can a worker who is harassed take action under both human rights and occupational health and safety legislation? Where both systems are used, is it likely that both processes will proceed at the same time? How well does the new legislation balance employee safety and privacy concerns?
• Other Provinces: What lessons can employers and unions learn from experiences with violence and harassment provisions in health and safety legislation in other provinces? Have arbitrators in those jurisdictions awarded remedies for employers’ failures to comply with the violence and harassment clauses in occupational health and safety legislation?
• Domestic Violence: How are the domestic violence obligations under the Act being applied? What level of knowledge must an employer have in order to be responsible for protecting an employee from domestic violence? Does the employer have an obligation to do a risk assessment of domestic violence? What information is an employer entitled to request? What should an employer do if the employee refuses to provide information? Are other employees required to report knowledge of domestic violence to their employer?

BREAK
10:15 a.m. to 10:30 a.m.

On December 24, 2009, five workers were repairing balconies at a high-rise building in Etobicoke when the scaffolding they were standing on suddenly broke apart, causing the men to fall 13 storeys to the ground. Four of these workers died at the scene, while another survived with severe injuries. It soon came to light that the Ministry of Labour had twice previously halted work at the same construction site due to safety concerns.

The Ministry of Labour has since launched prosecutions against the two companies that operated and supplied the construction equipment and has also charged three individual executives and supervisors at these companies. The sole survivor of the accident is suing the companies and the Ministry of Labour for damages.

In January 2010, in response to concerns about workplace health and safety in Ontario, Minister of Labour Peter Fonseca announced a sweeping review of Ontario's workplace safety system. He appointed Tony Dean, a respected professor at the School of Public Policy and Governance at the University of Toronto and former head of the Ontario Public Service, to lead the review with the help of a panel comprised of safety experts from labour and employer groups and academic institutions.

The mandate of the Expert Advisory Panel on Occupational Health and Safety is reviewing the operation of the province's health and safety system; assessing how well it is working; and recommending improvements. The panel is looking at a range of issues including the underground economy and vulnerable workers; entry-level safety training; and whether current legislation serves worker safety. The report of this panel will affect health and safety at all workplaces in Ontario and have a direct impact on all employers, unions and employees in the province.

The panel, assisted by its staff, is currently meeting with unions, employers and health and safety professionals in cross-province public hearings. Responses to its consultation paper have already been received from over 100 individuals and groups.

Researchers from the Institute of Work & Health have also provided support to the panel by comparing Ontario's system with other jurisdictions, and Mr. Dean has established working groups to review and summarize consultation advice and research on key areas of the review. He plans to submit his report and recommendations to the Minister of Labour in December 2010.

During this exclusive lunchtime event, hosted by Lancaster House, Mr. Dean and several other members of the Expert Advisory Panel will discuss what they have learned during the research and consultation phases of the review. They will also field questions and comments from the audience. Make sure you take this opportunity to stay abreast of unfolding developments by registering now for this important event.

Health and safety requirements can sometimes create barriers for individuals with disabilities. When can a health and safety requirement be waived, and by whom? How should employers determine the significance of the health and safety risks posed by the employment of a person with a disability? In this session, Lancaster's panel of experts will address these and the following issues relating to health and safety aspects of the duty to accommodate:

• Undue Hardship: What weight do arbitrators give to health and safety considerations when determining undue hardship? In addition to the employee, whose health and safety should be considered (other employees, customers, the general public etc.)?
• Voluntary Assumption of Risk: Can an employee willingly assume a safety risk inherent in an accommodated position? What are the obligations on employers in these situations?
• Immediate and Long-Term Risk: Is there a difference in terms of an employer's obligations when dealing with an employee for whom a work function presents an immediate risk versus an employee who has a condition that makes it a bad idea, over the longterm, for him or her to perform that function? It is known that certain repetitive tasks can lead to injury – for example, carpal tunnel syndrome – in the long term. If one worker becomes injured from performing a repetitive task, is it permissible to reassign this same task to another employee?
• Drug and Alcohol Testing: What is a "safety-sensitive position"? Is random alcohol testing permissible for employees in safety-sensitive positions? What about random drug testing? Pre-employment drug and alcohol testing? Does it matter whether the workplace is unionized or non-unionized? When can employees be required to disclose present or past drug or alcohol dependency or abuse? Is testing in the context of rehabilitation and return to work permissible where the worker has been off work due to drug or alcohol dependency? What does the recent policy on alcohol and drug testing of the Canadian Human Rights Commission provide and how does it differ from the policies of provincial human rights commissions?
• Prescription Drugs: Some doctor-prescribed drugs also impair cognitive ability. What entitlement do employers have to information about pharmaceutical drug use by workers?
• Pregnancy: What health and safety issues may arise in relation to the accommodation of a woman who is pregnant?
• Access to Medical Information: When can employers request an independent medical opinion based on safety concerns? Can there ever be implied waiver of privacy over medical information? What rules govern disclosure of an employee's medical information before a hearing?
• Privacy: When will safety concerns justify the use of surveillance cameras? What are the employer's responsibilities under privacy legislation when implementing or expanding a surveillance system? Can footage from such cameras be used for disciplinary purposes?
• Demographic Changes: What are the implications of the elimination of mandatory retirement for safety concerns in the workplace? Can safety concerns justify mandatory retirement clauses? How can employers accommodate older workers in safety-sensitive positions? Can employers ask older workers for medical information? For test results?

One of the most powerful tools available to employees to ensure their safety in the workplace is the right to refuse to perform work in the face of a dangerous work situation, without fear of reprisal. But what kind of hazard must be present in order to trigger this protection? Lancaster's panel of experts will clarify the roles and responsibilities of employees, employers, unions and health and safety inspectors when a refusal occurs by addressing the following questions:

• Who May Refuse Work?: Which workers are subject to statutory limits on their right to refuse? What is the nature of these restrictions? How can these workers ensure that they are not put at undue risk due to safety hazards in their workplace? May supervisors refuse unsafe work?
• Right to Refuse Procedure: What are the investigative steps? What tests are applied at each of these investigative steps and how do they vary? Who should participate in the initial investigation of a work refusal by the employer? What are acceptable and unacceptable methods of evidence collection by health and safety officers? Does an employee have the right to sue a health and safety inspector for a negligent investigation?
• Assessing the Legitimacy of Refusals: When is a refusal legitimate? How can legitimate work refusals be differentiated from situations in which workers use refusals as an illegal strike? What degree of likelihood that a work condition will lead to injury will be required to justify a work refusal?
• What is a Danger?: Must it be immediate? How are the attributes and sensitivities of a worker to be assessed and determined and who is responsible for doing so? Is the assessment based on the "average" worker or the attributes and sensitivities of the worker in question?
• "Human Hazards": What people-created hazards have been recognized as dangerous conditions that can give rise to employee health and safety concerns? Sexual harassment? Abusive behaviour of co-workers? Presence of a hostile customer? Can the manner in which a worker performs his or her duties constitute a "danger" for the purposes of health and safety legislation? When will stress be a hazardous condition? What does Bill 168 say about work refusals in the face of violence and harassment?
• Joint Health and Safety Committees: What are the responsibilities of a joint health and safety committee in the context of a work refusal?
• Reprisals: What protection is provided to an employee who may be a victim of a reprisal? How clearly must an employee express concern about a health and safety issue in order to engage the statutory protection from reprisal? Will a board ever impute to an employer knowledge of an employee's health and safety concerns? Can being snubbed by management constitute a reprisal within the meaning of the legislation? Can the threat of discipline not actually imposed constitute an illegal reprisal for refusal to work?
• Procedural Issues: When should a board exercise its discretion to inquire into a complaint of a reprisal? When will a board defer consideration of a work reprisal for reasons that it would be more appropriately dealt with in another forum, such as in a proceeding under the Human Rights Code or through the grievance process?