Bringing contractors into the health and safety fold

Recent court decision means employers must include more than just their employees in health and safety planning

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

The health and safety of employees is an important consideration for employers — and it’s a win-win that benefits both workers and the employer.

But different types and sizes of employers can find some aspects of employee health and safety difficult to maintain and, if a recent Ontario court decision is any indication, it’s not going to get any easier.

Last month, the Ontario Court of Appeal released a decision that could impact small employers that use independent contractors who work off-site. The decision related to a company that distributes materials like sand and gravel to various customers. The company itself employed only 11 people and most of its distribution work was contracted out to independent truck drivers who owned and operated their own vehicles.

Since the company had such a small number of employees in its office, it was able to look after its employees’ health and safety issues directly without the formality of a joint health and safety committee (JHSC). The Ontario Occupational Health and Safety Act only required JHSCs for employers with 20 or more employees.

However, after an accident that seriously injured an independent truck driver while he was working for the company, the Ontario Ministry of Labour found the independent truck drivers — of which the company used between 30 and 140 at any one time — should be considered employees for the purposes of the JHSC requirement. After the case went through a couple of levels of appeals, the Ontario Court of Appeal agreed with the ministry.

On the surface, it seems like this decision could be a positive for safety — the independent contractors would be involved in the company’s health and safety committee and its initiatives.

But it could lead to logistical nightmares for the company and other similar employers. Independent contractors come and go and often, as in this case, their jobs take them to various locations away from the office. Is it too much to ask an employer to maintain a JHSC when many of the representatives work outside of the office and only actually work for the company on an irregular basis?

There likely would be an additional administrative burden on a company which may not be able to handle it. The company in this case had only 11 employees in its office, but was expected to organize a committee for as many as 150-plus people.

In its decision, the Ontario Court of Appeal acknowledged it would be difficult to maintain a JHSC when members are independent contractors who are on their own schedules and usually off-site. It seemed to shrug this off by pointing to the fact the company in this case had already done so after the initial ministry order. However, it may not be so doable for other companies in similar circumstances.

It’s reasonable for businesses to advise contractors doing work for them on proper health and safety practices and to take reasonable measures to ensure the safety of the work being assigned to those contractors. But is it practical to include them on committees and be involved in making company policies? How much of a burden should companies have to take on for the health and safety of independent contractors and how much of it should be the contractors’ responsibility?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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