In our previous blog, we have discussed the changes introduced in the Working for Workers Act, 2022 (“Bill 88”). As of April 11, 2022, Bill 88 has been enacted and we have monitored updates regarding the implementation of any new requirements for employees and employers.
Specifically, the Ontario Occupational Health and Safety Act (OHSA) has recently been amended through Regulation 559/22 (the “Regulation”) to address the risk of opioid overdoses in the workplace.
As of June 1, 2023, all Ontario employers who know, or ought to know, that there is a risk of an opioid overdose in their workplace, are required to ensure that, whenever workers are in the workplace, a naloxone kit is made available in good condition.
This blog post will outline the specific requirements in the new Regulation.
What is Naloxone?
Naloxone is a drug which can be administered via injection or spray to temporarily reverse the effects of an opioid overdose.
Naloxone is only effective in cases of opioid overdose (morphine, oxycodone, fentanyl, heroine, etc.) and is not effective in cases of overdose related to other classes of drugs.
Which employers are required to have available Naloxone kits?
The OHSA Regulation requires employers to provide a naloxone Kit if they are aware of (or reasonably should be aware of) all the following circumstances:
- There is a risk of a worker opioid overdose
Employers must evaluate whether there is a reasonable risk of overdose. The Ontario government has provided guidance for employers to evaluate whether such a risk exists. For example, a risk may exist in the following cases:
- A worker has disclosed the use of opioids
- Paraphernalia found in the workplace
- Opioid overdose has occurred in the past
- The employer observes opioid use in the workplace
- There is a risk that the worker will overdose while in the workplace
If there is a risk of overdose outside the workplace (i.e., on vacation, weekend, etc.) the employer is not required to have a naloxone kit in the workplace under the regulation.
- The overdose risk is posed by a worker who works for that specific employer
Employers are only required to have a naloxone kit if there is a risk of overdose related to a worker employed by the employer. If the risk is posed by a worker employed by another employer, there is no requirement under the regulation to have a naloxone kit available.
However, if only one of the above situations are occurring, the employer is not required to have a naloxone kit.
Naloxone Kit Requirements and Maintenance
If an employer meets the above criteria and is required to comply with the regulation, they must ensure that they have at least one (1) naloxone kit in the location where the risk is present.
Maintenance
The OHSA regulation further requires employers to ensure that Naloxone kits are properly maintained and effectively stored. This includes the following:
- Storing the naloxone kit at the correct temperature (as outlined by the manufacturer instructions);
- Keeping the contents of the naloxone kit in a hard case;
- Ensuring that the kits are used only once and replaced following use; and
- That the naloxone kits are not expired.
Employers should note the specific requirements on the naloxone kit as maintenance instructions may vary.
Training and Administration
Employers who are required under the Regulation to have naloxone kits in the workplace must also ensure that a worker (or multiple workers) have been assigned the responsibility of overseeing the naloxone kits.
These workers must also receive training in relation to recognizing opioid overdoses, administering naloxone, and understanding the related risks associated with naloxone.
The employer must ensure that they clearly post the names and working locations of the workers who have received naloxone training and that the naloxone kit(s) is nearby if necessary.
Penalties of Non-Compliance
In addition to the Regulation regarding naloxone kits, the OHSA has also been amended to increase the potential fines for non-compliance with the OHSA.
As of July 1, 2022, the penalty for a finding of non-compliance with the OHSA is up to $500,000 for an individual/supervisor and up to $1.5 million for a corporation, director, or officer of a corporation, per offence, along with a potential penalty of up to twelve (12) months incarceration for individuals, directors, or officers.
Takeaways for Employers
In advance of June 1, 2023, employers should consider performing a preliminary review of the risks in the workplace in order to determine if they meet the criteria under the Regulation.
If an employer is required to have a naloxone kit in the workplace, they may be able to obtain naloxone kits and free training for up to two (2) workers through Ontario’s Workplace Naloxone Program. Employers should contact the Canadian Red Cross or St. John’s Ambulance to gain access to these resources.
Further, this regulation may serve as a reminder to employers to stay up to date with their obligation to maintain a safe, health, and inclusive workplace. If you are an employee with concerns about the safety in your workplace or an employer with questions about compliance, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or here.