Quick Hits

• The Working for Workers Five Act, 2024 amended the Occupational Health and Safety Act’s (OHSA) definition of “industrial establishment” to exclude any office in a private residence.
• However, this does not mean the OHSA does not apply to private residences. The Working for Workers Five Act, 2024 also amended the OHSA to apply to telework “performed in or about a private residence.”
• Simply put, the OHSA applies to telework in private residences, but the OHSA Regulation on industrial establishments does not.
• The legislature’s likely intention with these amendments is to ensure that employers are still protecting employees working from home, but employees do not need to follow rules and regulations meant for traditional work facilities.

Telework and the OHSA

The Working for Workers Five Act, 2024 amended the Occupational Health and Safety Act (OHSA), section 3 Private residences, by adding subclause (1.1). Section 3 now states,

3 (1) Except as is prescribed and subject to the conditions and limitations prescribed, this Act does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.

(1.1) Despite subsection (1), this Act applies to telework performed in or about a private residence or the lands and appurtenances used in connection therewith.

The Ontario courts have previously stated that the plain meaning of section 3(1) exempts already constructed and occupied single-family residences from the OHSA. Furthermore, the Ontario courts have stated that it would be unreasonable to conclude that homeowners who wish to conduct maintenance on their home would have to discharge the obligations set out in the OHSA, or to expose private homeowners to government inspectors and the possibility of fines and imprisonment as set out in the statute.

Due to subsection 3(1.1), the OHSA now formally applies to employees who telework and employers with employees who telework.

“Telework” is currently undefined in the OHSA. The Canadian Centre for Occupational Health and Safety (CCOHS) has defined telework as a “voluntary arrangement” where employees “request to work somewhere other than at the designated worksite.”

In 2002, the European Trade Union Confederation signed a Framework Agreement on Telework, which defined telework as “a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis.”

While these definitions have differences and are not binding legal norms, they provide persuasive support for the view that telework is work done for an employer away from the employer’s premises.

Thus, employers with teleworking employees have duties to those employees under the OHSA. Subclause 25(2)(h) of the OHSA states that employers shall take every reasonable precaution in the circumstances for the protection of a worker.

As the interpretation of this change is still not settled by the courts, employers can be proactive in fulfilling their duties to teleworking employees by implementing the following options, which are not exhaustive:

• Having employees sign a health and safety telework agreement
• Providing employees with a teleworking policy and home safety checklist
• Educating employees on ergonomics in their home offices
• Ensuring employees have access to management or supervisors to report health and safety issues or incidents
• Having a plan for investigating incidents outside the employer’s premises

‘Industrial Establishment’ Under the OHSA

The Working for Workers Five Act, 2024 amended the definition of “Industrial Establishment” in the OHSA to include the following italicized portion,

“industrial establishment” means an office building, factory, arena, shop or office, other than an office located in a private residence, and any land, buildings and structures appertaining thereto.

This term is not used throughout the OHSA but plays a significant role in the OHSA Regulation, R.R.O. 1990, Reg. 851: Industrial Establishments (Reg. 851).

Reg. 851 governs the following in industrial establishments:

• Safety regulations. Reg. 851 provides rules for employers on the condition of floors, clearances between moving machinery and machine guarding, protective equipment, lighting, molten material, and logging.
• Building codes. The Building Code applies to access to exits; exits from a floor area; structural adequacy; washrooms; service rooms; the fire-resistance rating of a separation for an access to an exit, service room, and a process room that contains a flammable substance; and the fire protection rating of a closure.
• Industrial hygiene. The regulation stipulates what an employer is required to provide employees who work with, or are likely to be exposed to, hazardous biological or chemical agent that could cause injury to the eye or skin.

Under the Working for Workers Five Act, 2024, these requirements will not apply to a remote employee’s private residence.

Impact of These Changes

With the change to section 3 and definition of “industrial establishment” in the OHSA, the legislature’s likely intention is to exempt remote employees from following the OHSA rules and regulations for their homes but does not exempt an employer from protecting its employees who are working off-site. This is demonstrated by the Working for Workers Five Act, 2024 also amending the definition of “workplace harassment” to include virtual harassment.