Canadian Occupational Safety

May/June 2020

Canadian Occupational Safety (COS) magazine is the premier workplace health and safety publication in Canada. We cover a wide range of topics ranging from office to heavy industry, and from general safety management to specific workplace hazards.

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Page 16 of 35 17 retail buildings and in the health and transport sectors. EMPLOYERS' LEGAL OBLIGATIONS While occupational health and safety regulations do not specifically set out employers' obligations in relation to bed bugs in the workplace, the general duty provisions still apply, says Christopher W. Spasoff, founder and OHS lawyer at Edmonton-based F2 Legal Counsel. Under general OHS provisions and in all jurisdictions, an employer has an obligation to ensure the health and safety of its workers and to inform workers of the hazards present in the workplace. The employer is also obligated to eliminate or control the hazards at the work site or associated with the work. The fact that bed bugs can be regarded as a health and safety hazard is a result of a change in our understanding of what constitutes a hazard, he says. "What's really interesting is that, although you won't find bed bugs specifically referenced in the legislation, in recent years, the legislation has says. "There is truly a psychological impact to some folks. It's the ick factor." WORKERS AT RISK Bed bugs usually make their way into a workplace by being carried in on furniture, handbags, clothing and luggage. They are often found in hotels, hostels and apartment and condo buildings, as well as furniture stores, especially those that have a high number of returns. Bed bug infestations also occur in temporary work sites. "In Alberta, we have a lot of camps for our oilsands or other utility workers, and in Ontario, there's temporary housing up north for hydro and some of the mining," says Catherine Jevic, owner at Edmonton-based All-Safe HSE. Because the bugs infest soft-surface materials, workers who are required to handle bedding, clothing or furniture — especially used furniture — are more likely to come in contact with them. And, of course, because they stay in hotels, people who travel for work are also at increased risk of exposure. Bugs are easily picked up in hotels and transferred back to the workplace or to home. "In a hotel, people will sit and lounge on the bed while they're watching television. They lay their clothing out on the bed. The clothing then ends up back in the suitcase. And, depending on how bad the infestation is, if the person uses the dressers and other furniture in the room, then the bed bugs can infest their belongings that way as well," Jevic says. Bed bugs can crawl up through walls and down hallways. They can easily go out one door and into other rooms or units within a building. They often enter rooms through holes, such as electrical outlets. Not surprisingly, they have recently started appearing in office and "It's important that employers approach such work refusals… in accordance with the work refusal process that is provided for under their respective occupational health and safety legislation." Christopher W. Spasoff, founder and OHS lawyer at F2 Legal Counsel expanded beyond the notion of just physical health to include things like the psychological health, welfare and social well-being of workers. Whereas in the past an employer might have been able to argue that bed bugs were more of a nuisance than a danger and that their obligations were, therefore, limited, the counter argument is now a lot more compelling," says Spasoff. Whenever an employer has information that may affect a worker's health and safety, it is obligated to share that information with workers, whether it concerns a hazard or potential hazards, the steps taken to eliminate or control those hazards or the practices and procedures needed to deal with the hazards, he says. An employer should never ignore the situation or try to keep it from workers. "At a minimum, where bed bugs are identified in the course of a hazard assessment, I would expect an employer to communicate the potential risks that bed bugs, and any potential treatments, might pose to workers and the steps that the employer and workers will need to take in respect of [the bed bugs] in terms of both prevention and elimination," says Spasoff. If, when an infestation is discovered, some employees refuse to work, an employer must first determine whether the work refusal is valid. Work refusal provisions of OHS legislation across the country differ in the language they use to refer to what can trigger a valid refusal. In some jurisdictions, such as in Alberta, the provisions are still relatively new and open to interpretation, Spasoff says. As a result, what may constitute a legitimate work refusal in one province may not do so in another. An employer will need to look at the circumstances of the situation and the language of the applicable provision to determine whether the refusal is valid. Above all, says Spasoff, employers must assess every work refusal fairly and with an open mind. "It's important that employers approach such work refusals not from the standpoint of their own temperament or preconceived notions of the hazard or dangerous condition in question but in accordance with the work refusal process that is provided for under their respective occupational health and safety legislation. Whether the refusal is ultimately found to have been legitimate will turn on both the facts in issue and language of the provision in question," Spasoff says. Employers that ignore evidence of a bed bug infestation and fail to tell workers about it may be liable to a penalty, he adds. Most likely, an order — such as a non-compliance order or stop work order — would be issued. An administrative penalty (a fine) could also be issued, depending on the severity of

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