May 16, 2012

Where does labour law stand on ladder safety?

The Ontario Ministry of Labour recently issued a new position paper on the use of ladders in construction, and workplace safety experts warn employers need to train their workers and assess their sites for risk.

“As long as there’s been ladders in construction, there have been accidents in large part due to misuse,” said Bruce Bolduc, owner of Construction Workplace Safety Training Ltd., at a recent seminar north of Toronto for construction firms.

Bolduc went through the position paper in minute detail, noting the paper itself is not a new law or regulation.

“They have simply clarified their position on existing regulations,” Bolduc said of Ontario’s labour ministry. “It doesn’t mean you can’t use ladders in construction.”

But apparently the word didn’t initially get down to all provincial labour inspectors. Bolduc said in January, the day after the paper was published, a labour inspector showed up at one home construction site and said “you could no longer use ladders in construction.”

Although the law doesn’t prohibit ladders, the position paper does specify when safe scaffolds must be used and the safety requirements for ladder use.

“They have literally thrown it all on to your shoulders as employers that if you are making the decision to allow ladder use, then you have to follow a certain protocol,” he said.

“The choice to use a ladder cannot be based on speed or ease of production. It has to be based on safety.”

It also specifies training requirements, though Bolduc said training could include toolbox talks and does not always have to be in the classroom.

When assessing the use of a ladder, it is not enough to ensure a worker has fall protection in place or to assess the severity of injury in the event of a fall, said Karen Fields, a lawyer who also presented at the seminar.

“You still have to look at the risk of falling,” said Fields, a partner for Crawford Chondon and Partners who represents companies and supervisors facing charges under occupational health and safety laws.

“If somebody falls in a harness and it deploys and they’re safe, believe it or not, it’s a reportable incident,” Bolduc said.

In addition to training construction employers, Bolduc has investigated accidents, nine of which involved critical injuries and four of which resulted in death.

When dealing with employers, the first question he asks is whether they have trained their workers.

He also walked through the Ministry of Labour guidance on ladder risk assessment, which requires an assessment of the probability that a hazard will cause harm, and the severity of the outcome.

“Nobody’s going to like this, but you’re going to end up having to do a risk assessment for the use of ladders, and it’s going to be site specific,” he said.

Fields said employers also need to keep their documentation in case they are inspected by the Ministry of Labour or charged under the Occupational Health and Safety Act.

Although due diligence is one defence for companies or individuals on trial for provincial health and safety offences, the judges will want to see specific documents and the onus is on the defendant to show, on a balance of probabilities, that they exercised due diligence.

“They are all happy that you have your policies and program in place, but if somebody fell from a ladder and you don’t have ladder training, then you don’t have site specific due diligence,” Fields said.

The seminar was held in April at the Monte Carlo Inn and Suites in Markham.

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