The Ontario government will launch a first-of-its-kind program June 1 to make free naloxone kits (and free training) available at workplaces where there is a risk of staff witnessing or experiencing an opioid overdose.
In 2022, there were 2,521 confirmed probable opioid deaths in Ontario, which represents a 12% drop in cases compared to 2021. Despite this, the number of deaths last year remains substantially higher compared to what was observed prior to the pandemic (2017-2019).
Naloxone is a life-saving medication that can temporarily reverse an opioid overdose, restore breathing within two to five minutes, and allow time for medical help to arrive.
“Ontario, like the rest of Canada, is in the middle of an opioid epidemic made worse by a toxic supply of recreational street drugs,” said Monte McNaughton, Minister of Labour, Immigration, Training and Skills Development, when the program was first announced last year.
According to a report released last summer by researchers from the Ontario Drug Police Research Network (ODPRN) at St. Michael’s Hospital, one in 13 opioid-related deaths in the province between 2018 and 2020 occurred in the construction sector. The reasons behind this, say researchers, are a complicated mix of pain management, job insecurity and having nowhere else to turn.
Bars and nightclubs have also seen increased opioid usage and accidental overdoses, often because of recreational drugs laced with deadly opioids such as fentanyl and carfentanil.
For up to two years, Ontario will provide free nasal spray naloxone kits to businesses at risk of opioid overdoses through the Workplace Naloxone Program and free training needed to equip staff with the tools to respond to an opioid overdose.
Businesses can determine if they are eligible for the program and find additional information on accessing naloxone kits and training at Ontario.ca/workplacenaloxone. Once the requirement is in effect, Ministry of Labour, Immigration, Training and Skills Development’s inspectors will take an education-first approach to enforcement.
We reached out to Tushar Anandasagar and Hina Ghaus at Gowling WLG to provide some legal insight as to what this new legislation will mean for some businesses:
Q. What prompted the Province to introduce this OHSA legislation?
A. The province is recognizing that the ongoing opioid crisis is affecting workplaces across the province – something needed to be done.
Opioid overdoses may be preventable or possible to delay (to an extent) – the province has adopted the role of educating employers on steps they can take to recognize and reduce the severity of overdoses.
These measures also have the effect of reducing the load on the healthcare system – the province is pushing for early triage and prevention rather than escalation.
We’re already doing many of the same things when it comes to allergies – for instance, many workers with severe allergies are already carrying around EpiPens.
Many social changes start at the workplace – there is a good chance that we will start to see this protocol (or something similar) extending beyond the workplace.
The opioid crisis is ubiquitous - we have already seen other provinces discussing the adoption of similar requirements for workplaces.
Q. Is there a possibility the free training and access to the kits could be extended beyond two years and could funding be provided by another source?
A. Definitely. Our sense is that this is just the start. There are numerous benefits associated with early prevention rather than treating severe overdose cases via the healthcare system. A stitch in time saves nine.
Q. Are workers legally required to make their employers aware they could overdose?
A. Not by operation of statute – the onus is on the employer to spot a potential health and safety issue and create systems to make the workplace as safe as possible. Of course, nothing prevents a worker from voluntarily disclosing a substance use disorder to their employer. Aside from statute, employers may be able to establish early warning systems via fit for duty policies – such a policy would require the employee to report to work while not under the influence of an impairing substance. Employers are then responsible for enforcing the policy.
Q. What kind of privacy issues come into play with this legislation?
A. An employee’s disclosure of a substance use disorder is considered strictly confidential information – the employer should be prepared to treat this information as it would any other medical information received from an employee
Appropriate protections should be put in place to safeguard the information – shared with only those managers or supervisors who “need to know”.
These issues, and sample scenarios, are discussed in the province’s updated guidance on naloxone in the workplace: https://www.ontario.ca/page/naloxone-workplace
Q. What are potential concerns surrounding this legislation, if any, that managers of workplaces deemed as at-risk should be aware of?
A. There are risks associated with non-compliance with the OHSA – for instance, primary liability may result if the employer doesn’t run through a naloxone kit risk assessment to determine if there is a risk of a worker overdosing at work. Every employer is required to do this.
There are also risks associated with running a deficient risk assessment or ignoring risks that come to the employer’s attention – for instance, an employee self-discloses that they have a substance use issue, and the employer does nothing.
Another consideration is what could possibly happen if a worker administers naloxone and the recipient has, for instance, an allergic reaction – as per the province’s current guidance, the Ontario Good Samaritan Act should kick in to relieve workers of liability when they are administering naloxone in good faith.
Q. What should be the first steps an at-risk workplace should take when it comes to introducing this program?
A. Every workplace needs to run through a naloxone risk assessment – employers may wish to engage a third party to demonstrate that they have done this, as needed.
If naloxone risks are detected during the risk assessment, the employer should plan for implementation by referencing the OHSA guidance published by the province – this will necessarily mean engaging with staff, the OH&S rep, the JHSC, etc.
There are specific training requirements which need to be in place, which have been referenced within the province’s guidance. As needed, the employer should also prepare to procure naloxone kits – there may be free naloxone kits available depending on the sector the employer operates within.
Q. Can workplaces not deemed ‘at-risk’ access the program?
A. All workplaces can access the Province’s guidelines and training resources. As for the free naloxone kits and on-site training, we know the Province is initially focusing on high-risk workplaces. In future we may see an expansion of the training programs and free kits to non-high-risk environments.
Q. Is it difficult to make changes to the OHSA?
A. Yes and no – some changes are met with objection from employers (and employer associations), trade unions, and other stakeholders (e.g., fine increases, doubling of limitation periods, etc.). It really depends on the type of change that is being made.
Q. How will compliance of the legislation be monitored?
A. Effective June 1, 2023, we can expect standard MOL audits for employers – they will ask about naloxone kits in the same way that they currently ask about harassment policies, etc. There may also be acute responses triggered by workplace accidents – for instance, if there is a serious workplace accident and there is some indication that substance use disorder may have contributed to the situation, the employer’s risk assessment may be called into question, and they may be found not to have complied with these new OHSA requirements if they failed to identify reasonably apparent risks.
Once again, employers will need to be mindful of proving that they have undergone a risk assessment (document, document, document), particularly if they have concluded that there is no risk in the working environment.
Working from home has become the norm for thousands of people since the start of the pandemic and many may wish to continue that practice.
However, the question of work location is just one of many items on a growing list of work-related issues that are likely to capture additional attention as more of us are vaccinated lowering the risk of the spread of COVID-19, allowing employers to begin to try to get back to “normal”.
“A key issue right now is for employers to review their employment contracts and policies,” urges Melissa Roth, a human resources, labour and employment lawyer at Pavey Law LLP in Cambridge. “It’s a very worthwhile investment.”
She says changes in general, with respect to termination provisions, as well as changes brought about since the initial shutdown in March 2020 caused by the COVID-19 pandemic, have made it imperative for employers to revisit their employment contracts and policies.
“At first we didn’t have any plans for this in terms of a structure for what was going to happen when businesses were closed,” she says, referring to the laws that were in place in accordance with the Employment Standards Act, 2000 (ESA) at the time of the first lockdown. “At the end of the day, when you lay off someone you are terminating their position if you do not recall them back to work after a specific period of time.”
She says the introduction of the deemed Infectious Disease Emergency Leave (IDEL) changed that from an ESA perspective, allowing those temporarily laid off under the ESA due to COVID-19 to be classified as being on a job protected leave.
“But if you didn’t have that right reserved in your employment contract, then this is still known as a constructive dismissal in the courts,” says Melissa, noting many employers are now facing potential legal claims from employees.
As well, the continued ability to work from home, like other aspects of the working relationship, is a function of the individual’s employment contract, job duties and other factors.
“You, as an employee might be excited about continuing to work from home and may want to keep doing that but if the employer tells you that you have to come back to work, you likely have to come back,” she says, adding employees, under certain circumstances, may be able to request to continue working remotely based on protected grounds under the Human Rights Code. These requests could centre around disabilities or family issues, such as children being too young to be left at home alone since changes to the Education Act have permitted parents to keep their children out of schools.
“There are a lot of factors that play a role in a request to stay home and continue to work from home,” says Melissa, adding if there are no human rights grounds to remain home and it was not written into the contract, there is likely an expected obligation that an employee will return to the workplace. “There’s a lot to consider and the answer is never a black and white issue.”
She says some employers already had telecommuting policies in their work contracts because working remotely was already part of their regular business, but that even these policies may need updating.
“As an employer, you are going to have to consider if it is essential for your employee working at home to be available during core hours or whether they can make up their time throughout the day,” says Melissa. “In turn, the employee will have to know what the expectations are when working from home.”
As well, she says the Occupational Health and Safety Act and WSIB concerns have to be taken into consideration when assessing the possibilities of continuing to work from home.
“A person may be working from home and an employer still has certain obligations to take every precaution that’s reasonable under the circumstances for the protection of their worker,” says Melissa. “All of these issues have to be taken into consideration.”
She also encourages these considerations be included in the contracts of new hires and in employment policies.
Melissa mentioned that employers should turn their minds to other issues such as rapid testing and vaccination policies as they pertain to the workplace.
“You should have this in writing,” says Melissa, noting businesses should provide their employees with clear messaging and embrace this time as the opportunity to update their policies and contracts. “I’m just speculating, but the next pandemic is likely not going to take 100 years so let’s be prepared for this to happen.”
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