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Until just recently, employers were able to enjoy free student labour without attracting obligations under the Occupational Health and Safety Act (OHSA). In that regard, if an unpaid co-op student or intern was injured in the workplace, the Ministry of Labour could not charge the employer for failing to protect that student from the injury under the OHSA. This was because only “workers” — persons who perform work or supply services for monetary compensation — were protected under the OHSA.
Effective as of November 20, 2014, the new definition of “worker” under the OHSA expands statutory protection to certain unpaid work, including work performed by unpaid co-op students, and certain other learners and trainees participating in a work placement in Ontario. “Worker” is now defined as any of the following (but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program):
- A person who performs work or supplies services for monetary compensation.
- A secondary school student who performs work or supplies services for no monetary compensation under a work experience program authorized by the school board that operates the school in which the student is enrolled.
- A person who performs work or supplies services for no monetary compensation under a program approved by a college of applied arts and technology, university or other post-secondary institution.
- Any unpaid trainees who are not employees for the purposes of the Employment Standards Act, 2000 because they meet certain conditions.
- Such other persons as may be prescribed (by a regulation made under the OHSA) who perform work or supply services to an employer for no monetary compensation.
All the persons listed above now have the same rights and duties as paid workers under the OHSA, such as the right to refuse work where there is a danger to health and safety. This change is also consistent with workplace safety legislation in some other jurisdictions.
This new definition is one of a number of legislative amendments under The Stronger Workplaces for a Stronger Economy Act, 2014, which aims to help protect vulnerable workers, including those who earn minimum wage, perform temporary work, and are employed as temporary foreign workers.
It is important to note that the Ministry of Labour’s website indicates that volunteers are not covered by this new definition of worker. For example, those who are non-student volunteers on humanitarian construction projects, and who would no doubt benefit from the OHSA’s protection, likely remain unprotected. That said, the section of the definition referring to “such other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation” leaves open the possibility that the Ministry may in the future provide a regulation prescribing other types of unpaid work (perhaps including volunteer work) protected under the OHSA.
However, could a small local church be prosecuted for an injury to a volunteer helping to put up Christmas lights in exchange for food? Would an individual conducting home repairs with the help of neighbours become an employer? While monetary compensation is no longer a requirement, under this definition the Ministry is recognizing certain forms of non-monetary compensation, such as training, student credit and work experience. This particular focus on students likely arises from the inability to prosecute employers for accidents involving unpaid students, which presented an ongoing issue which the Ministry of Labour had struggled with for years. While there has been speculation over whether the expanded definition might come to include volunteers, such as those for non-profit organizations, the practical implications of enforcing such an expansive definition would seem to make it unlikely – at least for the foreseeable future.
Going forward for employers, this expanded definition requires steps such as a reevaluation of joint health and safety committee and representative requirements (which vary according to the number of workers in a workplace), and ensuring that those covered by the new definition receive the same safety training and supervision provided to paid workers. Failing to recognize that student labour is not as free as it used to be could result in significant fines to your company.
About the Author: Toronto Employment Lawyer Phanath Im practices in all areas of employment law. She is a former Ministry of Labour prosecutor with special expertise in occupational health and safety (OHS) matters. Phanath’s OHS practice includes defending workplace accident-related regulatory charges, accident response, reporting and investigation, and managing OHS inspections.