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mean that an OHS inspector will readily
accept and agree that a constructor’s or
employer’s customized protocol meets
the “every precaution reasonable in the
circumstances” standard. This pandemic
situation is new for OHS inspectors as
well, and they may seek to enforce public
health orders without fully understanding
or considering what may or may not be
reasonable in the specific circumstance.
As such, construction employers may
have grounds to defend a protocol they
have created and challenge a particular
OHS regulator’s interpretation of the
public health measures.
If an OHS regulator issues a
compliance or stop-work order for
breaching public health orders, industry
professionals can appeal the decision by
escalating the matter to an adjudicative
body. In most jurisdictions, the labour
relations board is responsible for hearing
In the alternative, construction
employers can try to negotiate with
the OHS regulator to find an acceptable
solution. Discussions regarding creative
additional protective measures or
enhanced means of ensuring proper
hygiene at a jobsite – such as cloth
masks, acrylic barricading used in
the retail sector or even respiratory
protection used in the healthcare sector
– can often result in a positive outcome.
Each circumstance is unique and
depends on the specific role of the
industry professional, the trade, the
nature and location of the jobsite, what
other trades may be interacting on site,
etc. – the variable are endless. OHS
legislation is vague and broad to capture
unexpected dangers, but it also allows
industry professionals to find creative
solutions to fit their specific projects
and encourage compliance by everyone
on site. Be sure to consult with an
OHS expert when drafting or reviewing
and revising OHS protocols to ensure
obligations are met and avoid problems
with OHS inspectors. n
Patrick Groom is a partner in the labour
and employment group at McMillan LLP.
Victor Kim is an associate at McMillan
LLP and provides counsel in all areas of
employment and labour law.
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