By Sara Mojtehedzadeh – Work and Wealth Reporter – Sat., Dec. 19, 2020
More than 7,600 workers have contracted COVID-19 on the job, prompting thousands of workplace safety inspections across the province. But since the start of the pandemic, the Ministry of Labour has issued just two fines — one of them to a worker.
Ministry inspectors have conducted over 31,500 field visits checking for pandemic precautions. They issued about the same number of health and safety orders, which identify workplace violations and require employers to address them.
But only one employer has faced any kind of financial penalty for breaking workplace safety laws and none have faced serious prosecution, data requested by the Star shows — even though occupational health experts and labour advocates say these deterrents are critical to protect vulnerable workers.
That task is particularly urgent in light of new data from the Ontario Health Coalition showing that workplace outbreaks, especially in industrial settings, now “far outpace the spread in the general public.”
“In the current environment, external inspection and enforcement is absolutely crucial,” said Eric Tucker, a professor at York University’s Osgoode Hall Law School who has written extensively on safety regulation and employment standards.
“When you’re dealing with workers in vulnerable positions, in precarious forms of employment, they are not going to be able to secure the rights the law grants them. And all too often employers will not be providing them with the level of protection they’re required to provide.”
In a statement to the Star, spokesperson Kalem McSween said the Ministry of Labour “investigates every complaint related to workplace health and safety we receive, to provide support, advice and enforcement where necessary.”
“The ministry is working closely with the Ministry of Health and Public Health Ontario to monitor the status of COVID-19 and to provide support, advice and enforcement as needed to ensure the health and safety of Ontario’s workers.”
“The Ministry of Health is the lead ministry for providing direction and guidance regarding provincial emergencies related to communicable diseases,” the statement said, adding that “multi-ministry” inspections have issued 27 tickets for failing to meet public health requirements under the Reopening Ontario Act.
Enforcing workplace safety laws specifically is an “integral” infection control measure, according to the SARS Commission tasked with investigating the province’s response to the 2003 epidemic. That report described the Ministry of Labour’s “sidelined” role as a key failing during the deadly outbreak.
“The evidence reveals widespread, persistent and ingrained failures by the health-care system to comply with, and by the Ministry of Labour to enforce, Ontario’s safety laws,” the commission headed by Justice Archie Campbell found.
“We must do better next time. The only way to do better is to ensure that the Ministry of Labour is in a position to oversee and enforce, as aggressively as required, Ontario’s safety standards.”
Deena Ladd of the Toronto-based Workers’ Action Centre called the ministry’s COVID-19 record “shocking.”
“The ministry is obviously not using the powers and the tools that they have to enforce and to send a strong message to employers that they can’t mess around on this,” she said.
“When you’re looking at health and safety, you’re actually looking at people’s lives.”
In September, the ministry announced it would hire 100 more health and safety inspectors to cope with the demands of COVID-19 and “build the largest workplace safety inspectorate in Ontario’s history.”
But workplace protections have remained a critical flashpoint: a new survey from the Institute for Work and Health shows half of essential workers reported inadequate infection control on the job.
In October, the ministry issued a fine to a teacher who tested positive for COVID-19 but failed to wear a face mask. The so-called “Part I ticket” carries a maximum penalty of $1,000. In November, it issued another ticket to a trucking company for violating workplace safety requirements.
The ministry has not launched any serious prosecutions over COVID-19 lapses, which can come with jail time for individuals and maximum fines of $1.5 million for companies. Serious prosecutions are usually considered when a worker has died or been critically injured as a result of a health and safety violation, and can sometimes take months to initiate. While inspectors can recommend laying charges after identifying violations, the decision rests with the ministry’s legal services team, who must weigh the public interest of the case and the likelihood of conviction.
So far, 23 people have died as a result of work-related COVID exposures, according to data from the Workplace Safety and Insurance Board.
Ontario Federation of Labour president Patty Coates said there were “glaring shortfalls” in the ministry’s enforcement strategy.
“It’s their legal mandate to ensure workers are in safe workplaces,” she said. “Inspectors are workers, too, and they go into these workplaces and see what is happening … they must have full authority and approval to enforce the (health and safety) act.”
The data obtained by the Star shows that between March and October, the ministry’s 13,500 proactive field visits focused heavily on precarious sectors: those reliant on migrant workers, the underground construction economy, meat packers and temporary employment agencies. The ministry also conducted 10,300 reactive field visits responding to COVID-19 complaints or concerns raised by workers or employers.
The Star asked the ministry to provide the names of the 20 employers that received the highest number of health and safety orders during that period. Sienna Senior Living, which was issued 27 orders, was the only long-term-care provider on the list. Other than a poultry processor and a hand sanitizer manufacturer, the rest of the workplaces were construction companies.
While construction is a high-risk industry even outside an infectious disease outbreak, the workers most likely to contract COVID-19 on the job during the pandemic’s first wave were those in long-term-care homes, farms, hospitals and food processors, according to the number of accepted compensation claims at the WSIB. Claims are accepted if the board determines the individual’s workplace was a “significant contributing factor” to getting sick.
Tucker described the lack of orders issued in high-risk workplaces as “surprising.”
“You would have thought that in those congregate settings where you have people together in close proximity … will be where you would see the greatest number of violations,” he said.
Mario Possamai, former senior adviser to the SARS Commission, said the “continued sidelining of the Ministry of Labour” is an “ongoing feature of COVID-19.”
“I am troubled because it appears that post-SARS problems identified by Justice Campbell were not addressed,” he said.
According to the Ontario Health Coalition report released this week, the manufacturing sector saw the largest increase in cases between mid-November and early December, with a 77 per cent spike. By contrast, the increase among the general population over the same period was 22 per cent.
Focusing ministry inspections on precarious workplaces is an important step because vulnerable workers are less likely to be able to enforce their workplace rights, said Ladd. But part of strong enforcement is effective deterrence, she added.
“Laws need teeth,” she said. “We all know if we get a parking ticket, we’d better pay it because we’re not going to get our licence plate renewed. That is effective enforcement.”
In December 2019, just months before the pandemic gripped the province, the auditor general issued a similar warning. It found that while employers bear the most legal responsibility for workplace safety, the bulk of the ministry’s fines went to individual workers and supervisors.
“The ministry’s enforcement efforts are not preventing many employers from continuing the same unsafe practices,” the auditor general’s annual report said, noting that many employers were ordered to fix the same hazard year after year.
“Coming out of the pandemic, there’s going to be this push and pull around giving businesses a break because they’ve suffered a lot during the pandemic,” said Ladd.
“But what is fundamentally not negotiable are the conditions that allow people to be safe at work — to be able to go home at night and not put their lives on the line.”