Question: In Ontario, we understand the legal requirements for how employers manage confined space entries is changing. Is that correct? If so, what is changing?
Answer: Prior to July 2011, legal requirements for how employers manage confined space entries were found in four sector-specific regulations under Ontario’s Occupational Health and Safety Act (OHSA).
As of July 1, 2011, these confined space provisions have been consolidated into one regulation — the Confined Spaces Regulation (O. Reg. 632/05).
The regulation applies to workplaces previously covered under sector regulations (construction, health care, industrial establishments and mining) and most workplaces covered by the OHSA, but not by a sector regulation (for example, teachers and sewer service workers). Its intent is to protect the health and safety of workers who carry out work in confined spaces.
Definition of a confined space under the regulation
What makes a space a “confined space”? Under the regulation, a confined space is defined as a fully or partially enclosed space:
(i) that is not both designed and constructed for continuous human occupancy; and (ii) in which atmospheric hazards may occur, as a result of its construction, location, materials or substances in it or because of work carried out inside it.
Atmospheric hazards means the accumulation of flammable, combustible or explosive agents, an oxygen content that is less than 19.5 per cent or more than 23 per cent or accumulation of atmospheric contaminants that could be lethal or interfere with a person’s ability to escape unaided.
If conditions (i) and (ii) are both present, a confined space exists. Short of implementing measures that would eliminate the possibility of a potential atmospheric hazard, employers must comply with the regulation. Implementing control measures to alleviate the risk of the hazard or contracting out work to be performed in confined spaces does not exempt one from compliance.
Before a worker can enter the confined space, you must generally take the following steps:
Develop a written confined space entry program: The program must include a method for identifying confined spaces, assessing the hazards, developing entry plans, training workers and establishing an entry permit system that sets out measures and procedures to be followed when work is performed in a confined space.
Conduct hazard assessments for each confined space entry: An assessment of hazards related to each confined space must be conducted. The assessment must be conducted by a person with adequate knowledge, training and experience. The assessment document must be signed and dated by that person, and a record of the person’s qualifications must be maintained. If the workplace has a number of confined spaces that are similar in construction and present the same hazards, their assessments may be recorded in one document. But each confined space must be clearly identified in the assessment document.
Develop plans: A written plan, setting out measures and procedures to control hazards identified in the assessment, must be developed by a competent person. The plan must contain, among others, provisions for on-site rescue procedures, rescue equipment and methods of communication and assignment of attendants outside and near the confined space with prescribed duties. One plan can apply to two or more confined spaces that are of similar construction and present the same hazards. The plan must be reviewed as often as is necessary to ensure it remains relevant and adequate.
Provide adequate training: Every worker who enters a confined space or conducts related work (example, attendants and rescue personnel) must receive adequate training in the recognition of hazards associated with confined spaces and in safe work practices, in accordance with the relevant plan. Rescue personnel must be trained on on-site rescue procedures, first aid, cardiopulmonary resuscitation (CPR) and the use of the rescue equipment. A review of training is required annually or whenever there is a change in circumstances that may affect worker safety. Records of training must be kept.
Develop entry permits: A permit must be issued each time work is carried out in a confined space to alert workers about hazards that have been identified and established control measures. A permit must include, for example, a description of the work to be performed and associated hazards and control measures, a record of each worker’s entries and exits.
Keep records: Records of assessments, plans, training, among others, must be kept for at least one year after the documents were created, or a longer period as necessary to ensure the last two records of each document are kept. On construction projects, records must be kept for the duration of the project and for one year after the completion of the project.
Contravention of any of the requirements of the OHSA and its regulations is an offence which carries a maximum fine of $25,000 or imprisonment for a term of not more than twelve months, or to both (maximum fine of $500,000 for a corporation).
For a comprehensive review of the regulatory requirements, consult the Confined Spaces Regulation which can be found at www.e-laws.gov.on.ca/html/regs/english/elaws_regs_050632_e.htm and the Ministry of Labour “Confined Spaces Guideline” at www.labour.gov.on.ca/english/hs/pdf/gl_confined.pdf
Danielle Leon Foun Lin is a lawyer with Nelligan O’Brien Payne in Ottawa. She can be reached at (613) 231-8369 or visit www.nelligan.ca for more information.
