Ontario's Occupational Health and Safety Act (OHSA) was recently amended to require employers who become aware, or ought reasonably to be aware, that there may be a risk of its workers having an opioid overdose at the workplace to have a naloxone kit in that workplace.
OHSA also requires such employers to maintain the naloxone kit and provide training to ensure workers are familiar with how to use naloxone kits.
Does your workplace require a Naloxone Kit?
For the OHSA requirements to apply, there must be:
- A risk of a worker having an opioid overdose.
- While at the workplace where the worker performs work for the employer.
- The worker must be a worker who performs work for the employer.
If all of these scenarios are present, the employer must comply with the OHSA requirements to have naloxone in the workplace. If any one of these scenarios are not present, an employer does NOT need to comply with the OHSA requirements to provide naloxone in the workplace.
Certain industries such as construction, bar and nightclub industry have been identified as commonly impacted industries. These employers should exercise heightened awareness when determining whether they ought to have known about the required risk.
The OHSA requirements do NOT apply to workplaces where:
- The risk of an opioid overdose is created by a non-worker, such as a customer, client, patient or any other member of the public who may be present in the workplace.
- A worker is at risk of having an opioid overdose at the workplace, but that worker does not perform work for the employer (e.g. on a work site shared by multiple employers).
- There is a risk of an opioid overdose occurring outside of the workplace.
For instance, where an employer may be aware that a worker on leave from the workplace is at risk of having an opioid overdose, there is no requirement under OHSA to provide a naloxone kit in the workplace. This is because the worker is not presently working, so there is no risk of the worker overdosing at work. Should this worker return to the workplace, the requirement to comply will depend on the specific circumstances of the worker at that time and what the employer is aware of, or ought to be aware of, upon the worker's return.
Some circumstances that the Government of Ontario has identified as a risk of a worker overdosing on opioids are:
- A worker overdose has previously happened in the workplace.
- A worker has disclosed that they use opioids and that they may be at risk of overdosing.
- An employer has observed or discovered opioid use by workers in the workplace during a workplace investigation.
- The employer has found opioid paraphernalia, such as used needles, in the workplace.
- The employer is made aware of the risk by someone in the workplace.
It is important to note that knowledge that a worker uses opioids as prescribed by a medical practitioner is unlikely to, on its own, create an awareness of a potential risk of a workplace opioid overdose. This is because the employer cannot assume that everyone who uses opioids under medical supervision will abuse opioids. Opioids can be an effective part of pain management for medically supervised patients; when the employer is aware that their workers may be taking opioids, the next question to be addressed is whether the employer has any reason to suspect those workers have ever misused them and could overdose at the workplace .
It is also important to note that OHSA does not require an employer to assess or to inquire about the risk of one of their workers having an opioid overdose in the workplace. While some employers may be tempted to proactively conduct a risk assessment, such step should not be taken without discussing the circumstances with your trusted employment counsel. The results of such risk assessment can lead to unintended consequences when administering the employment relationship, for instance, when the employer needs to take negative employment consequences against an employee who may have been identified as an opioid user under such assessment.
Lastly, the risk assessment and the requirement for the kit when the required risk is there is location based, e.g. a retail employer with multiple store locations is aware (or ought to be ware) of the required risk for an employee who works at one store only, the other stores do not have to have naloxone.
How many Naloxone Kits?
OHSA does not specifically require an employer to provide more than one naloxone kit in their workplace. However, OHSA requires an employer to take every precaution reasonable in the circumstances for the protection of a worker.
Therefore, depending on the size of the employer's work location where there is the required risk, or depending on the number of workers who perform work for the employer and who are at risk, the employer may determine that multiple naloxone kits are necessary in their workplace as a reasonable precaution to protect their workers.
Employee training & maintaining Naloxone Kits
An employer who is required to provide a naloxone kit in their workplace is responsible for maintaining it in good condition. Regulation 559/22 under OHSA specifies the contents of a naloxone kit and how to maintain it. For instance, naloxone has an expiry date and if the naloxone in the workplace is expired, it must be replaced.
Employers are also required to post the names and workplace locations of the workers who are in charge of the naloxone kit and who have received the required training. This information is to be posted in a conspicuous place close to the naloxone kit, where that information is most likely to come to the attention of other workers.
Workers who are in charge of administering naloxone do not necessarily have to be aware of all details relating to the worker who may be at risk (they may only need to know that there is a risk such that they are prepared to respond as needed). Employers must still respect the privacy of their workers' personal health information and only disclose the information that is necessary to comply with the naloxone requirements and take every precaution reasonable in the circumstances for the protection of their workers.
If an employer is required to provide a naloxone kit in the workplace, it must also ensure that, at any time there are workers in the workplace, the naloxone kit is in the charge of a worker who (a) works in the vicinity of the kit, and (b) has received the required training. There is no requirement to use a specific training provider, but it is the employer's responsibility to ensure that any workers who are in charge of the naloxone kit can safely administer naloxone in the workplace.
Regardless of the presence of a naloxone kit in the workplace, if a worker falls unconscious in the workplace the employer must call 911, regardless of any potential administration of naloxone.
Additional Gowling WLG insight
While there are still some outstanding questions that the new OHSA amendments do not appear to address, e.g. how many workers must be trained on administering naloxone when the required risk is present, the Government of Ontario continues to update its materials.
Once an employer has identified that the required risk is present and naloxone must be available at the workplace, it is important to note that in most circumstances, the Good Samaritan Act, 2001 will likely protect workers (and employers) from liability where a worker voluntarily administers naloxone at the workplace in an emergency involving a suspected opioid overdose. The Good Samaritan Act, 2001 generally allows people (trained or not) to use naloxone in the event of an emergency (unless they cause damage through "gross negligence"). The standard of care to determine gross negligence depends on the person's training, this will be more important for health care professionals. A lay person acting reasonably will likely be protected under the Good Samaritan Act, 2001 when they are attempting to help, again based on their training and experience.
If you need any assistance determining your obligations under OHSA with respect to naloxone, contact one of your trusted Gowling WLG Employment, Labour and Equalities lawyer.