Any time workers are hired to engage in demolition, salvage, or even renovation work, any employer responsible for that work, and any owner of the place being worked on, has an obligation to ensure that hazardous materials are first identified. This comes from section 20.112(2) of the Occupational Health and Safety Regulation, which states:
20.112(2) Before work begins on the demolition or salvage of machinery, equipment, a building or a structure, or the renovation of abuilding or structure, all employers responsible for that work, and the owner, must ensure that a qualified person inspects the machinery, equipment, building or structure and the worksite to identify the hazardous materials, if any.
What are the consequences for failing to comply with section 20.112(2)?
Failing to comply with section 20.112(2) can be serious. First, failing to comply risks exposing workers and others to hazardous material. The purpose of a section 20.112(2) is to ensure hazardous materials are identified so that they can be safely dealt with, which is the subject of other requirements in section 20.112 and other parts of the Regulation.
Second, WorkSafeBC could treat a violation of section 20.112(2) as one of the “designated high risk” violations. This means that WorkSafeBC could consider an administrative penalty against an employer even for a single infraction. Those penalties are calculated based on an employer’s assessable payroll and are doubled if determined to be designated high risk. Penalties can be over $670,000.
In short, any person with an obligation under section 20.112(2) should ensure that they hire a qualified person to conduct the necessary inspection before any work takes place.
Do I have an obligation under section 20.112(2)?
There are two necessary conditions for section 20.112(2) to apply. First, there must be “demolition”, “renovation”, or “salvage” work planned. Demolition is defined in section 20.1 of the Regulation to mean “tearing down, destruction, breakup, razing, or removal of the whole or part of a building or structure, or of free standing machinery or equipment that is directly related to the function of the structure.”
Neither salvage nor renovation are defined. However, in Decision No. R0264270 & R0267701, WorkSafeBC’s Review Division gave “renovation” a broad interpretation which may surprise some. In that case, WorkSafeBC issued a $97,000 penalty to an employer for moving fire damaged non-asbestos ceiling tiles without first having a hazardous material survey completed. The employer retained Hooper Law and an occupational health and safety consulting firm, VOHS Consulting Group, to appeal the penalty. The Review Officer held even the relatively minor work at issue triggered section 20.112(2), stating:
The employer’s work at the premises was relatively minor, involving only cleaning surfaces of soot and smoke residue, and removing the hanging ceiling tiles for disposal and replacement. ... However, I note that the ordinary meaning of “renovation” is quite broad. Many dictionaries define the term “renovation” as including repairs and cleaning. For example, the Merriam Webster online dictionary provides the following definition: “to restore to a former better state (as by cleaning, repairing, or rebuilding)”. The Canadian Oxford Dictionary indicates that the definition includes “to restore to good condition; repair”. … in light of the above definitions, I am satisfied that it is more likely than not that the work performed by the employer is captured by the term “renovation”.
While we were able to overturn the entire $97,000 penalty on other grounds, the case supports just how broad section 20.112(2) can be.
Second, for section 20.112(2) to apply, you must either be an “owner” for the workplace where the work is taking place or be an employer responsible for that work.
Owner is broadly defined in the Workers Compensation Act and includes a tenant and anyone who “acts for or on behalf of an owner”.
Employers responsible for the work includes any employer that is retained to carry out the work. This would include prime contractors, demolition contractors, salvage contractors, abatement contractors, and renovation contractors. Further, even if you are not going to be doing any of the work directly, you may be an employer “responsible for the work” simply by retaining one or more of the employers that will be doing the work. See: Review Division Decision No. R0274150, discussed below.
Who is responsible for the contents of the survey?
If you have an obligation under 20.112(2), you must ensure that you hire a “qualified person” to carry out the hazardous material inspection. Qualified person is defined in section 20.112(1). Provided you select an appropriate qualified person, what obligation do you have regarding the content or quality of their inspection and associated report? This was the subject of Review Division Decision No. R0274150.
In that case, an employer was conducting insurance adjusting work in relation to a fire damaged building. The employer knew that before any work could take place a qualified person would have to conduct an inspection for hazardous materials. The employer retained a consulting engineering firm, which met the definition of a “qualified person”, to inspect the building and prepare a hazardous materials report.
A WorkSafeBC officer later reviewed the hazardous material report and determined that it was deficient. The Officer found that this fell on the employer as a violation of section 20.112(2). The Officer reasoned that because the inspection and associated survey were deficient, the employer had not fulfilled its obligations to ensure that the qualified person conducted the inspection.
The employer hired Hooper Law and VOHS Consulting Group to appeal. In the appeal, we argued that the employer was not responsible for any of the demolition or renovation work, and therefore did not have an obligation in any event. The Review Officer disagreed, holding that because the employer had hired some of the employers that would be doing the work, including the engineering firm, the employer had an obligation under section 20.112(2), as it was now “responsible for that work”.
However, the Review Officer agreed with our argument that section 20.112(2) only creates an obligation to ensure that the qualified person conducts the inspection. The Review Officer stated:
I am not satisfied … that the employer was in breach of section 20.112(2) of the Regulation. As noted above, that section indicates that, prior to the demolition or renovation of a building or structure, an owner or employer must ensure that a qualified person inspects the building or structure to identify the hazardous materials, if any. The employer did exactly that: it retained the consulting engineering firm to carry out the Hazmat Survey, and produce a report. There is no suggestion in the evidence that the consulting engineering firm was not a “qualified person”, or that they did not inspect the building to identify the hazardous materials, if any. ... In my view, the employer fulfilled its obligation under section 20.112(2) of the Regulation.
The Review Officer also agreed that any defects in the hazardous material survey report fall on the qualified person, not the person that hired them, stating:
… section 20.112(2) of the Regulation does not set out any obligations regarding how a Hazmat Survey is to be conducted, what steps must be taken to ensure a compliant Hazmat Survey, and what information must be included in a compliant Hazmat Survey report. Rather, such matters are addressed in section 20.112(3) of the Regulation. I note that section 20.112(3)of the Regulation applies to the qualified person and not to the owner or employer.
The Review Officer cancelled the order against our client.
Conclusion
The decisions demonstrate the broad interpretations being given to when a section 20.112(2) obligation arises. Employers and owners must be alive to the possibility that they may have such an obligation. The decisions also support a precautionary approach for employers and owners: if in doubt about your obligation, the best security against being found in violation of section 20.112(2), and facing administrative penalties, may be to ensure a qualified person is hired before work takes place. If WorkSafeBC inspects your workplace, you may be surprised to learn that section 20.112(2) applies. By then it may be too late.
If you or a client have received an order or administrative penalty, contact us.
*The above is provided for information purposes and is not to be construed as legal advice.
