|Vanisha H. Sukdeo
Torrential rains have hammered Ottawa resulting in power outages this summer and tornado warnings are becoming more common in Ontario. The impacts of climate change are felt by everyone — but to varying degrees. Those who are able to work from home and allowed to move meetings to Zoom rather than in person allow for greater disparity among workers as some are deemed “essential” and must work on-site while others can stay home.
Workers who work primarily outside such as farmworkers and construction workers are most directly impacted by the changing climate. Delivery truck drivers such as the UPS drivers in the U.S., who have just reached a tentative agreement with the help of their union the Teamsters, have bargained for increased protection from the heat such as new trucks being mandated to have air conditioning as well as increased breaks for drivers during hot days.
In Ontario, the province has proposed new regulations that would amend the Occupational Health and Safety Act (OHSA) and would apply to all workplaces governed by the legislation. The new regulations would enforce heat stress assessments and would force employers to mitigate against heat-related illnesses. It also requires employers to recognize the symptoms of heat-related illnesses as well as how to take preventative action.
This is a good step forward if the changes actually become law. But the rigour of the language and the applicability needs to be considered. There also needs to be consideration given according to different workers and their ability to tolerate heat as it is not universal. This may lead to increased accommodation requests. Also, there may be an argument in the future that the right to refuse unsafe work includes the right to refuse to work when it is too hot.
How far will this right stretch? What happens when the heat is too much for any worker? Think about the white collar workers unlike the construction worker or delivery truck driver, the white collar worker still has to commute to the office and may still feel the impacts of climate change during that voyage. What happens when the air conditioning in your vehicle fails during 40-degree weather? Would you still have to commute to work despite that? The need to fight climate change and the need to protect workers from the worst impacts of climate change may mean that workers need to live and work in walkable cities. The traffic in the GTHA is among the worst in North America and real thought and debate needs to focus on how workers traverse their cities and the corresponding demand for gas-guzzling vehicles.
Working from home is not an option for all workers but for the workers who have that option there should be weight given on the part of employers with a view to climate impact and having workers all drive in the office when the work could be done elsewhere.
The focus must be on workers who work outside, but there must be some thought given to all workers whether inside or outside. Workers must gain protection through legislative change and should not have to rely on their unions to protect them alone. Implementing legislation allows for a universality that collective bargaining may not be able to guarantee.
Vanisha H. Sukdeo, BA, LL.B., LL.M., Ph.D. is a lawyer and adjunct professor at Osgoode Hall Law School. Her fourth book titled Mandatory Human Rights Due Diligence: From Legal Custom to Lawful Concern was published by LexisNexis in February 2023. Her forthcoming book discusses how climate change will impact workers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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