Personal Protective Equipment on Project Sites Legislative Interpretations

Question

Specific protective footwear and headwear is required on project sites. How can employers and workers determine when a workplace is deemed a project site?

Answer

When reading the definition of project site provided in the Occupational Health and Safety (OHS) Act, it specifically identifies a location where construction is carried on.

“project site” means any building, structure, premises, water or land where construction is carried on.

With construction being a key word in the definition of project site, it is necessary to look at its definition as provided in the OHS Act:

“construction” includes building, erection, alteration, repair, dismantling, demolition, structural maintenance, painting, moving, land clearing, earth moving, grading, excavating, street and highway building, concreting, equipment installation and alteration and the structural installation of construction components and materials in any form or for any purpose, and any work in connection therewith.

Through decisions by the Supreme Court of Canada (SCC), the following guidance has been offered when interpreting legislation:

1. “it is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences”, and
2. “we must give the sections a reasonable construction and try to make sense and not nonsense, of the words”.

Considering the decisions from the SCC, one cannot interpret the listed terms in the definition of construction broadly but must interpret them through what construction itself means. Based on that, a plumber repairing a leaky faucet or two employees moving a desk, would not fall under the meaning of construction under the OHS Act. For terms listed in the definition that aren’t normally associated with construction, such as repair, painting, moving, and equipment installation and alteration, or for any work described by those terms to fall under “construction,” there must be a connection that would commonly link them to construction activities.

It does not mean that protective footwear and headwear would not be required to be worn. An employee could still be exposed to a hazard that may injure the employee’s head or foot and shall wear protective equipment that provides appropriate protection against the hazard.

Referenced Legislation 

40(1) On a project site, an employee shall use Class E, Type 2 headwear that conforms to CSA standard CSA Z94.1-15, “Industrial protective headwear – Performance, selection, care, and use” or a standard offering equivalent or better protection.

41(1) On a project site, an employee shall use Grade 1 footwear with sole protection that conforms to CSA standard CSA Z195:14 (R2019), “Protective Footwear” or a standard offering equivalent protection.