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4. WHMIS and the Employer

In Ontario, the duties of the employer in order to comply with WHMIS (Workplace Hazardous Materials Information System) are set out in the Occupational Health and Safety Act and the WHMIS Regulation. This chapter describes those duties and where applicable, references the relevant sections of the provincial law. In this chapter, all references to "the Act" mean Ontario's Occupational Health and Safety Act, and all references to "the regulation" mean Ontario's WHMIS Regulation.

Earlier chapters of this guide state that the WHMIS legislation applies to products that can be classified as "controlled products", and this is the term used throughout the federal WHMIS legislation. Ontario's WHMIS legislation uses both the terms "hazardous material" and "controlled product" to refer to products that are covered by WHMIS. The term "hazardous material" is used in the Act, while the term "controlled product" is used in the regulation. For the purpose of implementing WHMIS, these terms mean the same thing.

General Information

What are the duties of an employer in charge of a worksite where controlled products are used?

An employer in charge of a worksite where controlled products are used has 3 duties:

  1. to ensure that controlled products are labelled or identified,
  2. to obtain material safety data sheets for controlled products, and
  3. to educate workers.

Labelling and Information

The Supplier Label

What are the duties of the employer respecting the labelling of a controlled product purchased from a supplier?

  1. The employer must ensure that every container of a controlled product received from a supplier has a supplier label [section 8(1) of the regulation].

    A proper supplier label is shown in Appendix II.

  2. The employer must also ensure that until the supplier container is empty, the supplier label is not deliberately removed, destroyed or changed [section 37(2) of the Act and section 8(2) of the regulation].

What should the employer do if the supplier has not provided an appropriate label for the controlled product?

The employer is allowed to store a controlled product but not to use it until proper labels are obtained [section 5(1) of the regulation].

The employer should notify the Ministry of Labour in writing, if after making reasonable efforts such as telephoning and/or writing the supplier, he/she is unable to obtain proper labels [section 37(4) of the Act].

What should the employer do if the supplier label is accidentally removed or destroyed?

The employer must replace the supplier label. To do this the employer has 2 choices.

  1. The employer can use a new supplier label if extras are on hand. For example, at the time of purchase the employer can ask the supplier to include some extra labels with the shipment in case the employer has to replace any of the supplier labels.
  2. or

  3. The employer can make a workplace label [section 8(3) of the regulation].

The Workplace Label

What is a workplace label?

A workplace label is a label that the employer produces, for use in the employer's workplace only, and that contains the following information:

  1. the identity of the product;
  2. information for the safe handling of the product; and
  3. a statement that a material safety data sheet, if supplied or produced, is available.

These requirements for the workplace label are very general, unlike the federal requirements for the supplier label, which are very specific. The workplace label does not require a border, hazard symbols or specific wording. However, in spite of the flexibility given to the employer, there are some commonly understood expectations as to what makes an acceptable workplace label.

First, in identifying the product, the workplace label must indicate one of the following: the brand name, chemical name, common name, generic name, trade name, code name or code number of the controlled product.

Second, "information for the safe handling of the product" means precautions that the worker must take to minimize the risks of adverse health effects or physical injury. These precautions can be conveyed by using pictures, words, symbols or any other mode of communication. Whatever mode of communication is used, it must be combined with worker education to ensure that the information on the workplace label is understood.

Third, if a material safety data sheet is available for the controlled product, the workplace label must say so. This material safety data sheet may be one provided by the supplier of the product, or one prepared by the employer. Note that for some controlled products, no data sheet will be available, for example, for the controlled products referred to in Partial Exemptions. In such cases the workplace label does not have to have any statement regarding a material safety data sheet.

METHANOL

FLAMMABLE—DO NOT USE NEAR AN OPEN FLAME OR PROCESSES THAT GENERATE SPARKS

AVOID INHALING VAPOURS.

READ THE MATERIAL SAFETY DATA SHEET BEFORE USING THIS COMPOUND

Decanted Controlled Products

What are the labelling requirements for a controlled product that is transferred from the supplier container into another container?

In general, if a controlled product is transferred from the supplier container into another container at the workplace, then the second container must have a workplace label [section 10(1) of the regulation].

There are 2 instances when a controlled product can be transferred from a supplier container to another container, and the second container will not require a workplace label. This is the case when the second container is a portable one, and

1. the controlled product transferred into it is used immediately, in which case no label or identification of any kind is required [section 10(2)(b) of the regulation];

or

2. all of the following conditions are satisfied:
(i) the controlled product is used only by the worker who filled the portable container;
(ii) the controlled product is used only during the shift in which the portable container was filled; and
(iii) the contents of the portable container are identified [section 10(2)(a) of the regulation].

To identify the contents of a portable container, as referred to in 2(iii) above, the employer can use any means of identification. For example, colour coding, a chemical formula, or a product name, would all be acceptable.

Outer and Inner Containers

What are the duties of the employer respecting the labelling of a controlled product that is received in outer and inner containers (for example, a box containing 4 cans of a controlled product)?

The duties of the employer depend upon whether the employer and supplier have a written agreement that the employer will label inner containers of a multi-container shipment. Under the federal Controlled Products Regulation, the supplier does not have to label the inner containers of a multi-container shipment if two conditions are met:

  1. the outer container has a WHMIS label, and
  2. the supplier has a written agreement with the employer, that the employer will label the inner containers.

Under Ontario's WHMIS Regulation, if the 2 conditions above apply, the employer is required to fulfill his/her part of the agreement, and to label the inner containers of a multi-container shipment with supplier labels [section 8(4) of the regulation].

It should be emphasized that the employer's duty to label inner containers only comes into effect if a written agreement exists. The employer is under no obligation to have such an agreement with the supplier.

(For a full explanation of the supplier's duties respecting the labelling of a controlled product that is packaged in outer and inner containers, see Chapter 3 and [section 14 of the Controlled Products Regulation].

Imported Controlled Products

What are the duties of the employer respecting the labelling of imported controlled products?

The duties of the employer depend upon arrangements made between the employer and the supplier/importer. In general, under the federal WHMIS legislation it is the duty of the supplier/importer to provide a supplier label before the product can be sold in Canada. However, there is an exception to this general requirement. The supplier does not have to label an imported controlled product if 2 conditions are met:

  1. the imported controlled product is shipped directly to the employer's workplace; and
  2. the supplier has a written agreement with the employer, that the employer will label the controlled product.

Under Ontario's WHMIS Regulation, if the 2 conditions above apply, the employer is required to fulfill his/her part of the written agreement, and to label the imported controlled product with supplier labels [section 8(5) of the regulation].

It should be emphasized that the employer is under no obligation to have a written agreement with the supplier.

Bulk Shipments

How should the employer label a controlled product that is received at the workplace as a bulk shipment?

For a controlled product that is received at the workplace as a bulk shipment, the employer is required to label the containers into which the shipment is off-loaded. The employer can use either

  1. a supplier label; or
  2. a workplace label,

depending upon the way in which the supplier has provided the labelling information [section 8(6) of the regulation].

Under the federal Controlled Products Regulation, the supplier can provide the labelling information for a bulk shipment, in any one of 3 ways:

  1. by sending a label with the shipping documents that accompany the bulk shipment, or sending a label to the employer on or before receipt of the bulk shipment;
  2. by sending the required labelling information in the form of a written statement; or
  3. by adding the required labelling information to the material safety data sheet.

If (a) is the case, the employer would use the supplier label for the bulk shipment. If (b) or (c) is the case, the employer would use the information provided by the supplier to make a workplace label for the bulk shipment.

The employer will not receive a label or labelling information with every bulk shipment of a controlled product. If the employer already has up-to-date labelling information, for example, from a previous shipment, the supplier is not required to send the labelling information with subsequent bulk shipments.

If the bulk shipment is not off-loaded into a container, the employer is permitted to use a placard to identify the shipment. The placard must contain the information normally required in a workplace label [section 12(a)(i) of the regulation].

Controlled Products Produced in the Workplace

What are the labelling requirements for a controlled product that is produced in the workplace, rather than being purchased from a supplier?

The employer is required to make a workplace label for controlled products produced in the workplace [section 9(1) of the regulation].

There is an exception to this general rule. A workplace label is not required on a controlled product that the employer has produced if that controlled product is packaged for sale, and is already, or is about to be, appropriately labelled. An example would be a controlled product that is in a container, ready for sale or distribution to retail outlets, and is appropriately labelled as a consumer product [section 9(2) of the regulation].

In addition, no label or identification is required for a fugitive emission, or for a controlled product that exists only as an intermediate and is undergoing further reaction within a process or reaction vessel [section 1(2) of the regulation].

Note:

"Fugitive emission" refers to a small amount of a controlled product that is known to escape from process equipment or from emission control equipment. It does not refer to an escaped amount that would require any type of containment or clean-up measures to be taken.

How will the employer determine whether a chemical or biological agent produced in the workplace is a controlled product?

  1. To determine whether a material produced in the workplace, for further use in that workplace, is a controlled product, the employer must go through the same steps that a supplier goes through when classifying products intended for sale to workplaces. The employer should first refer to Part IV of the federal Controlled Products Regulation which sets out the criteria for the classification of controlled products and then determine which of the materials produced in the workplace meet any of the criteria [section 39(1) of the Act] and [section 3 of the regulation].

    Assistance to the employer to properly classify controlled products produced for use in the workplace is available through private consultants and through the Canadian Centre for Occupational Health and Safety.

  2. In the Act and the WHMIS Regulation, the process of determining whether a material produced in the workplace is a controlled product is called an assessment. The assessment should be in writing and a copy made available to workers as well as given to the joint health and safety committee if any, or a worker representative [section 39(2) of the Act].

    Some employers may be familiar with the term "assessment", if they are subject to any of Ontario's designated substance regulations. The term has a different meaning in the WHMIS legislation than in the designated substance regulations. Under WHMIS, an assessment refers only to deciding whether a product produced in the workplace is a controlled product. In the designated substance regulations, an assessment refers to evaluating worker exposure to the designated substance.

Controlled Products in Piping Systems

What are the identification requirements of controlled products in piping systems and vessels?

When a controlled product is contained or transferred in,

  1. a pipe,
  2. a piping system including valves,
  3. a process vessel,
  4. a reaction vessel, or
  5. a tank car, tank truck, ore car, conveyor belt or similar conveyance,

the employer can use any means to identify the controlled product. As long as the means of identification is understood by the worker, such devices as warning signs, symbols, piping diagrams or colour coding would all be acceptable [section 11 of the regulation]. There is no requirement for a workplace label.

Notes:

  1. The worker education program must explain the means of identification, as well as procedures for the safe handling of controlled products contained in (a) through (e).
  2. Material safety data sheets are required for controlled products contained in (a) through (e) unless the controlled product is an intermediate undergoing further reaction.

Placard Identifiers

When is the employer permitted to use a placard instead of supplier or workplace labels?

The employer is allowed to post a placard to meet the labelling requirements of these regulations in three circumstances,

  1. if the controlled product is not in a container,
  2. if the controlled product is intended for export, or
  3. if the controlled product is already packaged for sale or distribution, and the containers will be appropriately labelled within the employer's normal course of business, but not immediately.

The placard posted must contain the information normally required on a workplace label, and be clearly visible and legible to workers [section 12 of the regulation].

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