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FAQs: Definition of “Worker” in the Occupational Health and Safety Act

Unpaid students, learners and trainees who are workers under the Occupational Health and Safety Act (OHSA) have the same duties and rights as paid workers. For example, they have to work in compliance with the OHSA and regulations, operate equipment safely, and report any hazards or contraventions of the OHSA or regulations to the employer or supervisor. They also have the right to know about workplace hazards and the right to refuse unsafe work. All workers, including unpaid students, learners and trainees, must complete the basic training required by Ontario Regulation 297/13 (Occupational Health and Safety Awareness and Training).

Placement employers have the same duties to protect the health and safety of unpaid students, learners or trainees who are workers under the OHSA as they do to protect their paid workers. For example, a placement employer has a duty to provide these unpaid workers with information, instruction and supervision, and to take every precaution reasonable in the circumstances to protect their health and safety.

The Questions and Answers are grouped under these headings:

Readers are encouraged to submit additional questions to the Ministry of Labour at webohs@ontario.ca.

General

Can school boards and post-secondary institutions have agreements with placement employers on how to address occupational health and safety issues that could arise during a student’s or learner’s work placement?

Yes, as long as the workplace parties comply with the OHSA. The OHSA does not prevent school boards or post-secondary academic institutions from having agreements or developing procedures with placement employers that could set out, for example:

  • appropriate types of work for students/learners, including types of work that they are permitted and not permitted to perform; or,
  • procedures for students/learners to raise health and safety concerns with an official at their secondary or post-secondary school; or,
  • steps that a secondary or post-secondary school official could take to address a student’s or learner’s concerns with the placement employer, including exclusion of the student/learner from the workplace until the concern is resolved.

Such agreements or procedures would not relieve any workplace party – employer, supervisor or worker – of their duties or rights under the OHSA.

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Is the placement employer required to provide occupational health and safety training to unpaid students or learners who are workers under the OHSA? Can academic institutions provide such training to students or learners?

The placement employer is ultimately responsible for ensuring that an unpaid student or learner who is a worker under the OHSA has received appropriate information, instruction and supervision as required by the OHSA and regulations. This would include, for example, the mandatory worker awareness training required by Ontario Regulation 297/13 (Occupational Health and Safety Awareness and Training), as well as job-specific training.

The OHSA does not prevent academic institutions from providing general health and safety training, including the mandatory worker awareness training, before students or learners begin a placement. The employer, however, would still have to ensure that any general training provided by another party meets the employer’s training obligations under the OHSA and regulations, and provide job- and workplace-specific information and instruction to protect students’ or learners’ health and safety.

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Are unpaid students, learners and other trainees included in the worker count to determine if a joint health and safety committee is required at a workplace?

Under the OHSA, a joint health and safety committee is required at a workplace if 20 or more workers are regularly employed, or a designated substance regulation applies to the workplace. The term “regularly employed” is not defined in the OHSA but the Ministry of Labour typically considers a worker to be “regularly employed” if the term of the position held by the worker exceeds three months (even if there is staff turnover and no single worker occupies the position for more than three months).

If an unpaid student, learner or trainee, or successive unpaid students, learners or trainees meet the definition of a worker under the OHSA, and fill a position that lasts more than three months, the placement employer should include the position in the “regularly employed” count when determining whether a joint health and safety committee is required.

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How much health and safety training must unpaid students, learners and other trainees who are workers have? Could they have less extensive training than other workers if they have short placements or little activity in the workplace?

The extent of health and safety training required under the OHSA and regulations is related to the type of work performed and the hazards to which a worker is exposed. It is not related to the length of a placement or level of work activity.

The employer’s general duties under the OHSA apply to unpaid students, learners or other trainees who are workers. For example, a placement employer is required to provide information, instruction and supervision to unpaid student workers, appropriate to protect their health and safety; and to acquaint a student or a person in authority over a student with any hazard in the work. The duties with respect to an unpaid student on a short placement are no different than if a paid worker were hired for a short period of time to do the same work.

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How would the right to refuse unsafe work apply to unpaid students or learners who are workers in a hospital/health care setting?

The OHSA gives a worker the right to refuse work s/he has reason to believe is unsafe, and sets out a specific procedure that must be followed in any work refusal.

For some workers, including those employed in hospitals and other health care settings specified in subsection 43(2)(d) of the OHSA, this right is limited if the worker’s refusal would directly endanger the life, health or safety of another person, or if the circumstances giving rise to the refusal are a normal part of the worker’s job. This limited right to refuse unsafe work applies to unpaid students or learners working in a hospital/health care setting in the same way it applies to paid workers.

Nothing would prevent a school board or a post-secondary institution from developing procedures with a hospital employer:

  • under which students/learners are not placed in a situation where a work refusal would directly endanger the life, health or safety of another person;
  • for students/learners to raise health and safety concerns with their placement officers, and for the latter to take steps to address those concerns with the hospital employer, including exclusion of the student/learner from the workplace until the concern is resolved.

These procedures would not relieve any workplace party – employer, supervisor or worker – of their duties or rights under the OHSA.

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Will Workplace Safety and Insurance Board (WSIB) premiums increase for placement employers?

The Workplace Safety and Insurance Act, 1997 (WSIA) sets out its own definition of “worker,” which is not affected by the definition of “worker” in the OHSA.

More information on WSIB coverage

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Secondary School Students/School Boards

Are high school cooperative education teachers who monitor students during their work placements considered supervisors for the purposes of the OHSA?

The OHSA defines a supervisor as a person who has charge of a workplace or authority over a worker. Whether or not someone is a supervisor under the OHSA is an objective assessment that would be made on a case-by-case basis. The determination would be made by a Ministry of Labour inspector based on the facts as s/he finds them in the workplace. A number of factors would be considered when that determination is made, including for example, whether the person:

  • determines the tasks to be done by a particular student worker;
  • directs and monitors how work is performed on an ongoing basis;
  • decides on and schedules hours of work;
  • deals directly with student workers’ occupational health and safety concerns or complaints.

If a high school co-op teacher attends a placement employer’s workplace once every three or four weeks to ensure that a student is developing the proper practical skills, that teacher would likely not be considered a supervisor under the OHSA.

More information about the definition of supervisor under the OHSA is available.

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Do school boards and cooperative education teachers have additional duties to protect the health and safety of high school co-op students as a result of the expanded definition of “worker” in the OHSA?

The inclusion of unpaid high school co-op students as workers under the OHSA means that the employers at whose workplaces these students are placed have duties to protect the students’ health and safety just as if they were paid workers. If a high school co-op student’s work placement is in a school, then the school board operating that school is the student’s placement employer with all the associated responsibilities. If a school official is considered a student’s supervisor for the purposes of the OHSA, the school board is required to ensure that the official is a “competent person” as defined in the OHSA, and has received the supervisor awareness training required by Ontario Regulation 297/13 (Occupational Health and Safety Awareness and Training).

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If an unpaid high school co-op student is injured while working in a placement, who is responsible under the OHSA?

Under the OHSA, the employer has the greatest responsibility for health and safety; however, other workplace parties also have responsibilities. Depending on the circumstances, responsibility for student health and safety may be shared by:

  • the placement employer who has direct control over workplace conditions, and
  • a person appointed as a supervisor by the placement employer, who may direct the work of unpaid students as well as paid workers.

In any investigation of an injury to a student who is a worker under the OHSA, a Ministry of Labour inspector would determine how to attribute responsibility, based upon the facts observed in the workplace.

A placement employer must report an incident to the Ministry of Labour and/or other workplace parties as set out in section 51 or 52 of the OHSA. Learn more about reporting.

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Are high school co-op students subject to the minimum age requirements set out in various regulations under the OHSA?

Yes. An unpaid high school student participating in a work experience program authorized by the school board operating the student’s school is subject to the minimum age requirements set out in the OHSA’s regulations. For most types of work, the minimum age to work in Ontario is 14 but some regulations specify a higher minimum age. Specifically, the minimum ages for various types of work or workplaces in Ontario are:

  • Stores, offices or arenas: 14 years
  • Factories or repair shops: 15 years
  • Construction: 16 years
  • Logging operations: 16 years
  • Surface mines (excluding working face) and mining plants: 16 years
  • Window cleaning: 18 years
  • Underground mines and working face of surface mines: 18 years

Note: In a restaurant, the kitchen/food preparation area is considered a factory, where the minimum age to work is 15 but the dining area/cash register is considered a shop, where the minimum age to work is 14.

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What are the responsibilities of a school board regarding the health and safety of a student teacher working at an elementary or secondary school?

A student teacher working at an elementary or secondary school for no monetary payment under a program approved by a post-secondary institution is considered a worker under the OHSA. The school board operating the school at which the student teacher is placed is the employer and has all the same duties to protect the health and safety of the student teacher as it does to protect its paid workers. If a school official is considered a student teacher’s supervisor for the purposes of the OHSA, the school board is required to ensure that the official is a “competent person” as defined in the OHSA, and has received the supervisor awareness training required by Ontario Regulation 297/13 (Occupational Health and Safety Awareness and Training).

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High school students must complete 40 hours of community involvement (e.g. volunteering at a food bank) as a requirement for graduation. Are these students considered workers under the OHSA?

No, provided the community involvement is not part of an authorized work experience program, and the students are not paid, they are considered volunteers and are not captured by the definition of a “worker” in the OHSA.

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Are students participating in the Take Our Kids to Work program considered workers under the OHSA?

No. Grade 9 students participating in the Take Our Kids to Work program are visitors or guests at a workplace. They are observers and are not performing work or supplying services in a work experience program authorized by a school board.

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Persons in Post-Secondary School Programs

Are faculty members at post-secondary institutions who monitor students during their work placements considered “supervisors” for the purposes of the OHSA?

The OHSA defines a supervisor as a person who has charge of a workplace or authority over a worker. Whether or not someone is a supervisor under the OHSA is an objective assessment that would be made on a case-by-case basis. The determination would be made by a Ministry of Labour inspector based on the facts as s/he finds them in the workplace. A number of factors would be considered when that determination is made, including for example, whether the faculty member:

  • determines the tasks to be done by a particular student worker;
  • directs and monitors how work is performed on an ongoing basis;
  • decides on and schedules hours of work;
  • deals directly with student workers’ occupational health and safety concerns or complaints.

If a college or university faculty member provides direct and ongoing supervision of a student at a placement employer’s workplace, that person may be a supervisor under the OHSA. If a post-secondary institution determines a particular cooperative education position to be supervisory, the institution, as the employer, would have to appoint a “competent person” (as defined in the OHSA) to that position and ensure that the person receives supervisor awareness training as required by Ontario Regulation 297/13 (Occupational Health and Safety Awareness and Training).

More information about the definition of "supervisor" under the OHSA is available.

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How would the right to refuse unsafe work apply to a student teacher in a work placement at an elementary or secondary school?

The Teachers Regulation (R.R.O. 1990, Regulation 857), made under the OHSA, limits a teacher’s right to refuse unsafe work if doing so would place the life, health or safety of a pupil in imminent jeopardy. This regulation applies only to teachers as defined in the Education Act. A student teacher is a worker under the OHSA but may or may not be a teacher as defined under the Education Act.

Under the Education Act, “teacher” means a member of the Ontario College of Teachers and includes those who have a General Certificate of Qualification and Registration and those who have a Transitional Certificate of Qualification and Registration issued by the college. The college issues a Transitional Certificate of Qualification and Registration to the small number of student teachers who have completed the first session of a multi-session program.

A student teacher in a work placement at an elementary or secondary school who is a member of the Ontario College of Teachers has a limited right to refuse work (as set out in Regulation 857, Teachers) if doing so would place the life, health or safety of a pupil in imminent jeopardy.

A student teacher who is not yet a member of the Ontario College of Teachers has the full right to refuse unsafe work under the OHSA.

Note: Academic staff and teaching assistants at a university or related institution have a full right to refuse unsafe work since there are no limitations set out under the University Academics and Teaching Assistants Regulation (R.R.O. 1990, Regulation 858).

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If an unpaid student or learner is injured while participating in a work placement approved by a post-secondary institution, who is responsible under the OHSA?

Under the OHSA, the employer has the greatest responsibility for health and safety; however, other workplace parties also have responsibilities. Depending on the circumstances, responsibility for student/learner health and safety may be shared by several parties, which could include:

  • the placement employer who has direct control over workplace conditions,
  • a person appointed as a supervisor by the placement employer, who may direct the work of unpaid students as well as paid workers,
  • a college or faculty member of the student’s academic institution, who attends the placement employer’s workplace and directly supervises and monitors the student or learner on an ongoing basis.

In any investigation of an injury to a student who is a worker under the OHSA, a Ministry of Labour inspector would determine how to attribute responsibility, based upon the facts observed in the workplace.

A placement employer must report an incident to the Ministry of Labour and/or other workplace parties as set out in section 51 or 52 of the OHSA. Learn more about reporting.

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Is an unpaid undergraduate student doing research for a university faculty member a “worker” under the OHSA? What about a graduate student working under a thesis advisor and being paid a stipend by the university?

The unpaid undergraduate student would be a worker under the OHSA if the research being carried out was part of a program approved by the university. The student would not be considered a worker if the research was carried out, for example, on a voluntary basis to assist the faculty member, or as part of an optional course and not under a program approved by the university.

Whether or not a graduate student receiving a stipend is a worker under the OHSA would be an objective assessment made on a case-by-case basis. A Ministry of Labour inspector would make the determination based on the facts as s/he finds them in the workplace. The ministry has generally interpreted “monetary compensation” broadly to include all types of money payments, including stipends and honoraria. If a graduate student is considered a worker under the OHSA, the university would be the student’s employer and have the primary responsibility to protect the student’s health and safety.

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Other

A person taking training to become a swimming instructor certified by the Red Cross or Lifesaving Society of Canada must complete a specified number of volunteer hours teaching swimming under the guidance of a qualified instructor. Is the person a “worker” under the OHSA?

No. The program to become a certified swimming instructor is not a program authorized by a school board or approved by a post-secondary institution.

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Disclaimer: This resource has been prepared to help the workplace parties understand some of their obligations under the Occupational Health and Safety Act (OHSA) and regulations. It is not legal advice. It is not intended to replace the OHSA or the regulations. FOR FURTHER INFORMATION PLEASE SEE FULL DISCLAIMER