Unpaid Students, Learners and Trainees
Secondary School Students
Paragraph 2 in the definition of “worker” extends coverage of the OHSA to unpaid high school students who are performing work or supplying services in a work experience program authorized by their district school board. Several different forms of experiential learning are available to high school students to complement classroom learning. These include job shadowing, job twinning, virtual work experience, cooperative education, school-work transition programs and the Ontario Youth Apprenticeship Program.
The intent of paragraph 2 is to capture unpaid secondary school students whose activity at a workplace goes beyond observation of another person and involves the performance of actual work. Placements for students participating in a work experience program can occur at many different types of workplaces, such as a construction project, store, factory, school or hospital.
Persons in Post-Secondary School Programs
Paragraph 3 in the definition of “worker” extends coverage of the OHSA to unpaid post-secondary school students and other unpaid learners who work or supply services as part of a program approved by a post-secondary institution to gain work experience.
Many types of experiential learning programs are provided by post-secondary institutions including, apprenticeships, cooperative education, field experience, mandatory professional practice (e.g., for certification or licensure) and applied research projects. Individuals working or supplying services under one of these programs do not have to be students at the college or university that approved the program, or at any college or university. For example, they could be recent graduates or newcomers to Canada.
Note: Individuals in apprenticeships and post-secondary cooperative education placements are generally paid, and as such, were already covered by the OHSA prior to the addition of paragraph 3 to the definition of “worker.”
Trainees Not Covered by the ESA
Under the ESA, a person who receives training from an employer is generally an “employee” if the skill in which the person is being trained is a skill used by the employer’s other employees. A trainee who is an employee under the ESA must be paid, and as such, would automatically be captured as a worker under the OHSA (i.e., because of paragraph 1 of the definition of worker in the OHSA).
However, not all trainees are considered employees under the ESA. The ESA also sets out that a trainee is NOT an employee if s/he meets ALL of the following conditions.
- The training is similar to training given in a vocational school.
- The training is for the benefit of the person.
- The employer providing the training derives little, if any, benefit from the activity of the person while he or she is being trained.
- The person does not displace employees of the employer providing the training.
- The person is not accorded a right to become an employee of the employer providing the training.
- The person is advised that s/he will receive no money for the time spent in training.
Paragraph 4 of the definition of “worker” in the OHSA extends occupational health and safety coverage to any person receiving training from an employer, but who is not considered an employee under the ESA because all the conditions listed above are met.