The public consultation period for suggestions about changes to the Occupational Health and Safety Act closed yesterday. An issue that did not get much discussion is the household servant exemption set out in Section 1(s)(ii) of the Act.
The Act
currently defines occupation in a way that excludes household servants from its
ambit:
1(s)
“occupation” means every occupation, employment, business, calling or pursuit
over which the Legislature has jurisdiction, except
(ii) work in, to
or around a private dwelling or any land use in connection with the dwelling
that is performed by an occupant or owner who lives in the private dwelling or
a household servant of the occupant or owner;
In practice, this means workers hired by
individual homeowners to perform household duties (regardless of whether they
live in the home or not) have none of the health-and-safety rights accorded to
virtually every other Alberta worker, such as the right to know about the
hazards of their work or refuse unsafe work. And, if they are face hazardous
working conditions or are injured on the job, they cannot seek assistance from
occupational health and safety (OHS) officers.
By contrast, workers hired through an
agency to perform the exact same household duties in a private dwelling are
considered within the ambit of the Act. It is difficult to explain this double
standard except as a political decision (made in 1976) to privilege homeowners
(by exempting them from OHS requirements) at the expense of household servants.
The changes flowing from the Enhanced
Protection for Farm and Ranch Workers Act suggest that the present
government no longer views as appropriate denying basic OHS
protections to whole categories of workers.
The number of workers employed as household
servants in Alberta is unknown. The absence of data about this population
reflects that these workers span several occupational categories, including caregivers
(of varying qualifications), cleaners, and maintenance personnel. And these
workers have a variety of employment arrangements (e.g., some are agency
workers while others are hired individually). Anecdotal reports suggest that
the majority of these workers are female.
A significant identifiable group of
household servants are foreign nationals who provide caregiving to children,
seniors and adults with disabilities. These workers have entered Canada through
the caregiver stream of the Temporary Foreign Worker program or, previously,
through the Live-In Caregiver program. As of December 31, 2016, there were
approximately 2145
foreign caregivers in Alberta.
The literature identifies several hazards
common to household servants, including repetitive motions, lifting heavy
objects, and exposures to various chemical and biological agents. Live-in
caregivers are also exposed to fatigue (due to lengthy shifts) and various
forms of abuse (in part, due to their social isolation).
Eliminating the exclusion of household
servants from the ambit of the OHS Act will provide much needed workplace
protections. Alberta already provides these workers with basic workplace rights
under the Employment Standards Code (excepting
around overtime and maximum hours of work. By contrast, maintaining the
exclusion will disadvantage a predominantly female and often vulnerable group
of workers.
If such a change were to take place, it
would be important for the government to provide resources to homeowners to
assist them with complying with their obligations under the Act (e.g.,
conducting a hazard assessment). It will also be necessary to provide workers
(particularly foreign caregivers) with information about their rights and
support in exercising those rights.
A second group denied OHS rights under s.1(s)(ii) are employees who work from home. Currently, the government interprets "working... in a private dwelling... that is performed by an
occupant or owner who lives in the private dwelling" to include workers employed by others working out of the worker's home.
This reading of the legislation again creates the situation where two workers doing the same work (one at home and one in an office) have different rights. The home worker has no OHS rights while the office worker has a full suite of rights.
This discrepancy also offloads the cost of remediating hazards onto the home worker. My employer, for example, has set out certain safety requirements for home workers as part of our employment (e.g., smoke detectors, CO2 detectors, fire extinguishers in our home office, first aid kits) but refuses to pay for any of these materials. The result is that most home workers have ignored this requirement.
Amending s.1(s)(ii) of the OHS Act to exclude employees performing work in their homes would remedy this situation.
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