Tuesday, October 17, 2017

Excluding domestic servants and home workers from safety laws

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.

 -- Bob Barnetson

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