Government plan to battle opioid crisis should be on employers’ radar

Employment/Labour /
Ellen Low
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By Tony Poland, LegalMatters Staff • Employers would be well advised to “err on the side of caution” when deciding if they need to comply with the province’s incoming regulation to have opioid antidotes onsite and the training to use them, says Toronto employment lawyer Ellen Low.

Last month, the Ontario government announced that at-risk employers will soon be required to ensure their workplaces have naloxone kits on hand.

According to the government, 2,819 people died from opioid-related causes in Ontario in 2021, up from 366 in 2003. 

“Ontario, like the rest of Canada, is in the middle of an opioid epidemic made worse by a toxic supply of recreational street drugs,” Monte McNaughton, Minister of Labour, Immigration, Training and Skills Development, said in a statement. “That’s why our government is the first in North America to require naloxone kits be accessible in at-risk workplaces by June 1, 2023, to raise awareness for those struggling with addiction, reduce stigma and save lives.”

Naloxone temporarily reverses an opioid overdose

Naloxone can temporarily reverse an opioid overdose and restore breathing within two to five minutes, allowing time for medical help to arrive, the government states.

The government will provide training and the kits free of charge to high-risk workplaces such as construction sites, bars and restaurants.

Low, principal of Ellen Low & Co., says employers will be required to comply with the Ontario Health and Safety Act (OHSA) regulation if they become aware that a worker could overdose on opioids, that they could overdose on the job, and that the risk is posed to a worker.

She says the penalties for failing to comply can be harsh.

“We know that the cost of non-compliance for this and other OHSA obligations has increased,” Low tells LegalMattersCanada.ca. “The fine is now up to $500,000 for an individual or supervisor and up to $1.5 million for a corporation, a director or officer per offence. As well, individuals, directors or officers could be jailed for up to 12 months. Employers would be wise to have this regulation on their radar. Like any OHSA regulation they need to take this seriously.”

She says it will be up to employers to determine if they are required to have the kits.

‘There are three main questions employers need to ask’

“In discerning that, there are three main questions employers need to ask,” says Low. “The first – is the employer aware of a risk of an opioid overdose – and that really has two parts. If an employer becomes aware, or, is reasonably aware, that there is a risk we need to chat about when an employer ‘ought reasonably to know of a risk of overdose.’”

In doing so, if a worker discloses an opioid use issue, “then obviously the employer ought reasonably to be aware that there may be a risk of an opioid overdose,” she says.

“Alternatively, if the employer finds drug paraphernalia in or around the workplace or receives information from someone that leads them to conclude that there is a risk of overdose in the workplace, or if there has already been an overdose in the workplace in the past, then they may reasonably be held to an ‘ought reasonably to know’ standard,” says Low.

Second, the employer next needs to ask if there is a risk of an opioid overdose at the workplace, she says. The employer would not be required to have a naloxone kit if the risk occurs outside the workplace, Low says.

“It narrows the scope a little bit because the risk of the overdose has to be at the workplace where the employee is performing work,” she says.

The employer would next have to determine what is meant by “risk to a worker,” Low says.

Definition of worker is broader under OHSA

“Keep in mind that the definition of a ‘worker’ under the Occupational Health and Safety Act is consistently broader than just employee or even contractor,” she says. “Employers need to remember that the OHSA definition includes students, interns and contractors, both independent and dependent.

“Interestingly enough, the requirement to have a naloxone kit would not apply to any sort of nonworker though, such as a customer or client who may be at risk of an opioid overdose.”

If, after answering those questions, the employer determines there is a workplace risk they must not only get a kit but provide the necessary training on how to recognize an opioid overdose, how to use the naloxone and acquaint the worker with any hazards related to the administration of naloxone, she says.

The province has pledged to provide free nasal spray naloxone kits to at-risk businesses through the Workplace Naloxone Program and training to equip staff with the tools to respond to an overdose.

Employers should keep a record

Even if a workplace determines it is not at risk through its own self-assessment, Low recommends that employers take the time to answer the three questions, in writing, and keep those answers on file to prove they did their due diligence in the event of an inspection by the Ministry of Labour.

“If employers answer those questions and determine there is no risk of an overdose to an employee in that workplace, that would be a legally defensible position to not having the kits,” she says.

If there is a risk, the employer must then turn their mind to what they need to do, how to do it and what happens if they fail to comply with the legislation once it takes effect in June, says Low.

“If you are an employer who is unsure whether you need a naloxone kit remember, they are free,” she says.  “Even if you come to the conclusion that you do not have an at-risk workplace, you will be prepared just in case. It is better to err on the side of caution so it might make sense to get a kit and designate someone for training.

“If you have any concerns about whether your workplace requires naxalone kits, speak with an employment lawyer”