Naloxone — a synthetic drug that blocks opiate receptors in the nervous system — has proven to be very effective at reversing opioid overdoses. So much so, that making naloxone readily available has become a key part of Ontario’s strategy to deal with the province’s opioid epidemic.
In furtherance of this goal, some employers in Ontario will be required to maintain naloxone kits in their workplaces as of June 1, 2023. The obligation for employers to do so falls under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”), which can impose very steep penalties on employers who fail to comply. Maximum fines for convictions under OSHA were recently raised from $100,000.00 to $1,500,000.00 for directors and officers of corporations, and up to $500,000.00 for other individuals. Either scenario can also include a term of imprisonment of up to 12 months.
Does your company require a naloxone kit?
As stated above, some, but not all, employers will be required to maintain a naloxone kit in their workplace. So how do you know if that requirement applies to your business? Frankly, the legislation is a little vague on that point. The upcoming amendment to OSHA states that the obligation exists:
“Where an employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace where that worker performs work for the employer, or where the prescribed circumstances exist”.
Thankfully, the province has provided some guidance on when the obligation to maintain a naloxone kit may kick in. Aside from having actual knowledge that opioids are being used in the workplace, an employer should have a naloxone kit if any of the following apply:
- An employee has previously overdosed from opioids at work.
- An employee voluntarily discloses opioid use to the employer.
- An employer finds discarded opioid paraphernalia in the workplace.
- The Joint Health and Safety Committee, safety representative, or union representative bring an opioid use issue to the attention of the employer or request that a kit be provided.
The obligation does not apply where the risk is not related to a worker, and it does not extend to customers, clients, patients, or other members of the public who may be near the workplace.
Employment lawyers can expect to field many naloxone-related legal questions from employers over the coming months. Prime among them will be, “Do I need to have a naloxone kit in my workplace?” In many cases, a better safe than sorry approach will apply. Thankfully, the provincial government is currently providing employers who are required to comply with free naloxone training for up to two workers per workplace and one free nasal spray naloxone kit per workplace. The training program is being provided by the Canadian Red Cross and St. John Ambulance. It is a limited-time program and employers who believe they will need to comply with this new mandate would be wise to make use of the free program now.
How many kits does my workplace need and what else must be done?
If an employer has multiple workplaces, then they may require multiple naloxone kits. An opioid issue in one workplace may not extend to all others, but employers should take caution and clearly record the reasons for their decision if a choice is made to provide naloxone kits in some, but not all of their workplaces.
If it’s been determined that your company requires a naloxone kit or kits, then the employer must also ensure that:
- The naloxone kit is kept in the charge of a worker who has the requisite training, and that it is stored in an area where they will readily be able to access it. This obligation applies whenever workers are present in the workplace, so an employer with multiple shifts will need to have more than one individual trained.
- Proper training has been provided to the individual(s) in charge of the naloxone kit which includes training on recognizing an opioid overdose and administering the naloxone. Naloxone kits come in two types: a nasal spray and an injection. Employers will likely tend to prefer the nasal spray over the risk that an injection is administered improperly.
- They do not disclose any personal information that resulted in the decision to maintain a naloxone kit in the workplace. The potential liability for employers here will be significant and the individual(s) in charge of the naloxone kits likely need only be made aware of a risk or increased risk that a worker could have an overdose. The name of the at-risk individual should not be disclosed.
Employer takeaways
The opioid crisis that exists in many of our communities will not go away overnight. Employers should keep themselves informed of their potential obligations under OHSA. Those who believe that the naloxone kit requirement could apply to their workplace in even the slightest possible way would be wise to ensure they obtain one and receive the necessary training in advance of the June 1, 2023, requirement.
Written by Matt Chapman
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