WHMIS and the employer
The Occupational Health and Safety Act (OHSA) and WHMIS Regulation set out the duties of an employer at a workplace where hazardous products are used, handled or stored. In general, an employer is required to:
- ensure that hazardous products are identified (subsection 37(1), OHSA);
- obtain or prepare current SDSs for hazardous products and make those SDSs available to various parties (subsection 37(1) and section 38, OHSA and sections 8-14, WHMIS Reg.);
- ensure that a worker who is exposed or likely to be exposed to a hazardous product receives instruction and training (subsection 42(1), OHSA); and,
- assess all biological and chemical agents that the employer produces for its own use to determine if they are hazardous products (subsection 39(1), OHSA, section 3, WHMIS Reg.).
While the OHSA requires an employer to ensure a hazardous product is not used, handled or stored at a workplace unless prescribed requirements concerning identification, SDSs and worker instruction and training have all been met (subsection 37(3), OHSA), the WHMIS Regulation provides an exception. It permits an employer to store a hazardous product received from a supplier without a label on it, without obtaining an SDS for it, and without providing worker education, while the employer is actively seeking a supplier label and SDS for the product (subsection 5(1), WHMIS Reg.). The employer must notify the Ministry of Labour, Training and Skills Development in writing if, after making reasonable efforts, the employer is unable to obtain a supplier label or SDS (subsection 37(4), OHSA).
Similarly, an employer may store a hazardous product that the employer has produced for its own use, without attaching a label or other identification, without preparing an SDS for it and without providing worker education, while the employer is actively seeking the information needed to prepare a workplace label and SDS for the product (subsection 5(2), WHMIS Reg.).
Labelling and identification
Several factors affect the requirements for labels and identification on a hazardous product including, for example, how it is packaged, the size of the container, whether it has been transferred from its original container, whether it was purchased from a Canadian supplier or imported directly from a foreign supplier, or produced in the employer’s own workplace. The employer’s duties to ensure hazardous products are properly identified are described below. The OHSA prohibits any person from removing or defacing the identification on a hazardous product (subsection 37(2), OHSA).
The supplier label
The employer must ensure that every hazardous product received from a supplier, whether in a container or not, is labelled with a supplier label (subsection 8(1), WHMIS Reg.). If a supplier label is accidentally removed, destroyed or becomes illegible, the employer must replace it with either a new supplier label or a workplace label (subsection 8(3), WHMIS Reg.). See below for information about workplace labels.
The employer is prohibited from altering a supplier label as long as any hazardous product is still in the container received from the supplier (subsection 8(2), WHMIS Reg.).
Exception for small containers
A supplier label may be removed from a container with a capacity of 3 millilitres or less if the label interferes with the normal use of the hazardous product (subsection 8(4), WHMIS Reg.).
Imported hazardous products
An employer who imports and receives a hazardous product for use in its own workplace, either without a supplier label or with a supplier label that does not comply with the requirements of the federal HPR, must attach a label to the product that meets the labelling requirements of the HPR for that product (subsection 8(6), WHMIS Reg.). In effect, the employer must create the equivalent of a supplier label.
Generally, a supplier label must display the name, address and telephone number of the Canadian manufacturer or importer of the hazardous product who operates in Canada (i.e. the
initial supplier identifier as defined in the HPR). However, if the Canadian importer is an employer, importing a hazardous product directly to its own workplace, and only for use in its own workplace, the employer can retain the name, address and telephone number of the foreign supplier on the label and SDS, rather than replacing it with its own contact information. This small exception is provided by the HPR (section 5.9).
Bulk shipments and unpackaged hazardous products
A "bulk shipment" means a shipment of a hazardous product that is contained without intermediate containment or intermediate packaging in,
- a vessel with a water capacity equal to or greater than 450 litres;
- a freight container, road vehicle, railway vehicle or portable tank;
- the hold of a ship; or
- a pipeline (subsection 1(1), WHMIS Reg.).
If an employer receives a hazardous product transported as a bulk shipment or without packaging, without a supplier label, the employer must label the hazardous product or the containers into which it is off-loaded with a label that meets the labelling requirements of the HPR for that product (subsection 8(7), WHMIS Reg.). The employer can use the supplier’s SDS, which must contain all required labelling information, to create a supplier label. Employers have this duty because suppliers are exempt under federal law from providing a label for bulk shipments or unpackaged hazardous products, although some may voluntarily provide one.
There are circumstances where the employer is permitted to use a placard to identify the hazardous product (section 12, WHMIS Reg.). One example would be a bulk shipment or unpackaged hazardous product that is transferred directly into a piping system. Where a placard is used, it must contain the information normally required on a workplace label (clause 12(b), WHMIS Reg.).
Updating the supplier label
If an employer receives significant new data from a supplier about a hazardous product, the employer must use this information to update every relevant supplier label as soon as practicable (subsection 8(5), WHMIS Reg.). This duty applies to any container of the hazardous product in the workplace including past shipments of the product. The employer’s duty complements provisions in the federal HPR that require a supplier to update labels within 180 days of becoming aware of significant new data about a hazardous product.
Significant new data means information about a product that would:
- change its classification in a category or subcategory of a hazard class,
- result in its classification in another class, or
- change the ways to handle it safely.
If a hazardous product is sold during the 180-day grace period, without an updated supplier label, the supplier must provide the buyer (i.e., the employer) with the significant new data in writing and the date on which the data became available. Suppliers are not required to inform past buyers of a hazardous product that significant new data is available.
The employer’s workplace label
A workplace label is a label made by an employer and used only in the employer’s workplace. The information requirements for a workplace label are general and employers have some flexibility regarding language and format but it must contain three items:
- A product identifier identical to that on the SDS for the hazardous product
- meaning it must be the brand name, chemical name, common name, generic name, trade name, code name or code number of the hazardous product.
- Information for the safe handling of the hazardous product
- meaning precautions that the worker must take to minimize the risks of adverse health effects or physical injury. These precautions can be conveyed using pictures, words, pictograms or any other mode of communication. Whatever mode of communication is used, it must be combined with worker education to ensure that the purpose and significance of the information is conveyed to workers.
- A statement that a safety data sheet, if supplied or produced, is available
- For some hazardous products, no safety data sheet will be available; for example, the hazardous products listed in Hazardous products exempt from WHMIS of this guide as partially exempt from the WHMIS Regulation. In such cases, a workplace label would not require any statement regarding a safety data sheet.
Employer-produced hazardous products
An employer who produces a hazardous product in its own workplace must ensure that the product or its container has a workplace label (subsection 9(1), WHMIS Reg.).
There is an exception to this requirement – a workplace label is not required if the hazardous product is packaged for sale or disposition, and it is already, or is about to be, appropriately labelled (subsection 9(2), WHMIS Reg.). An example would be a hazardous product such as household bleach that is in a container, ready for sale or distribution to retail outlets, and is labelled according to requirements in consumer protection legislation.
Decanted hazardous products
In general, if a hazardous product is transferred from the supplier container into another container at the workplace, the second container must have a workplace label (subsection 10(1), WHMIS Reg.).
There are two exceptions. No label is required on a portable container filled directly from a container with a supplier or workplace label:
- if all of the hazardous product in the portable container is required for immediate use (clause 10(2)(b), WHMIS Reg.); or
- if all of the following conditions are met (clause 10(2)(a), WHMIS Reg.):
- the hazardous product is used only by the worker who filled the portable container;
- the hazardous product is used only during the shift in which the portable container was filled; and
- the contents of the portable container are clearly identified.
There is no prescribed form that must be used to identify the contents of a portable container as referred to in 2(iii) above. The ministry recommends as a best practice that the employer use the chemical name, common name, generic name, trade name or brand name of the product to clearly identify the contents of a portable container (i.e. means of clear identification that is understood by workers).
Updating a workplace label
An employer is required to update a workplace label as soon as practicable after significant new data about the product becomes available to the employer (subsection 9(3), WHMIS Reg.).
Identifying hazardous products in piping systems and vessels
When a hazardous product is contained or transferred in,
- a pipe,
- a piping system including valves,
- a process vessel,
- a reaction vessel, or
- a tank car, tank truck, ore car, conveyor belt or similar conveyance.
The employer must ensure its safe use, handling and storage through a combination of worker education and any clear means of identification such as colour coding, labels, placards, piping diagrams, warning signs, etc. (section 11, WHMIS Reg.). The employer can use any means of clear identification as long as it is understood by workers. The education program should also explain procedures for the safe handling of hazardous products contained in (a) to (e).
Note: A safety data sheet is required for a hazardous product contained in a piping system or vessel unless it is an intermediate undergoing further reaction.
The employer is allowed to post a placard to meet the labelling requirements of the WHMIS Regulation if the hazardous product:
- is not in a container,
- is in a container or form intended for export, or
- is already packaged for sale or distribution, and the containers will be appropriately labelled within the normal course of the employer’s business, but not immediately.
The placard posted must contain the information normally required on a workplace label for the hazardous product, and must be clearly visible and legible to workers (section 12, WHMIS Reg.).
Safety data sheets (SDS)
Under the OHSA, employers have a general duty to obtain or prepare a current SDS for all hazardous products present in the workplace, as may be prescribed. More specific requirements are in the WHMIS Regulation.
The supplier SDS
An employer who purchases a hazardous product for use, handling or storage at a workplace must obtain a supplier SDS for the product. Under federal law, it is the supplier’s responsibility to ensure that the SDS for a hazardous product is current and complies with all applicable requirements every time the product is sold. Where a supplier is exempted under federal law from providing a SDS, the employer is not required to obtain one (subsection 17(1), WHMIS Reg.). By definition, a
supplier safety data sheet is one that meets the requirements of the federal HPR (subsection 1(1), WHMIS Reg.).
An employer must notify the Ministry of Labour, Training and Skills Development in writing if, after making reasonable efforts, he/she is unable to obtain a SDS from the supplier (subsection 37(4), OHSA).
Updating a supplier SDS
An employer is required to update the most recent supplier SDS at the workplace as soon as practicable after significant new data about a product is provided by the supplier, or becomes available to the employer in some other way (subsection 17(2), WHMIS Reg.).
Significant new data means information about a product that would change its classification in a category or subcategory of a hazard class, or result in its classification in another hazard class, or change the ways to handle the product safely.
This employer duty complements provisions in the federal HPR that require a supplier to update a SDS within 90 days of becoming aware of significant new data about a hazardous product. If a hazardous product is sold during the 90-day grace period, without an updated supplier SDS, the supplier must provide the buyer (i.e., the employer) with the significant new data in writing and the date on which the data became available. Suppliers are not required to inform past buyers of a hazardous product that significant new data is available.
Alternate SDS permissible
For hazardous products purchased from a supplier, an employer may provide a SDS in a different format, or containing more hazard information than the supplier’s SDS, on two conditions:
- the SDS has no less content than the supplier’s SDS (with the exception of information withheld on the grounds that it is confidential business information); and,
- the supplier’s SDS is available at the workplace and the SDS provided by the employer states that fact (subsection 17(3), WHMIS Reg.).
The employer SDS
An employer who produces a hazardous product for use in its own workplace must prepare a SDS for the product that meets the requirements in the federal HPR for a supplier SDS (subsection 18(1), WHMIS Reg.). An employer must update the workplace SDS as soon as practicable, but not later than 90 days, after significant new data about the hazardous product becomes available to the employer (subsection 18(3), WHMIS Reg.).
No workplace SDS is required for a laboratory sample produced by the employer at the workplace (subsection 18(2), WHMIS Reg.). See Special applications of WHMIS of this guide for more information on laboratory samples.
Disclosure of data source for employer SDS
Subject to any exemptions for confidential business information, the employer must disclose the source of any toxicological data the employer used to prepare the workplace SDS, if asked to do so by an inspector, a worker, a member of a joint health and safety committee, a health and safety representative, or a representative of the workers if there is no joint health and safety committee or health and safety representative (section 25, WHMIS Reg.).
Making SDSs available in the workplace
The OHSA requires the employer to make copies of current SDSs:
- available to all workers (clause 38(1)(a), OHSA);
- readily available to those workers who may be exposed to the hazardous product to which an SDS relates (subsection 38(1.1), OHSA); and
- available to the joint health and safety committee (JHSC) or a health and safety representative (HSR), if any, or a worker representative where there is no joint health and safety committee or health and safety representative (clause 38(1)(b), OHSA).
The employer is required to consult the joint health and safety committee or health and safety representative, if any, on how best to make SDSs available in the workplace, both to workers and to the joint health and safety committee or health and safety representative (subsection 38(6), OHSA). As a general principle, making copies of SDSs (whether paper or electronic) readily available to workers who may be exposed to a hazardous product means that they must be located close to the workers and accessible during each shift. It would not be acceptable, for example, to keep safety data sheets, or a computer terminal for accessing safety data sheets, in an office that is remote from the shop floor or that is locked during the night shift.
The employer is not required to provide paper copies of SDSs. Providing a SDS in an electronic format complies with requirements in the OHSA for making a SDS available at the workplace and to prescribed parties outside the workplace (subsection 38(5), OHSA).
Note: The OHSA provides for distribution of SDSs outside the workplace, to medical officers of health, fire departments and the Ministry of Labour, Training and Skills Development. Members of the public have access to SDSs through their local medical officer of health (section 38).
General information to be provided to workers
An employer must ensure that a worker who works with, or may be exposed to a hazardous product is informed about all hazard information the supplier has provided about the product. In general, this means the information on supplier labels and safety data sheets, but it can also include other information such as letters from the supplier in response to inquiries from the employer. Workers must also be informed of any other hazard information that the employer is or ought to be aware of concerning the product’s use, handling or storage (subsection 6(1), WHMIS Reg.).
Similarly, if a hazardous product is produced in the workplace, the employer must ensure every worker who works with or may be exposed to the product is informed about all hazard information the employer is or ought to be aware of concerning its use, handling and storage (subsection 6(2), WHMIS Reg.).
Information the employer
is or ought to be aware of
To understand what hazard information the employer
is or ought to be aware of the following are considered to be sources of occupational health and safety information that the employer should know about:
- Publications and on-line information from the Canadian Centre for Occupational Health and Safety;
- Publications from the employer’s industry or trade association, or from labour organization(s) representing workers at the workplace; and
- Publications and on-line information from the Ministry of Labour, Training and Skills Development.
There may be sources in addition to those listed above that the employer may wish to consult.
Specific topics to be covered in a worker education program
A worker education program on hazardous materials must include instruction on the following (subsection 7(1), WHMIS Reg.):
- Labels — the information required on a supplier and workplace label and the purpose and significance of the information;
- Modes of identification when used at the workplace instead of labels;
- SDSs — the information required, and the purpose and significance of the information;
- Procedures for the safe use, storage, handling, and disposal of a hazardous product;
- Procedures for the safe use, storage, handling and disposal of a hazardous product when it is in a piping system, a process vessel or conveyance such as a tank car;
- Procedures to be followed when fugitive emissions are present; and
- Procedures to be followed in case of an emergency involving a hazardous product.
Participating in worker education programs
Under the OHSA, an employer has a general duty to ensure a worker
exposed or likely to be exposed to a hazardous product receives and participates in prescribed instruction and training (subsection 42(1), OHSA). The WHMIS Regulation requires a worker
who works with or who may be exposed in the course of his or her work to a hazardous product to receive certain information (section 6, WHMIS Reg.). The following points are intended to guide workplace parties and inspectors when determining which workers should participate in instruction and training:
exposed workeris any worker who uses, handles, stores or disposes of a hazardous product, or who directly supervises another worker performing these activities.
- A worker
likely to be exposedis any worker who could be at risk during:
- the use, handling, storage or disposal of a hazardous product;
- maintenance operations; or
- emergencies, such as an accidental leak or spill.
- Bulk quantities of chlorine are piped above ground from the receiving point at a pulp and paper mill to a storage location on site for use as a bleaching agent. Education about the hazards of chlorine will be required for all workers at the plant who may be exposed.
- A container of benzene at a hospital for transfer to and use in a laboratory. Instruction on the product will be required for the shipper/receiver, the worker who takes the container to the laboratory, lab personnel who handle, store or use the product, workers responsible in event of an emergency with the product and supervisors as appropriate.
- Boxes of welding rods are received at an auto manufacturing plant that employs 600 workers for use by five welders in an assembly area. No workers other than the welders are likely to be exposed to welding fumes. Instruction will be required only for the five welders and supervisors as appropriate.
- In a retail store, education must be provided to those workers who routinely handle large quantities of hazardous and consumer products, and those workers who may be exposed as the result of a spill or other accident (e.g. warehouse staff).
Developing and implementing a worker education program
The worker education program must be developed and implemented for the employer’s workplace and be related to any other training, instruction and prevention programs at the workplace (subsection 7(2), WHMIS Reg.). In developing and implementing the program, the employer must consult the joint health and safety committee or health and safety representative (subsection 42(2), OHSA). There is no specific requirement to keep records of WHMIS training, but an employer may wish to do so to be able to demonstrate to an inspector that workers have received appropriate information and instruction.
The employer must ensure, so far as is reasonably practicable, that the WHMIS education program results in workers being able to use the information to protect their health and safety (subsection 7(3), WHMIS Reg.). The OHSA requires the employer to review the worker’s familiarity with the training and instruction provided at least annually, and in consultation with the joint health and safety committee or health and safety representative, if any (subsection 42(3), OHSA).
It is left to the individual employer to devise the means to determine that a worker has been properly trained and instructed. For example, the employer may ask workers to take some form of written or oral test, or to participate in a practical demonstration of their knowledge. Subsection 7(3) of the WHMIS Regulation includes the phrase
so far as is reasonably practicable because it is recognized the employer may have difficulty at times determining with certainty what workers have learned, due either to language or literacy problems. In general, workers should be able to answer the following questions for every hazardous product they use.
- What are the hazards of this product?
- How do I protect myself?
- What should I do in an emergency?
- Where is the safety data sheet? Where can I get more information?
Reviewing the worker education program
At least once a year, the employer must review the training and instruction provided to workers, in consultation with the joint health and safety committee or health and safety representative of the workplace, if any (subsection 42(3), OHSA). This review must take place more often if:
- the employer, on the advice of the joint health and safety committee or health and safety representative, determines that such reviews are necessary (clause 42(4)(a), OHSA); or
- there is a change in circumstances that may affect worker health and safety (clause 42(4)(b), OHSA).
A change in circumstances could include a change in workplace conditions, or a hazardous product new to the workplace, or new hazard information about a product already in use.
The requirement for a review of the education program does not necessarily mean that workers will need retraining. The review is meant to identify whether updating the education program and/or retraining are necessary. An employer may demonstrate that reviews have been conducted in various ways, for example, through the keeping of records, or in the minutes of a joint health and safety committee meeting.
Paying workers for time spent in training
Although this issue is not directly addressed in any of the WHMIS legislation, it is the Ministry of Labour, Training and Skills Development’s position that time spent at training sessions should be considered work time. Therefore, workers should be paid at their regular or premium rate in accordance with their collective agreement, if any, or the Employment Standards Act, 2000.
Assessing employer-produced products
An employer is required to assess every biological and chemical agent produced for use in the employer’s own workplace to determine if it is a hazardous product (section 39, OHSA and subsection 3(1), WHMIS Reg.). To do this assessment, the employer must go through the same steps that a supplier goes through when classifying products intended for sale to other workplaces. The employer should:
- identify the physical and toxicological properties of the biological or chemical agent;
- consult Parts 2, 7 and 8 of the Hazardous Products Regulations HPR, which set out the definitions and classification criteria relevant to each WHMIS hazard class, category and sub-category;
- compare the properties of the biological or chemical agent to the criteria in the HPR.
If the material meets the criteria of any category or sub-category of a WHMIS hazard class, it is a hazardous product.
The employer’s assessment of any biological or chemical agent must be in writing. A copy of it must be available to workers and given to the joint health and safety committee or health and safety representative (if any), or else it must be given to a representative of the workers if there is no joint health and safety committee or health and safety representative (subsection 39(2), OHSA).
Assistance to the employer to properly assess and classify hazardous products is available from private consultants and from the Canadian Centre for Occupational Health and Safety.
Hazardous products exempt from WHMIS
The WHMIS Regulation provides complete or partial exemptions for various hazardous products, including hazardous waste.
1. Complete exemption
The WHMIS Regulation does not apply to a hazardous product that is:
- wood or a product made of wood;
- tobacco or a tobacco product as defined in section 2 of the Tobacco Act;
- a manufactured article (see What is a manufactured article? of this guide for a definition and examples that illustrate the exemption for manufactured articles) ; or,
- being transported or handled pursuant to either Ontario or federal transportation of dangerous goods legislation (subsection 4(3), WHMIS Reg.).
2. Partial exemption
The WHMIS Regulation has limited application to a hazardous product that is:
- an explosive as defined in the Explosives Act (Canada);
- a cosmetic, device, drug or food as defined in the Food and Drugs Act (Canada);
- a pest control product as defined in the Pest Control Products Act (Canada);
- a nuclear substance that is radioactive and defined in the Nuclear Safety and Control Act (Canada); or
- a consumer product as defined in the Canada Consumer Product Safety Act (Canada) (subsection 4(2), WHMIS Reg.).
While WHMIS label and SDS requirements do not apply to these products, if any of them are used, handled or stored at a workplace, the employer is still required to train workers who are or may be exposed. Various laws govern the sale and use of these products and include labelling and other information requirements. Worker training should result in workers being able to understand the existing product labels and information and using the products safely.
3. Hazardous waste
Hazardous waste is defined as a hazardous product that is acquired or generated for recycling or recovery or is intended for disposal (subsection 1(1), WHMIS Reg.). An employer is required to ensure the safe storage and handling of hazardous waste through a combination of identification and worker education (subsection 4(4), WHMIS Reg.). Any means of container identification would be considered acceptable, as long as it is understood by the workers. Examples include:
- colour coding of hazardous waste containers (in combination with education to ensure that workers will recognize the meaning of the colour);
- a warning sign with the words,
Caution — Hazardous Waste; or
- a warning sign with a picture that conveys the appropriate message.
The employer is not required to provide a label or SDS for containers of hazardous waste.
4. Other exemptions
No workplace label, identification or SDS is required for a fugitive emission, or for a hazardous product that exists only as an intermediate and undergoes further reaction within a process or reaction vessel (subsection 1(2), WHMIS Reg.).
Fugitive emission means a gas, liquid, solid, vapour, fume, mist, fog or dust that meets the following conditions:
- The gas, liquid, solid, vapour, fume, mist, fog or dust escaped from process equipment, from emission control equipment or from a product.
- Workers may be readily exposed to the gas, liquid, solid, vapour, fume, mist, fog or dust (subsection 1(1), WHMIS Reg.).
Fugitive emission refers to a small amount of a hazardous product that is known to escape from process equipment or from emission control equipment where workers may be readily exposed (e.g. a volatile organic compound such as benzene at a chemical plant escaping due to leakage from a valve). It does not refer to an escaped amount that would require any type of containment or clean-up measures to be taken nor does it include emissions to the environment.