Danger as a Normal Condition of Employment – 905-1-IPG-070

Effective Date: October, 2014

1. Subject

Clarification of the interpretation of danger as a “normal condition of employment” as found in paragraph 128(2)(b) of the Canada Labour Code, Part II (Code).

2. Issue

The Labour Program of Employment and Social Development Canada (ESDC) has been asked on several occasions to provide guidance on and clarification of what danger is a “normal condition of employment”.

Subsection 128(1) of the Code states:

“Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that:

  1. the use or operation of the machine or thing constitutes a danger to the employee or to another employee, or
  2. a condition exists in the place that constitutes a danger to the employee, or
  3. the performance of the activity by the employee constitutes a danger to the employee or to another employee.”

Paragraph 128(2)(b) of the Code states:

“An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if

[…] (b) the danger referred to in subsection (1) is a normal condition of employment.”

3. Danger that is a “Normal Condition of Employment”

What it is

  • After the employer has:
    1. identified every hazard; and
    2. eliminated it, reduced and controlled it or provided protective clothing, equipment, devices or materials to employees to protect them against it; then, any danger that remains constitutes a normal condition of employment.
  • The existence of any danger that is a normal condition of employment is not a grounds for a refusal to work. Normal refers to something that is regular, to a typical state or level of affairs, something that is not out of the ordinary.

What it is not

  • Excluded from dangers that are normal conditions of work are those dangers that are not essential characteristics of the work but which depend on the method used to perform the work.
  • A new assessment is required when the circumstances in which a person is exposed to a danger that is a normal condition of employment changes. It cannot be assumed that any danger that exists as a result of the change will remain a normal condition of employment. Examples where new assessments may be required include changes to policy, procedure, training, tools, personal protective equipment, and supervision.
  • A danger that is a normal condition of employment does not include unexpected situations that increase the risk or present a danger to the employee. Such unexpected situations may include ice storms, floods and other natural disasters or unusual weather events.

4. Determining whether a danger is or is not a normal condition of employment for the purposes of assessing a refusal to work

Pursuant to subsection 128(2) of the Code, an employee may not refuse to work if the danger the refusal is based on is a “normal condition of employment”.

Whether the danger is a normal condition of employment is a two part question:

  1. Is there a danger as defined in the Code?
  2. If a danger exists, is the danger a normal condition of employment?

Assessment Principles

For assessment principles relating to “danger” refer to “IPG-062 – Definition of Danger”.

Once it has been determined that a danger exists, the danger is to be analysed to determine whether it is a “normal” condition of employment.

What constitutes “normal” is more than what is reflected in a job description, it also includes but is not limited to consideration of:

  • the environment in which the activity or task is normally performed;
  • the tools and equipment normally provided, including personal protective equipment;
  • the information, instruction, training, and supervision normally provided, given the level of skill and experience of the employee.

Information that may be relevant to the analysis of whether a danger is a normal condition of employment includes, but is not limited to, records related to the performance of the activity including:

  • the employer’s job description or policy;
  • written procedures relating to the task in question including, but not limited to, those established under the hazard prevention program, if any;
  • statements and other input from the work place persons who are knowledgeable about how the task is actually performed. This includes the employee, the employer and the work place committee or health and safety representative; and
  • any other person who has the necessary experience or knowledge to provide the evidence.
  • Assess whether the employer has properly identified, assessed, and protected against (eliminate, reduce, control) all the hazards impacting or related to the health and safety of the employee. The danger that remains constitutes a normal condition of employment.

5. Considerations

(a) Employee

The employee may proactively review with the employer what danger is considered to be a normal condition of employment. The Internal Complaint Resolution Process may be available if there is a dispute. (Section 127.1 of the Code).

Note: Please see the Labour Program Pamphlet 3 entitled “Internal Complaint Resolution Process ” for further guidance on this process.

It should be understood that pursuant to the Code, an employee may not refuse to work under the Code where the danger on which they are basing their refusal is a normal condition of work. However, an employee always has the right to refuse to work under the Code when the employee has reasonable cause to believe the danger is not a normal condition of employment.

(b) Employer

An employer may proactively identify the dangers that are considered to be a normal condition of employment especially for activities that may be the subject of refusals to work. This may assist the employer in identifying and reporting to the employee “every known or foreseeable health or safety hazard in the area where the employee works.” (paragraph 125(1)(s) of the Code). Any danger that is considered a normal condition of employment may also be established when the task is being assessed under the Hazard Prevention Program Regulations (Part XIX of the Canada Occupational Health and Safety Regulations).

Brenda Baxter
Director General
Workplace Directorate
Employment and Social Development Canada – Labour Program