Employees working in hot conditions

Standards on pay for working in hot conditions and the employee's right to refuse

Brian Johnston
Question: Is there a law or standard regarding higher pay during extremely hot daily temperatures for workers such as carpenters, roofers or other employees who work in locations where the temperature gets very hot?

Answer: There is no duty in employment standards legislation in Canada to pay a higher wage for work performed during extremely hot daily temperatures. Employees whose workplace is impacted by such conditions may negotiate such a provision as part of their collective agreement or an employment contract.

Nonetheless, employers who have employees working in such conditions should familiarize themselves with rights and obligations created under occupational health and safety legislation.

The recent case of Cancoil Thermal Corp v. Brad Moon held that “heat” (and not necessarily extreme heat) is a physical agent pursuant to Ontario’s Occupational Health and Safety Act. As a result of heat being considered a physical agent, the inspector had the right to order that a heat stress assessment be conducted at the employer’s expense. Such an assessment could include recommendations for the employer regarding the control of worker exposure to heat stress, fluid intake, a work-rest regimen or other recommendations based on the particular workplace. The inspector also had the authority to order that work stop until the inspection was complete.

The case confirms that working in hot temperatures can raise health and safety concerns for employees. Some of the traditional hazards as a result of working in hot temperatures were found to include heat rash, heat cramps, heat exhaustion and heat stroke.

Occupational health and safety legislation provides the employee with certain rights which may be invoked due to hot temperatures.

For example, Ontario’s Occupational Health and Safety Act provides that employees may refuse to do work where they have reason to believe it is likely to endanger their health and safety or that of someone else. This refusal may continue until remedial action is taken or the matter is investigated and the employee is advised to return to work. The act further states an employee is entitled to compensation equal to that which they would have received had they continued to perform their normal work. The employer has the right to reassign the employee to do different work, but the employee must be paid at their rate for normal work.

Therefore, the employer is not obligated to pay a higher rate of pay for working in extremely hot temperatures. However, an employee may have the right to refuse to perform the work and still be compensated at their normal rate of pay.

For more information see:

Cancoil Thermal Corp v. Brad Moon [2007] O.L.R.B. 1207-06-HS (Ont. Lab. Rel. Bd.).

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected].

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