Employers will have to respond to climate change. Their lawyers need to prepare them for that.
It's been a record-breaking summer in Canada – but you'd be hard-pressed to find anyone who's had to work outside, in a hot kitchen or a manufacturing plant, cheering about it.
For months now, swaths of the country have been covered in smoke as thousands of wildfires burn. Nova Scotia saw the largest in its history, and Canadian officials say this fire season is the worst ever.
Then there's the heat. July was the hottest on record, which prompted UN Secretary-General António Guterres to declare, "the era of global boiling has arrived."
The heat and the smoke have put climate change front and centre, and posed real risks to those who have had to toil in it.
In August, the Ontario government proposed new stand-alone heat stress regulations under the Occupational Health and Safety Act (OHSA) to protect workers in extreme temperatures against heat-related illnesses. In its proposal, the government said heat stress is a significant cause of occupational illnesses that can lead to death, noting that "extreme heat events are a growing health risk to workers in Ontario."
Under the OHSA, employers have a general duty to take reasonable precautions to protect workers, including from hazardous thermal conditions. But there are no maximum or minimum temperatures set out.
The proposed regulations would require workplaces to comply with heat stress exposure limits for light to very heavy workloads. Employers must also implement measures to control heat exposure and educate workers to recognize heat-related illnesses.
Lai-King Hum, founder of Hum Law in Toronto, which focuses on workplace and employment law, says the regulations are "a great thing" in an "alarming" time of climate change.
She compares our era to the Industrial Revolution, during which we had to learn how to keep people working with machinery safe from accidents. Most occupational health and safety acts now draw on those decades of experience with protective gear requirements and practices, regulations and workplace standards.
"Now it's a different revolution," Hum says. "And we have to think about how we deal with it."
While most Canadian jurisdictions have guidelines in place around heat and wildfire smoke, Hum says specific regulations will help employers, especially small ones without the means to get legal advice, determine 'what does that mean in my workplace?'
Sydney Lang, a labour lawyer at Cavalluzzo in Toronto, says that specificity is why many workers' groups have called for heat stress regulations to protect themselves better. In California, heat safety standards reduced heat-related injuries and illness by 30%.
She says it's been a difficult summer for migrant workers in Ontario, as even in extreme heat and smoke, they're expected to work the fields and greenhouses to meet deadlines with few rest periods. They start before the sun rises and work until after it sets.
Extreme heat can make workers more vulnerable to toxic chemical compounds and increase the toxicity of pesticides. If PPE is provided, it can raise the risk of heat-related injuries.
Agricultural workers aren't protected under Ontario's Employment Standards Act to the same extent as other workers, which presents challenges for rest periods.
"If you're a migrant worker, your status is tied to your work. A lot of workers live where they work, in bunkhouses, so there's always the risk that if you complain about health and safety issues, you could be terminated," Lang says.
However, most migrant workers fall under the OHSA, where the heat regulations would live, so Lang says employers will have to take them seriously if they're enacted.
Jodie Gauthier, a labour and human rights lawyer with Black Gropper in Vancouver, says employers, who haven't had to consider heat, flooding or wildfire smoke in the past, will have to think more broadly about what constitutes workplace health and safety.
"We're in new territory," she says.
Workers are also involved in every aspect of the climate change response, from firefighters and health care professionals who respond when disasters happen to those who help rebuild in the aftermath and work to prevent further climate impacts.
"I see workers really as the heroes of this moment, and we as a society, and as lawyers have a responsibility to ensure that workers are protected while they're working to protect us," Gauthier says.
Given the unpredictable nature of extreme weather events, she says it needs to become part of the common conversation about how we organize our workplaces and how we prepare. In that respect, the pandemic should serve as a cautionary reminder.
"With climate change, we can see what's coming," she says. "The science is clear, and we can prepare. That's a gift lawyers didn't have with COVID."
She expects to see more of the kind of regulations Ontario is proposing, and says workers and unions need to be at the table for those discussions to ensure they are responsive to what they're experiencing in their workplaces and account for how different workers may be vulnerable to climate impacts.
And while governments and legislatures need to give employers and workers the tools they need to make workplaces safe, employers must also think creatively and put protections in place where regulations are not keeping up.
Hum advises clients who rely on outdoor or manufacturing workers to adjust their work hours to avoid extreme heat. They should also implement regular breaks during hot periods and provide areas to rest and cool down.
Ideally, workplaces should have a heat stress policy. Hum says that most businesses tend to manage issues as they arise through union consultations and health and safety committees. "It may be for the time being that issues can be managed through smaller policies."
But not always, as UPS discovered. Last year, a shortage of air conditioning in delivery trucks and distribution centres, hot as "infernos," prompted workers to prioritize addressing extreme heat during contract negotiations.
Hum warns that employers who fail to prepare for a deteriorating climate situation will expose their business operations to significant risks during extreme weather events. It isn't just that prolonged heatwaves could result in financial strain due to increased air conditioning expenses. There's also the cost of lost productivity, given the heat's impact on cognition and workers' ability to make decisions and be alert.
Employers that don't adapt may struggle to recruit and retain employees and see their business brand suffer.
And yet, there is resistance in Canada's legal community to recognize climate change as something that needs to be addressed more head-on.
Twice, members of the Canadian Bar Association have defeated climate change resolutions, and Gauthier says in British Columbia, two attempts to pass resolutions requiring the Law Society to take more proactive action have also failed. In contrast, the Barreau du Québec adopted a resolution to address climate change in 2022, and the Law Society of New Brunswick agreed to create a climate change task force.
"Maybe after this summer, it will feel a little more urgent," says Lang.
According to Gauthier, some lawyers may dismiss climate as a political matter not relevant to their practice, even though the climate will soon affect every aspect of legal practice. By failing to help clients prepare, lawyers will only contribute to heightening workplace risks while also putting themselves at risk.
"Whatever someone's politics are, that needs to be set aside to deal with circumstances as we face them," she says.
"It's part of our responsibility."