Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI): SOR/2021-143

Canada Gazette, Part II, Volume 155, Number 14

Registration
SOR/2021-143 June 17, 2021

CANADA LABOUR CODE

P.C. 2021-585 June 17, 2021

His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Labour, pursuant to sections 125footnote a, 126footnote b and 157footnote c of the Canada Labour Codefootnote d, makes the annexed Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI).

Regulations Amending the Canada Occupational Health and Safety Regulations (Part XI)

Amendment

1 Part XI of the Canada Occupational Health and Safety Regulationsfootnote 1 is replaced by the following:

PART XI

Confined Spaces

Interpretation

11.01 The following definitions apply in this Part.

class of confined spaces
means a group of at least two confined spaces that are likely, because of their similarity, to present the same hazards to persons entering, exiting or occupying them. (catégorie d'espaces clos)
confined space
means a space that
  • (a) is enclosed or partially enclosed;
  • (b) is not designed or intended for continuous human occupancy; and
  • (c) has a limited or restricted means of entry or exit or an internal configuration that could complicate provision of first aid, evacuation, rescue or other emergency response. (espace clos)
hazardous confined space
means a confined space that, when entered, occupied or exited by persons, presents hazards likely to cause injury, illness or other adverse health effects to persons entering, exiting or occupying it because of
  • (a) its design, construction, location or atmosphere;
  • (b) the materials or substances in it; or
  • (c) any other conditions relating to it. (espace clos dangereux)
hot work
means any work where a flame is used or a source of ignition may be produced. (travail à chaud)

Confined Space Identification

11.02 (1) The employer must, in consultation with the work place committee or health and safety representative,

(2) The employer must ensure that the qualified person provides them with a list of confined spaces including those identified as hazardous confined spaces.

(3) The employer must ensure that there is a sign or marking at the entrance to each confined space indicating that:

(4) The employer must keep a record of all confined spaces referred to in subsection (2) and ensure that it is up-to-date and readily accessible to persons before they enter those spaces. The employer may either keep the record in the work place or keep a centralized record of confined spaces in respect of several work places in one work place.

(5) If it is likely that an employee will enter a confined space that has been determined not to be a hazardous confined space in order to perform work for the employer, the employer must establish procedures with respect to safe entry and exit as well as person-check and emergency response systems to ensure the continued safety of employees.

Hazard Assessment

11.03 (1) If it is likely that a person will enter a hazardous confined space in order to perform work for an employer, the employer must appoint one or more qualified persons to

(2) The employer must ensure that the qualified person or persons record the findings of the assessment in a signed and dated report to the employer that specifies the following:

(3) The employer must make a copy of the report available to the policy committee, if any, and the work place committee or the health and safety representative.

(4) Subject to subsection (5), the employer must ensure that the report and the list made under subsections (2) and 11.02(2) respectively are reviewed by a qualified person at least once every three years. However, if there is reason to believe that the conditions inside a confined space have changed with respect to the last hazard assessment, due to changes to the structure, intended use or immediate surrounding area of the space or due to information about the space regarding a potential new hazard, the employer must ensure that the space is reassessed and treated in accordance with the new findings.

(5) If a confined space has not been entered in the three years preceding the time when the assessment referred to in subsection (2) should have been carried out and no entry is scheduled, the assessment need not be carried out until it becomes likely that a person will enter the confined space in order to perform work for an employer.

Confined Space Procedures

11.04 (1) Every employer must — after considering the report made under subsection 11.03(2) in consultation with the policy committee, or, if there is no policy committee, the work place committee or the health and safety representative — establish procedures, with the date when they are established specified in them, that are to be followed by a person entering, exiting or occupying a confined space assessed under subsection 11.03(1).

(2) The procedures apply based on whether the confined space is listed as a confined space or a hazardous confined space under subsection 11.02(2) and take into account the report made under subsection 11.03(2). The procedures include

(3) If an entry permit system is required, the employer must ensure that it specifies the length of time that each permit is valid, and require that a record be made of

Verification Before Entry in and During Occupancy of Hazardous Confined Space

11.05 (1) The employer must ensure that no person is granted access to a hazardous confined space unless the employer has first appointed a qualified person to

(2) The employer must ensure that the qualified person makes certain that any equipment used to test the atmosphere inside a hazardous confined space is used, calibrated and maintained in accordance with the manufacturer's instructions.

(3) The employer must ensure that the qualified person sets out the results of verifications carried out in accordance with subsection (1) in a signed and dated report to the employer that specifies the test methods applied, the results of the tests and of the continuous monitoring, the test equipment used and any failure of the test equipment, control devices or systems.

(4) The employer must

Emergency Procedures and Equipment

11.06 (1) If conditions in a hazardous confined space or the nature of the work to be performed in a hazardous confined space are such that the requirements set out in subsection 11.05(1) cannot be complied with at all times when a person is in the hazardous confined space, the employer must

(2) The employer must ensure that one of the persons referred to in paragraph (1)(f)

(3) The employer must ensure that every person granted access to a hazardous confined space has at their disposal the appropriate emergency procedures set out in paragraphs 11.06(1)(a) and (b) and that they follow those procedures.

(4) The employer must ensure that every person entering, exiting or occupying a hazardous confined space referred to in subsection (1) wears an appropriate safety harness that is securely attached to a lifeline that

Record of Emergency Procedures and Equipment

11.07 (1) If a person is about to enter a hazardous confined space under circumstances such that the requirements set out in paragraph 11.05(1)(a) cannot be complied with, the employer must ensure that the qualified person referred to in paragraph 11.06(1)(d), in a signed and dated report to the employer,

(2) The employer must ensure that the report made under subsection (1) and any emergency procedures specified in it are explained by the qualified person to every employee who is about to enter a hazardous confined space. Every employee who has received the explanation must sign and date a copy of the report to acknowledge that they have read it and that it has been explained to them.

Provision and Use of Equipment

11.08 (1) The employer must provide

(2) The employer must ensure that every employee who enters, exits or occupies a hazardous confined space follows the procedures established pursuant to subsection 11.04(1) and uses the protection equipment specified under paragraphs 11.03(2)(a) and (b).

(3) The employer must ensure that

Closing off a Confined Space

11.09 The employer must ensure that no person closes off a confined space unless a qualified person has verified that no person is inside it.

Hot Work

11.1 (1) Unless a qualified person has determined that the work can be performed safely, the employer must ensure that hot work is not performed in a hazardous confined space that contains

(2) If hot work is to be performed in a hazardous confined space that contains concentrations of flammable or explosive materials in excess of the concentrations set out in paragraph (1)(a) or (b),

(3) If an airborne hazardous substance can be produced by hot work in a hazardous confined space, the employer must ensure that no person enters or occupies that hazardous confined space unless

Ventilation Equipment

11.11 (1) If ventilation equipment is used to maintain the concentration of a chemical agent or combination of chemical agents in a hazardous confined space at or below the concentration referred to in subparagraph 11.05(1)(a)(i), or to maintain the percentage of oxygen in the air of a hazardous confined space within the limits referred to in subparagraph 11.05(1)(a)(iii), the employer must not grant access to the hazardous confined space unless

(2) If the ventilation equipment fails, the employee referred to in subparagraph (1)(a)(ii) must immediately inform any person in the hazardous confined space of the failure of the equipment.

(3) If the report referred to in subsection 11.03(2) determines that a hazardous confined space requires continuous ventilation, the employer must ensure continuous atmospheric monitoring while the hazardous confined space is occupied.

Instruction and Training

11.12 (1) The employer must provide every employee who is likely to enter a confined space with instruction and training in

(2) The employer must ensure that no person enters a confined space unless the person is instructed in

(3) The employer must ensure that all persons granted access to a confined space have received instruction and training in accordance with subsection 11.04(1) and paragraph 11.06(1)(a).

Retention of Records

11.13 The employer must keep at their place of business nearest to the work place in which the confined space is located, and make readily available in paper or electronic format,

Coming into Force

2 These Regulations come into force on October 1, 2021, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Labour Program of Employment and Social Development Canada (ESDC) administers the Canada Labour Code (the Code) and the Canada Occupational Health and Safety Regulations (COHSR), which establish the regulatory framework for occupational health and safety in workplaces under federal jurisdiction. Approximately 8% of the Canadian workforce is under federal jurisdiction and includes banking; telecommunications; broadcasting; air, interprovincial rail and road transportation, excluding on-board employers and employees; shipping and related services; grain elevators, feed and seed mills; uranium mining; Crown corporations; and the federal public administration.

Employers under federal jurisdiction have a general obligation to protect the health and safety of every person they employ while they are working. Employers have specific duties regarding each workplace they control and every work activity under their authority. Workplace employees and employers are encouraged to work together to develop practices and policies, and to assess and address occupational health and safety issues effectively and in a timely manner. In addition, employers are required to provide employees with the information, education, training and supervision necessary to ensure their health and safety at work.

Under Part II of the Code, Part XI of the COHSR prescribes occupational health and safety requirements to prevent accidents and injuries while working in confined spaces such as sewers, vaults and tunnels used by telecommunication companies to maintain their infrastructure; boilers, pipelines and tanks used to transport or store hazardous materials; storage tanks, tank cars and tank trucks used in the rail and shipping industries; and shipping holds. Although some of these spaces are easily recognized as confined spaces, others may not be.

Workers enter confined spaces for various reasons, including maintenance (e.g. repair, inspection, cleaning, and unjamming), manufacturing (e.g. transportation equipment manufacturing) or to perform other work (e.g. construction industry). Hazards in confined spaces include oxygen deficiency, asphyxiants, chemical exposure, flammables, poor visibility and biological agents. Occupational risks in confined spaces are often high because of confinement, inadequate natural ventilation, the need to work in isolation, and access, rescue and communication problems.

The unique hazards and contained nature of confined spaces means that the risk of injury and death is higher than that of a regular workplace. In 2018, a death occurred in a confined space, reinforcing the need to update the requirements for managing work in confined spaces.

In 2014, Part XI – Confined Spaces was identified as a priority for review by the Labour Program's Occupational Health and Safety Advisory Committee (OHSAC). The OHSAC, made up of representatives from the Labour Program and employee and employer groups, conducted an in-depth review of Part XI between 2014 and 2017. This review identified three issues, described as follows.

1. Confusion regarding the identification of various confined spaces and employers' responsibilities towards those working in them

Correct identification of confined spaces is critical due to the unique hazards they present. Failure to correctly identify a workspace as a confined space may cause workers to be exposed to hazards that are not obvious, but that exist due to the nature of the space. This can result in severe injury or death. Incorrectly identifying a workspace as a confined space when it is not can cause employers to implement unnecessary controls, leading to costly operational inefficiencies.

2. Certain safety provisions are outdated and not aligned with industry practices and standards

Updated standards and best practices in domestic and international jurisdictions have shown that some federal safety provisions need modernization. In 2016, the CSA Group (formerly the Canadian Standards Association [CSA]) updated and published Management of Work in Confined Spaces (Z1006-16). This Standard provides a comprehensive framework for establishing and maintaining an effective program for the health and safety of employees entering and working in confined spaces. Updates made to the Standard are seen as industry best practices. The current Regulations do not align with this Standard.

3. There is a lack of clarity in the regulatory text

The lack of clarity in the regulatory text makes it challenging for employers and employees to comply with the Regulations.

Objective

The objective of these amendments is to protect the health and safety of employees working in confined spaces by addressing the current shortcomings in Part XI of the COHSR.

Description

The regulatory amendments will accomplish three primary goals, described as follows.

1. Mitigate the risk of injury or death by improving the knowledge surrounding, and the identification of, confined spaces

The Regulations will update the definition of a confined space based on the physical characteristics of the space. The term “confined space” is now defined as a space that

The amendments will also add a new subtype of confined spaces: hazardous confined spaces. These types of spaces include further risk to the health and safety of the person working in it. The term “hazardous confined space” is defined as a confined space that, when entered, occupied or exited by persons, presents hazards likely to cause injury, illness or other adverse health effects to persons entering, exiting or occupying it because of

The amendments will also require the employer to

2. Modernize and strengthen provisions and align them with industry practices and standards

The amendments will

3. Add clarity to promote compliance

The regulatory amendments will provide further clarity by ensuring consistency when referencing other sections of the COHSR and ensuring correct use of new terminology. For example, recent changes to the Policy Committees, Work Place Committees and Health and Safety Representatives Regulations caused “work place committee or health and safety representative” to also include “policy committees.” The amendments will change all references, where appropriate, in Part XI to say, “… the policy committee or, if there is no policy committee, the work place committee or the health and safety representative . . . .”

The regulatory amendments will also clarify the requirements for the qualified person's hazardous assessment report and the requirement for employers to maintain records of all employees who receive instruction and training regarding confined spaces.

Regulatory development

Preliminary consultation

Between 2014 and 2017, the Occupational Health and Safety Advisory Committee (OHSAC) was used to engage employer and employee representatives through a series of consultations.

Stakeholders identified Part XI of the COHSR as a priority for regulatory review. Stakeholders raised several issues, including aligning the definition of “confined space” with the CSA Group definition, shortening the time period for a review of the hazard assessment, and increasing the required oxygen levels in confined spaces. A working group was struck with the purpose of examining and recommending regulatory amendments. These recommendations were then incorporated into the amendments, and the Labour Program finalized its policy approach based on best practices in industry and other jurisdictions, both domestic and international. The primary objective of the proposed regulatory amendments is to improve health and safety standards by addressing hazards to prevent accidents and injuries in confined spaces under federal jurisdiction.

Through discussions with OHSAC members, consensus was achieved on the proposed amendments to the Regulations. OHSAC members include the following employer and labour representatives: National Airlines Council of Canada, BC Maritime Employers Association, Federally Regulated Employers – Transportation and Communications (FETCO), Canada Post, Canadian Trucking Alliance, Treasury Board Secretariat, Canadian Labour Congress, Public Service Alliance of Canada, Canadian Union of Postal Workers, Canadian Union of Public Employees, Unifor, and International Longshore and Warehouse Union.

The following stakeholders, including members of employer and employee groups represented on the OHSAC, were given the opportunity to provide input as part of a broad preliminary consultation:

Canada Gazette, Part I, consultations

The proposed regulatory amendments were pre-published in the Canada Gazette, Part I, on June 20, 2020, followed by a 60-day comment period. The Labour Program received comments from seven organizations. Stakeholders requested some minor technical amendments but were generally supportive of the proposal.

The Labour Program did not receive any comments on the cost-benefit analysis portion of the Canada Gazette, Part I, consultations.

The following organizations provided comments on the proposed regulatory amendments:

The following summarizes the key comments and the Labour Program's responses.

A. Clarification

Stakeholders requested clarification of terminology used in the Regulations. Additional clarification on the regulatory requirements will be provided in guidelines accompanying the final Regulations.

B. Confined Space Procedures (section 11.04); Instructions and Training (section 11.12)

Stakeholders raised concerns regarding a federally regulated employer's obligations towards contractors as they relate to confined spaces procedures, instruction and training and as they relate to issues with equipment and maintenance certification.

The federally regulated employer is responsible for any person granted access to the employer's worksite, including provincially regulated contractors, and as such, contractors must be protected by the same emergency procedures as employees. Further details on an employer's obligations towards provincially regulated contractors will be provided in guidelines accompanying the final amendments.

C. Provision and Use of Equipment (paragraph 11.08(1)(a))

One stakeholder believes that training as well as instruction on the inspection, use, and care of equipment should be added to paragraphs 11.08(1)(a) and 11.08(1)(b).

No changes are made to the final Regulations because training on the inspection, use and care of equipment is already required under section 11.12 and under the protection equipment requirements in subsection 12.2(1).

D. Identification and Signage (subsection 11.02(3))

One stakeholder suggested adding signs on or next to the confined space saying (i) “Confined space” or “Confined space – Authorized personnel only”; and (ii) “Hazardous Confined space” or “Hazardous Confined space – Authorized personnel only – Entry permit required.”

Adding signs to identify each confined space as a confined space would ensure the safety of everyone in the workplace and help to prevent accidents arising from mistakenly entering a confined space. The final Regulations reflect this suggestion in subsection 11.02(3).

E. Identification of Confined Spaces (subsection 11.02(1))

One stakeholder suggested that the initial assessment of the workplace should also be done by a competent person who is able to recognize a confined space based on knowledge, training and experience. The stakeholder is concerned that some less obvious confined spaces may be unintentionally missed. They noted that many employers may hire a consultant to complete the requirement to appoint a qualified person to determine whether the confined space is a hazardous confined space, but it will be based on what is identified in the initial survey.

Amendments to the definitions in the final Regulations are designed to make the identification of confined spaces clearer and simpler. This will help the workplace committee carry out this requirement. Furthermore, employers have the option to hire a qualified person to conduct the workplace survey if they are not confident in their assessment. Requiring employers to hire a qualified person for each workplace assessment would place an unfair burden on employers, particularly when they are capable of conducting the survey through the workplace committee. No changes have been made to this requirement in the final Regulations.

F. Record of Emergency Procedures and Equipment (section 11.07 and subsection 11.03(2))

One stakeholder requested that the requirements for a record of confined spaces be more specific and include (i) description of the space (name, number or other); (ii) location; and (iii) whether the space is a confined space or a hazardous confined space. The stakeholder also questioned the use of “record” instead of “inventory.”

Employers should have flexibility on how they maintain their records. However, further information regarding the records of confined spaces will be included in guidelines accompanying the final amendments. Moreover, it is common practice in federal regulations to use the term “record” instead of “inventory.” Therefore, no changes are made to subsection 11.03(2) in the final amendments.

G. Hazard Assessment (subsection 11.03(3))

One stakeholder raised a concern that, based on the way subsection 11.03(3) was written, there would be no requirement to make the report available to the Workplace Committee or Health and Safety Representative if it was only given to the Policy Committee.

Subsection 11.03(3) of the amended Regulations has been changed to address this. The obligation to make the report available to both the policy committee and the workplace committee or the health and safety representative is addressed.

H. Verification Before Entry of Hazardous Confined Space (subsection 11.05(1))

Stakeholders raised concerns that this paragraph implies that the conditions inside a hazardous confined space are static, and that if a person encounters danger inside the space it had to have been there when they entered. However, it is possible for conditions in a hazardous confined space to change once a person has entered it. Under the previous proposed wording, there would be no way to know if the hazard emerged after the person entered the confined space or if it was present at the time of entry. As such, the final Regulations are amended to require real time monitoring in the assessment in subsection 11.05(1).

Modern treaty obligations and Indigenous engagement and consultation

The Regulations will not change which workplaces are under federal jurisdiction and are subject to labour provisions under the Code. Indigenous bands and band councils are generally subject to the Code, including those with modern treaties or self-government status.

The Code continues to apply to modern treaty areas, as this area of jurisdiction has been “carved out” of areas of jurisdiction in treaties, meaning that it is not an area of jurisdiction for which a modern treaty holder would create their own legislation. Modern treaty holders would therefore apply the Code to applicable activities in their territory.

Instrument choice

The options considered were maintaining the status quo or amending the existing provisions. Other options, such as policy guidelines or voluntary codes of practice, would not allow for proper enforcement of health and safety provisions to protect workers from the hazards present in confined spaces. Regulatory amendments set out clear requirements for employers to comply with and for Labour Program health and safety inspectors to follow to ensure this compliance.

A regulatory framework regarding working in confined spaces already exists; however, the current Regulations do not reflect industry's best practices and updated standards. Amending the existing provisions would be the best option to ensure enforcement and protection of the health and safety of employees. None of these factors could be addressed via the status quo; therefore, a regulatory option was selected.

Regulatory analysis

1. Mitigate the risk of injury or death by improving the knowledge surrounding, and the identification of, confined spaces

Part XI of the COHSR prescribes the health and safety requirements for employers and employees with respect to working areas that meet the definition of “confined space.” Under the current definition, a confined space must be an enclosed or partially enclosed space, not intended or designed for human occupancy, have restricted means of access or egress, and contain a hazard. If any one of these requirements is misapplied, then the space may not be properly identified as a confined space, which means that adequate controls may not be in place, or employers may be implementing controls that are not necessary. The amendments will change the definition of “confined space” to simplify the identification process, and will modernize safety requirements to reflect current best practices for safety in the workplace.

Succinctly defining hazardous confined spaces will allow for employers to properly implement controls to prevent injury, illness, or other adverse health effects to workers entering those spaces.

2. Modernize and strengthen provisions and align them with industry practices and standards

The amendments will require that a confined space be reassessed whenever there is a change to the structure, the intended use, or the immediate surrounding area of the space or due to information about the space regarding a potential new hazard. These changes may alter the conditions of working in a confined space, which could mean that the implemented safety procedures may no longer be appropriate and would need to be updated.

The amendments will require employers to maintain a record of non-hazardous confined spaces and hazardous confined spaces, and ensure that it is kept current and accessible to workers prior to entering those spaces. The presence of a record of confined spaces will enable the qualified person to perform assessments for each confined space and facilitate the grouping of confined spaces as hazardous or non-hazardous. The confined spaces can then be classified into groups that have common characteristics and properties, which will ease the development of appropriate safety procedures applicable to these groups. Employers need to be aware of the workspaces they control and which employees have access to these spaces, in order to design entry procedures and emergency procedures based on the class of confined space.

The amendments will provide flexibility to allow more than one qualified person to perform the assessment. Employer stakeholders requested that the Regulations allow multiple qualified persons to carry out the assessment, depending on their experience or expertise. The amendments will also bring the requirements for the minimum level of oxygen in the air from 18% to 19.5%. This requirement will bring the federal jurisdiction in line with all other jurisdictions in Canada, add greater specificity and enhance safety.

The amendments will also require employers to develop emergency procedures for all hazardous confined spaces, which will provide flexibility in emergency rescue operations. Employers' obligation towards those granted access to hazardous confined spaces will also be expanded to include contractors and require employers to share their emergency procedures with them. All persons granted access must also have received training on safely working in and occupying hazardous confined spaces. These changes will reduce the risk of injury and fatality to all those entering hazardous confined spaces and will ensure that the training regarding hazardous confined spaces and the equipment used in these spaces are up to date and protect persons granted access as much as possible.

3. Add clarity to promote compliance

The regulatory amendments will provide increased clarity through consistent referencing and use of new terminology. They will also clarify the requirements for the qualified person's hazardous assessment report and the requirement to maintain records of all employees who receive instruction and training regarding confined spaces. This will allow for a much clearer reading of the Regulations and a better understanding of the requirements laid out within them.

Benefits and costs

Derivation of costs

The Department conducted a cost-benefit analysis of the regulatory amendments and found that the section that requires an employer to create and maintain a record of confined spaces would have small resource impacts. Other major changes prescribed in the regulatory amendments are deemed to have no significant impact. These are summarized below.

New requirements for inventories and new hazard assessment requirements

Changes to section 11.02 in the regulatory amendments would require employers to identify all confined spaces in their workplaces, establish a record of all confined spaces, and implement a system to ensure it is kept up to date. In addition, the employer would be required to determine if the confined space is hazardous or non-hazardous, and a section would be added prescribing new requirements to be included in the hazard assessment, including new equipment requirements.

It is estimated that developing the record and updating the hazard assessment with the prescribed new elements would take approximately 1.5 person-hours, on average, for each worksite containing confined spaces, and that the record would require updating on a quarterly basis (estimated at 15 minutes every three months). The opportunity cost for maintaining the record and conducting the assessments, where applicable, is based on the average wage rate, inclusive of non-wage benefits. As a result, in the first year after implementation (2021), the 3 992 worksites containing confined spaces would each have to dedicate 2.25 person-hours to the development and maintenance of the record. In future years, each worksite would have to dedicate one person-hour per year. Total costs are expected to average approximately $155,000 per year and represent the bulk of costs associated with the regulatory amendments, about 82% of average yearly costs.

New training records retention

Paragraph 11.13(1)(c) of the regulatory amendments would require employers to maintain records of all employees who receive instruction and training regarding their regulatory obligations when working in confined spaces. This would apply to new trainees only and would affect approximately 1 600 new employees working in confined spaces annually. It is estimated that each employee record would take about 15 minutes to complete and costs would average about $15,000 per year across the federal jurisdiction for the period 2021–2030. The projected labour force growth of 0.93% and a projected retirement rate of 1.96% was factored into this estimate.footnote 23

New requirements for reassessment of a confined space

Subsection 11.03(4) of the regulatory amendments requires employers to conduct a reassessment of a confined space for hazard identification and risk assessment whenever there have been any changes to the structure, the intended use, or the immediate surrounding area of the space or due to information about the space regarding a potential new hazard. It is estimated that approximately 10% of all worksites containing confined spaces will require reassessment, as they are limited to industries where confined spaces tend to be makeshift structures that may be reconstituted as required, such as in the energy and mining or pipelines sectors. Tanker trucks or rail cars would not be considered makeshift structures in this sense, since they are not likely to be reconstituted for different purposes. It is expected that this new provision would affect an average of approximately 450 worksites per year. Costs are estimated to average approximately $14,800 per year across the federal jurisdiction.

New requirement regarding atmospheric pressure level

Subparagraph 11.05(1)(a)(iii) of the regulatory amendments prescribes that the percentage of oxygen in the air in the hazardous confined space be not less than 19.5% by volume and not more than 23% by volume, at normal atmospheric pressure. This was deemed to have no significant impact. Costs would be minimal as the equipment required would already have been purchased and testing already occurs. This change would align the Regulations with the best practices of other jurisdictions.

Emergency procedures for all confined spaces

Subsection 11.06(1) of the regulatory amendments requires the development of emergency procedures for all hazardous confined spaces, not just those containing atmospheric hazards. It is estimated that this new requirement would affect approximately half of all worksites with confined spaces and require one person-hour of work per year, per affected worksite. Total costs are expected to be around $75,000 in the first year after implementation of the regulatory amendments and average $311 in subsequent years, as only new confined spaces would be affected.

New requirement for continuous monitoring of a confined space

Subsection 11.05(1) of the regulatory amendments adds the requirement of continuous monitoring for hazardous confined spaces where atmospheric conditions could be of concern. The current Regulations only require safety verifications, by means of tests, before entry into the confined space, unless, per subsection 11.10(1), ventilation equipment is currently being used in the confined space, in which case the employer has the choice of either equipping the confined space with an alarm or having it continuously monitored by an employee. Since confined spaces with potentially dangerous atmospheric conditions would likely require ventilation equipment, and that this would be identified in the hazard assessment for the confined space, it is likely that a significant number of employees are already providing continuous monitoring. This section was deemed to carry a small cost, namely the opportunity cost in wages of the employee monitoring the confined space. This cost was not quantified because of lack of data in relation to the number of times employers choose to either equip the confined space with an alarm or provide continuous monitoring, and the number of employees and hours affected. However, given only a small number of worksites would be affected, costs will likely only carry a small impact.

New requirement for atmospheric monitoring

Subsection 11.10(1) of the current Regulations mandates the employer to select one of two options in cases where ventilation is currently being used in a confined space with atmospheric hazards. Either the confined space is equipped with an alarm that is activated automatically and is audible or visible to every person in the confined space if the equipment fails, or the confined space is monitored by an employee in communication with those working in the confined space. Subsection 11.11(3) of the regulatory amendments will add a new requirement where, in cases where an assessment report determines that a hazardous confined space requires continuous ventilation, the employer must ensure continuous atmospheric monitoring while the space is occupied. This subsection was deemed to carry a small cost, namely the opportunity cost in wages of the employee monitoring the confined space. This cost was not quantified because of the lack of data in relation to the number of times employers choose each option and the number of employees and hours affected. However, given that only a small number of worksites will be affected, costs will likely only have a small impact.

New requirement for signage

Subsection 11.02(3) of the regulatory amendments prescribing that signs be placed at the entrance of each confined space will carry a small cost impact. The majority of costs are expected in the first year after implementation of the regulatory amendments, with a total cost across the federal jurisdiction of approximately $59,000. In subsequent years (2022–2030), signs will only be required for new confined spaces, and costs will average only $245 per year in this period. Over time, signage will age and endure damage, in which case the signage will require replacement. As there is no data regarding the number of signs currently in use in the federal jurisdiction, nor the expected number of employers who will opt for the minimal cost alternative of producing signs in-house, it is assumed half of all affected employers (median value between zero and all employers) will opt to purchase signage from third-party suppliers. As a result, purchases from these suppliers will be made for approximately 2 000 worksites in 2021 and around 10 per year for the period 2022–2030. The average price for a range of signs specific to this new regulatory requirement was found to be approximately $19, with an additional $10 in shipping costs per order if purchased online. Given the specialized nature of this type of signage and the limited number of traditional retail providers, it is assumed all employers purchasing signs from third-party providers will do so through online purchases, thus incurring shipping costs. Costs associated with the production and installation of employer-made signs, which could cost less from a materials perspective but more from a labour perspective, and the installation of signs purchased from third-party vendors, are included in the labour costs associated with the new requirement to establish a record of confined spaces. In addition, signs purchased from third-party providers, given the sturdy material used (e.g. vinyl, fibreglass or aluminum) and permanent adhesives included with purchase, are likely to last 10 years or longer.
A breakdown of the costs of the regulatory amendments is presented in the table below.

Table 1: Breakdown of the costs of the regulatory amendments
Cost Annualized value ($) Present value ($) Reason for not estimating the cost
New requirements for inventories and new hazard assessment requirements 160K 1.12M n/a
New training records retention 13K 92K n/a
New requirements reinspection of a confined space 13K 93K n/a
New requirement regarding atmospheric pressure level Not estimated Not estimated The equipment required would already have been purchased and testing already occurs in the baseline
Emergency procedures for all confined spaces 9K 65K n/a
New requirement for atmospheric monitoring Not estimated Not estimated No adequate data available
New requirement for signage 8K 57K n/a
Total 204K 1.43M n/a
Benefits

The definition of “confined space” will simplify the identification of a confined space, as it is based on the physical characteristics of the space. This simplification will allow any employee to be able to determine whether a space is a confined space. Therefore, a person with special qualifications will not be required to identify a confined space. The initial identification, based on physical characteristics, will result in an accurate determination of confined spaces that are potentially hazardous, as well as non-hazardous.

Once a space has been determined to be a confined space, a qualified person, defined in the current Regulations as a person who, because of their knowledge, training and experience, is qualified to perform that duty safely and properly, will then be required to evaluate each identified confined space for the existence of potential hazards and risks, and would establish appropriate safe work procedures for hazardous confined spaces.

The qualified person will then be required to divide the spaces into the two groups: non-hazardous and hazardous. Hazardous confined spaces will include physical restrictions, with the added risk due to a hazard, such as hazardous substances or oxygen-deficient atmospheres. The risk will be mitigated through the implementation of safe work procedures while work is being conducted in the space.

Safe work procedures required to work in non-hazardous confined spaces will be minimal, while procedures to work in hazardous confined spaces will be more complex, depending on the nature of the hazard and its adverse effects on employees.

The regulatory amendments will ensure that employers do not overlook any confined spaces within their workplaces. Employers will be mandated to identify all confined spaces in their workplaces, develop and keep current a record of these spaces, and provide safeguards to employees to ensure they are made aware of the proper equipment to use when entering new confined spaces and when an entry permit is required (by mandating this information in the assessment report). Finally, the regulatory amendments will ensure that all new employees receive the appropriate training for working in confined spaces by maintaining a record of all training received.

The presence of a record of confined spaces will enable the qualified person to perform assessments for each confined space, and facilitate the grouping of confined spaces as hazardous or non-hazardous. The confined spaces can then be classified into groups that have common characteristics and properties, which would ease the development of appropriate safety procedures applicable to groups of them.

Employers need to be aware of the workspaces they control, and which employees have access to these spaces, in order to design entry procedures and emergency procedures based on the class of confined space.

Training has been found in numerous studies to lead to significant reductions in injuries and fatalities. For example, Waehrer and Miller found a 5.73% reduction when fall protection training was provided to employees.footnote 2

Small business lens

There are impacts on small businesses associated with the regulatory amendments. The term “small business” means any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenues.footnote 3Approximately 75% of small businesses affected are in the road transport sector. This is similar to the proportion of road transportation companies for the entire federal jurisdiction and for all employer sizes, which is approximately 79%.footnote 4

The Regulations will affect close to 2 000 small businesses, approximately 90% of the total businesses impacted. This is to be expected, as small businesses make up approximately 95% of all businesses under federal jurisdiction. In terms of the overall cost of the regulatory amendments, a little under half of the total associated costs (48%) will be incurred by small businesses, approximately $767,000 (present value) and $109,000 on an annualized basis. However, costs per small business will be low, as the small businesses affected have, on average, only 1.07 worksites, with an average of just over five employees per worksite. Costs per small business come out to approximately $392 over 10 years (present value), or $56 on an annualized basis. Given that the costs are minimal and that the regulatory amendments have a low impact, no other options were considered to mitigate costs to small businesses. In addition, given these minimal costs and the high risk of injury associated with working in confined spaces, flexibility in these requirements for small businesses under federal jurisdiction is not possible without compromising the health and safety of small business employees working in confined spaces. Results of the small business lens are summarized below in 2020 dollars.

Small business lens summary
Table 2: Total compliance and administrative costs
Cost Annualized value Present value
Compliance costs $13,094 $91,968
Administrative costs $96,349 $676,715
Total cost (all impacted small businesses) $109,443 $768,683
Cost per impacted small business $55.77 $391.70

One-for-one rule

The regulatory amendments include new record-keeping requirements for employers. The one-for-one rule therefore applies to the regulatory amendments, as these requirements are considered a new administrative burden on business.

The regulatory amendments require employers to maintain a record of confined spaces, add new requirements to the hazard assessment report, and require record retention for confined spaces training. The amendments are expected to add approximately $83,266 in additional administrative costs per year to affected sectors, or an increase in annual administrative costs of $38 per business.

Unless otherwise stated, the figures referenced in this section are presented in 2012 dollars and discounted to 2012, as required by the Red Tape Reduction Regulations. The analysis assumes all affected employers (100%) will comply and assumes that approximately 10% of affected employers are already in voluntary compliance with the regulatory amendments. The assumptions used in calculating the administrative costs have been described in the “Benefits and costs” section. Administrative costs are summarized in the table below.

Table 3: Administrative costs
Cost Annualized value
Administrative costs $83,266
Administrative costs per business $37.73

The Labour Program conducted consultations with major employer and employee stakeholders through in-person, teleconference and email consultations. The stakeholders did not raise costs as an area of concern.

Regulatory cooperation and alignment

Provinces, territories, and the federal government each play a role in protecting workers against hazards when working in confined spaces. Outside of the federal jurisdiction, each provincial and territorial government has its own regulatory authority. This means that occupational health and safety programs often differ between provinces. All jurisdictions within Canada have regulations dealing with confined space entry, although they can vary slightly from jurisdiction to jurisdiction. In each province and territory, all confined spaces are considered hazardous unless a competent person has determined otherwise through a risk assessment.

The amendment to the definition of “confined space” will be aligned with the definition used in the regulations of British Columbia, Yukon and Saskatchewan, as the definitions are two-pronged and distinguish between hazardous and non-hazardous confined spaces.

These regulatory amendments include a raised minimum level of oxygen in a confined space, to match all other provincial and territorial jurisdictions.

The regulatory system in the United States contains regulations from both state and federal levels. In general, Canada and the United States have similar occupational health and safety regulations regarding work in confined spaces. The definition of “confined space” will be in line with the two-tier definition used in the U.S. regulations, as well as with the standard set by the American National Standards Institute.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

Issue identification

A gender-based analysis plus (GBA+) assessment was conducted as part of the development of the amendments to Part XI.

The impacts of hazards within confined spaces tend to affect different groups in unique ways. Below, different hazards are discussed and analyzed based on the diverse attributes of workers, including their biological characteristics, gender, race, age, socioeconomic status, and physical capabilities.

Demographic characteristics

On average, workers in industries where confined spaces are present are predominantly male. In 2016, the National Household Survey found that 9 440 male workers identified themselves as working in telecommunications as cable workers compared to 415 female workers in the same field.footnote 5 The number of female workers employed as civil, mechanical, electrical and chemical engineers was similarly low when compared to male workers, with 22 365 female workers in the field, compared to 140 795 male workers.footnote 6 Similarly, workers employed in the trucking industry are also predominantly male, where 303 650 men identified themselves as working as drivers in the sector, compared to 10 980 female workers.footnote 6 Given that confined spaces are found in 75% of the trucking industry, a significantly larger number of male workers are expected to benefit from the regulatory amendments.

Between 2011 and 2015, there were close to 12 000 lost-time injuries occurring in confined spaces across Canada, of which approximately 66% of the injured workers were male and 34% female. For the same period, there were 14 fatalities in confined spaces, of which over 90% of those killed were male. The larger number of male workers in the industry may contribute to this disparity in fatalities.

Due to the higher number of male workers in confined spaces, and the associated higher number of injuries and fatalities, the regulatory amendments are expected to positively affect a greater portion of men. However, all workers in confined spaces will benefit from the amendments.

Data collected by Statistics Canada indicates that the rate of Aboriginal workers who are employed in industries with confined spaces in their workplaces is similar to the rate of non-Aboriginal Canadian workers.footnote 6 The regulatory amendments to Part XI are not expected to have increased impacts on Aboriginal workers.

Atmospheric hazards

Asphyxiation

Workers in confined spaces can experience troubled breathing and are at risk of asphyxiation when oxygen content drops below 19.5% of available oxygen in these spaces.footnote 7 On average, female workers are at greater risk than male workers due to their smaller lung capacity.footnote 8 A larger lung capacity may lower the rate at which symptoms of poor air quality and asphyxiation occur.

Lung capacity also diminishes with age, which poses a greater risk of asphyxiation to older workers. Older workers are therefore more likely than younger workers to struggle when working in confined spaces with reduced oxygen levels.footnote 9

Research also suggests that race may influence lung capacity. For example, white Americans of European descent have been found to have higher lung volumes compared to Americans of African descent.footnote 10 However, other studies also suggest that race does not play a significant role.footnote 11

While some workers may face a greater risk of asphyxiation than other workers within confined spaces, the amendments will reduce the risk of asphyxiation to all workers within these spaces.

Asthma

Increased exposure to airborne toxic agents that may be present within confined spaces, including chemicals and solvents, can trigger asthma attacks in workers with asthma, which, in turn, can affect their ability to work in these spaces. These asthma attacks also put workers at an increased risk for severe negative effects to their health.

Although male children develop asthma in childhood at a higher rate than female children, after adolescence, female adults are more likely to experience asthma at a higher rate than male adults. Due to the hormonal differences between males and females, females are more likely to develop serious asthma, experience asthma attacks, and be hospitalized due to complications from asthma.footnote 11 Female workers in confined spaces who are exposed to toxic agents are more likely to experience asthma attacks and develop serious complications.

Research suggests that race may influence the level of risk for asthma. Like female workers, Aboriginal populations are also more likely to report having asthma than non-Aboriginal populations.footnote 12 Aboriginal workers are at an increased risk of developing chronic symptoms when in confined spaces. In addition, female Aboriginal workers are twice as likely as male Aboriginal workers to develop chronic respiratory diseases such as asthma.footnote 13

By clarifying and strengthening the hazard prevention and mitigation measures, it is expected that the amendments will reduce the risk posed to workers within confined spaces who are at an increased risk for asthma and its potential complications.

Chemical exposure

Workers are at an increased health risk from chemical exposure in confined spaces. Toxic gases present two types of risk: chemical asphyxiation (smothering) and irritation to the respiratory system, the skin and eyes.footnote 14 Risk from chemical exposure can vary based on sex and length of exposure. Female workers exposed to chemicals may have greater health risks, as their skin is on average 25% thinner than the skin of their male counterparts.footnote 15 They are also more likely to be exposed to a larger number of daily care products, such as makeup and cleansing products, and household cleaning agents that contain hazardous substances.footnote 16 Exposure to these chemicals, in addition to chemicals they may be exposed to in confined spaces, puts them at greater risk of developing serious illness or disease, such as cancer. However, on average, females have stronger immune system responses than males.footnote 17 This in turn increases their chances of recovering from an illness contracted while working within confined spaces.

It is expected that the amendments will reduce the risk posed to workers in confined spaces who otherwise may be exposed to hazardous chemicals by requiring stronger hazard prevention and mitigation measures.

Physical hazards

Confined spaces can amplify sounds produced by tools and equipment.footnote 18 Long-term exposure to excessive noise can result in noise-induced permanent hearing loss.footnote 19 The impact of this exposure is greater on older individuals, since hearing sensitivity also declines as people become older.footnote 21Ergonomic hazards may pose risks for persons with limited physical abilities due to the possibility of restricted movement within confined spaces.

While the regulatory amendments may prevent some injuries or illnesses, they will not directly impact workers exposed to these risks.

Biological hazards

Underground confined spaces often contain bacteria from fecal matter and sludge, fungi, or moulds.footnote 8 Exposure to bacteria and viruses within these spaces poses a greater risk for male workers and older individuals due to their comparatively weaker immune system response than that of female workersfootnote 18 and younger workers.footnote 11 The regulatory amendments will strengthen hazard identification, prevention and mitigation, and are therefore expected to reduce the likelihood of exposure to biological hazards.

Socioeconomic considerations

Beyond the hazards directly impacting the health of workers in confined spaces, it is also important to take into consideration their socioeconomic status, which may greatly influence their access to care and ability to recover following workplace illness and injury that occurs in a confined space. For example, Canadians in couple families earn on average twice the amount as lone-parent families.footnote 20 Younger families also earn on average significantly less than older families.footnote 20 Aboriginal people in Canada earn on average 25% less than non-Aboriginal Canadians, with Aboriginal women earning the least — on average 45% less than non-Aboriginal men.footnote 21 The ability of a worker to recover from health consequences caused by working in confined spaces is much lower when they have fewer resources available to them when compared to a worker from a higher-income family. Socioeconomic disparities in Canada affect the likelihood of a worker and their family being able to afford medications, sick leave, and travel for treatment. This can be particularly true for severe health issues such as cancer, infection, and respiratory illness resulting from work in confined spaces. These regulatory changes may therefore reduce the burden on workers and their families who may be at a socioeconomic disadvantage by helping to prevent illness and injury caused by work in confined spaces.

Summary

As discussed, certain physiological factors generally create greater risk for female workers in confined spaces than male workers. The risk is also greater for older workers than workers who are younger. Aside from the risk of complications from asthma to female Aboriginal workers, the risk to workers in confined spaces is not substantially different when accounting for race. Finally, it is important to take into consideration workers' socioeconomic status and their access to resources, which can either increase or decrease the risk to workers' health in addition to the hazards themselves.footnote 22 The regulatory amendments are ultimately expected to reduce the exposure of workers to hazards in confined spaces, and particularly benefit those who are more vulnerable when exposed to certain hazards, as discussed in this analysis.

Implementation, compliance and enforcement, and service standards

Implementation

These Regulations come into force on October 1, 2021, but if they are registered after that day, they come into force on the day on which they are registered.

During the consultation process for Part XI, stakeholders recommended the development of guidelines to accompany the Regulations and help ensure they are understood. Guidelines are currently being prepared and are expected to be published for the coming-into-force date.

The guidelines will complement the amendments by further explaining the new requirements and will assist employers and employees in complying with the amendments.

Compliance and enforcement

The Labour Program's compliance policy outlines the proactive and reactive activities used by delegated officials to ensure compliance. Statutory powers allow delegated officials to enter worksites and perform various activities to enforce compliance with the Code and the COHSR. Enforcement actions may range from the issuance of a written notice to further steps such as the initiation of prosecution.

Contact

Kathaleen Nicholson
Senior Policy Analyst
Occupational Health and Safety Policy Unit
Labour Program
Employment and Social Development Canada
165 De l'Hôtel-de-Ville Street
Gatineau, Quebec
K1A 0J2
Telephone: 819‑654‑4420
Email: kathaleen.nicholson@labour-travail.gc.ca