A draft regulation to impose on Québec employers a duty to take additional measures with respect to the potential presence of asbestos in facilities where their employees work was published in the Gazette officielle du Québec of December 27, 2012, and may come into force in the Spring.
The Regulation respecting occupational health and safety (the « ROHS ») would be amended so as to oblige employers to inspect certain buildings in order to locate and, if need be, repair the heat insulating material and flocking present in those structures. At the present time, the ROHS provides for air quality standards for workplaces, including standards governing the concentration of respirable asbestos fibres, as well as an obligation to minimize the exposure of workers to asbestos; but it does not specifically provide for an obligation to search for and maintain asbestos-containing materials. Consequently, the practices of employers and building owners with respect to the prevention of health risks associated with asbestos vary.
Asbestos is a thermal, acoustic and electrical insulant. In Québec, until the early 1980’s, it was commonplace to use flocking, sprayed material containing asbestos, for thermal insulation. It goes without saying that flocking and heat insulating materials containing asbestos are therefore still present in many buildings dating from that period. Other interior finishes incorporated into buildings built or renovated during the same period may also contain asbestos, notably gypsum, joint compounds, stucco and other sealants, as well as ceiling tiles, caulking and vinyl tiles.
Asbestos is a known carcinogen. According to the World Health Organization, it is responsible for one third of workplace-related cancer deaths.1 Because of the “friable” (crumbly) nature of asbestos, respirable fibres may detach from damaged material and become airborne, causing a health hazard to those who inhale them. 2
If the draft regulation is adopted, a number of important obligations will become applicable to employers subject to the ROHS:
within 2 years following the coming into force of the amendment, the employer will have to ensure that the following inspections are made of every building under its authority:
- any building built before February 15, 1990 must be inspected in order to locate flocking containing asbestos;
- any building built before May 20, 1999 must be inspected in order to locate heat insulating materials containing asbestos;
- all flocking and heat insulating materials will be presumed to contain asbestos, unless demonstrated otherwise, and any asbestos concentration result greater than a « trace » shall be equivalent to an asbestos concentration of at least 0.1%;
- every 2 years following the initial inspection, flocking and heat insulating materials containing asbestos must be checked by the employer, except as provided in the ROHS;
- if the inspection of a flocking or a heat insulating material reveals that it is liable to produce asbestos dust emissions, the employer must either remove or encase it;
- other interior finishes likely to contain asbestos (vinyl tiles, ceiling tiles, gypsum and joint compounds manufactured before 1980, etc.) must be repaired or removed by the employer if, because of their state, they are liable to emit dust into the air; and
- finally, the employer must keep a register relating to the materials, flocking and heat insulating materials that were checked or inspected and put the register at the disposal of the workers.
The obligation to inspect is imposed on employers, rather than on building owners, and is restricted to buildings « under the authority » of the employer. It nevertheless appears to us that the obligation to apply corrective measures – that is the employer’s obligation to remove or repair interior finishes, flocking, or heat insulating materials liable to emit asbestos dust – is not limited in the same way, nor is that obligation imposed by law on building owners.
One thing is certain: any employer who rents its establishment will not generally have foreseen assuming the financial responsibility for removing or replacing interior finishes, flocking or heat insulating materials liable to emit asbestos dust – a responsibility which may prove to be expensive. Should the law oblige the employer to carry out such work henceforth, without stipulating any financial liability on the part of the owner, it is possible that the employer would be required to assume that financial responsibility.
In the light of the foregoing, a tenant with an eye to the future, should, at the very least, review its lease and, in the event of its renewal or extension, seek to impose on the landlord the obligations that result or may result from the amendments to the ROHS and all associated costs. In negotiating a new lease, a tenant should require a representation and warranty as to the absence of heat insulating materials, flocking or other materials that may contain asbestos and impose on the landlord all obligations and associated costs that result or could result from the ROHS amendments.
From the standpoint of landlords, it is perhaps desirable for them to independently carry out their own inspections and any works that may be required, reserving the right to charge back all related costs as operating expenses. In all probability, it is in the landlord’s interest to avoid that defective work performed by tenants to implement the ROHS amendments give rise to additional expenses in the future and/or health problems for the occupants of the building concerned.