I was asked this week why NHL players don’t have to wear face masks. The question arose in light of the most recent grizzly injury to a player hit in the face with a puck.
Occupational health and safety law is not my field of expertise, but my gut reaction was that they are, but that the law requiring this is just being ignored because no player has filed a complaint. That might seem strange though, because the OHSA creates positive duties on employers and employees to wear protective gear. The government inspectors can, and should, inspect to ensure that the laws are obeyed. In the case of pro hockey, the potential violation of the legislation is obvious and on television every night. So why would you need a complaint to be filed? The inspectors could just go in the Air Canada Centre, issue an order for the Leafs to comply with the Act and force employees to wear protective eye wear. The system does not rely solely on employee complaints, because often employees are too afraid of repercussions to file a complaint.
So why haven’t the Leafs, Senators, Marlies, and other pro hockey teams in Ontario been ordered to ensure their employees (players) are wearing protective eye wear (masks)?
In the sports media, the answer provided is that visors and masks are matters for collective bargaining, and so far the players’ union, for reasons that are inexplicable to me, isn’t interested in mandatory masks to protect its members. But surely that can’t be right, can it?
Health and safety isn’t a matter for negotiation, at least not in Canada. Right? I don’t think it is in the U.S., either, but let’s focus on Ontario for now. Welders in factories don’t get to bargain about whether they should be wearing proper eye protection gear. Their union can’t bargain an exeption to health and safety laws because the workers are so stupid that they don’t want to wear safety gear. The employees can’t just say we’d rather not wear protective gear, and the employer can’t just say, “well, the employees don’t want to wear goggles, so we won’t make them.” It doesn’t work that way. The employer has a legal responsibility to ensure employees are wearing protective safety gear, and that obligation is not a subject of bargaining. If a welder gets injured at work when not wearing protective eye wear, the employer can be subject to serious penalties. Should the Leafs be fined if a player takes a puck to the eye when not wearing a mask?
The obligation appears in the Occupational Health and Safety Act in Ontario, and I assume similar legislation in other provinces. Read Section 25 of the OHSA. It says that employer must ” take every precaution reasonable in the circumstances for the protection of a worker” (2(h)), and ensure that “the equipment, materials and protective devices provided by the employer are used as prescribed”. Section 27 creates a positive obligation on management/supervisors to ensure safety gear is worn at all times while working. Section 28 requires employees to wear the gear that the employer orders them to wear in accordance with its obligations.
Toronto Maple Leaf and Ottawa Senator players are governed by this legislation as employees of Ontario-based employers. Same for the AHL teams, like the Toronto Marlies.
So you tell me. Why does the OHSA not regulate and require the use of protective eye gear for professional sports employees?
Is getting hit in the eye with a 100 mile an hour puck not considered a workplace risk requiring protective gear?
Should the wearing of protective gear be subject to bargaining?
Should the state simply ignore pro sports workplaces and leave it to self policing? Why?