Follow Me on Twitter

Are NHL Teams Breaking Law By Not Requiring Players to Wear Safety Masks?

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.

staal

Ranger’s Employee Mark Staal Hit in Face with Puck. Not Wearing Protective Face Gear at the Time. Illegal?

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?
 

RSS

3 Responses to Are NHL Teams Breaking Law By Not Requiring Players to Wear Safety Masks?

  1. Ken Krupat Reply

    March 9, 2013 at 4:22 am

    Great post!. I have always thought that it makes perfect sense for someone to file a complaint under the OHSA and demand that players wear full face masks. It makes no sense to me that professional hockey players should have to risk their eyes, teeth, facial bones etc., as the price for playing hockey.

    I suppose the NHL might try to argue that since fighting is part of hockey – and fans want to see players’ faces (which I don’t actually think is necessarily true), the requirement to wear a full face mask would not be “reasonable in the circumstances” as it would detract from the character of the game. The NHL might try to say that, for example, professional boxers can’t be forced to wear masks – it would ruin the essence of the sport.

    To me, the issue, in hockey, is partially dependent on whether the level of violence, as it continues in the NHL, is really an intrinsic component of the sport. If we get to the point where the NHL would consider banning fighting outright, it would probably become easier to insist on full facial protection for the players.

    The other argument that I have heard players make is that full facial protection limits their peripheral vision and could make playing hockey even more dangerous for those wearing the protection. I’m not convinced that this is the case but I haven’t really seen any study results one way or the other. If the argument were true, it could affect the issue of whether the face protection was reasonable in all the circumstances.

    Ultimately, I hope the day will come where the NHL (or an external body) will impose full facial protection on all of the players. It is just simply too grotesque watching a group of players looking for another player’s teeth on the ice or seeing the escalating number of career ending eye injuries.

    • admin Reply

      March 9, 2013 at 1:59 pm

      Thanks Ken. Those are the arguments. Wearing goggles no doubt restricts a welder’s vision too, but the welder doesn’t have the option of simply not wearing the goggles. The law requires it, and the employer is in trouble if it doesn’t order the employee to wear them. So the argument that players “can see better” without a mask shouldn’t fly from a legal perspective. The fight issue is a separate, but interesting one, especially in Ontario, where the OHSA also regulates workplace violence and the potential of violence. It seems that the state simply defers to the hockey leagues to set their own rules about worker safety, and exempts them from regulation. I wonder about this strategy.

  2. Kevin MacNeill Reply

    March 10, 2013 at 1:02 am

    It is an interesting question but a complex one (to which I do not claim to have a complete answer).

    Context must surely be an important element to consider.

    Sports apart from hockey result in serious facial injuries including skiing, soccer and other ball sports and cycling. I read one report that in some of these sports the rate of facial injury is even higher than in hockey. Should full facial protection be required in these sports?

    Moreover, the vast majority of workplace facial injuries happen outside the sports arena. But professional hockey is more high profile than industrial work.

    In those sorts of industrial cases (where glasses are often the only required facial PPE) I am sure that charges have been laid sometimes and orders have no doubt been made as well.

    However, we do not hear calls for full facial protection as a general rule to apply to most industrial work environments.

    Back to hockey, the facial injuries are troublesome but I personally would be more worried about concussions and cervical spine fractures, which are potentially life altering events. Let’s keep the pressure up to remove those from the game.

    (Disclosure: apart from a brief time in the early 1970s, I have usually worn a full face mask when I have played amateur hockey.)

  3. Dan McGarry Reply

    March 22, 2013 at 9:38 pm

    Section 25(2)(h)of the Occupational Health and Safety Act (Ontario) requires that an employer shall “take every precaution reasonable in the circumstances for the protection of a worker”. The arena is a workplace, which is defined as “any land, premises, location or thing at, upon, in or near which a worker works”. A worker is defined as “a person who performs work or supplies services for monetary compensation”. Therefore players are by definition ‘workers’ and the arena is by definition a ‘workplace’. This means that the employer has the duty to ensure that they have taken every precaution reasonable in the circumstances to protect the health and safety of workers. Any injury which cost a worker the loss of sight in an eye would meet the criteria of a ‘critical’ injury and would require that the Ministry of Labour be notified and conduct an investigation. If this were to occur in an industrial environment, then the MOL would probably order that eye protection be made mandatory and that the employer enforce the wearing of eye protection. An order such as this might not even require that a critical injury occur. It could be made if an MOL Inspector decided that wearing eye protection was ‘reasonable’ based on the ‘circumstances’ including the possibility of an eye injury occuring or a history of previous eye injuries occurring. Section 28(1)(b)requires workers to “use or wear the equipment, protective devices or clothing that the worker’s employer requires to be used or worn”. Therefore according the Occupational Health and Safety Act it appears that the wearing of eye protection by professional hockey players in the province of Ontario should not be voluntary.

    • admin Reply

      March 22, 2013 at 10:20 pm

      Dan, and yet, the Ministry of Labour appears prepared to allow hockey players and their employers to contract out of the OHSA on the theory that hockey players are grown men who can assess risks on their own. Hockey players also tend not to rely on workers’ compensation, instead taking private insurance plans that fund their injuries. Another peculiarity about the hockey employer. I wonder if NHL teams deduct EI, WCB premiums, CPP, etc. I don’t know, but looking into it.

  4. Steven Bain Reply

    April 1, 2013 at 1:26 am

    I believe professional athletes are not covered by the OHSA because they are not covered by WSIB coverage. Hockey players are insured by their NHLPA collective bargaining agreement, you can read about their insurance coverage here: http://www.nhlfa.com/CBA/cba_agreement23.asp. The MOL has no jurisdiction in area’s where employers are not registered or interact with a WSIB schedule 1 business (most businesses being schedule 1 or 2). Even as a schedule 2 employer (federal employee) the MOL has no jurisdiction and the HRSDC is responsible for enforcing the Canada Labour Code on these types of employers. You can read about the schedules here: http://www.wsib.on.ca/en/community/WSIB/230/OPMDetail/24347?vgnextoid=5473fcea9bfc7210VgnVCM100000449c710aRCRD These same rules apply to sole proprietors and self-employed individuals. The MOL has no jurisdiction to investigate a death or accident of a person who was working as self employed or sole-proprietor. Otherwise they’d have jurisdiction if your were fixing your own roof. (which they dont) If you go through the schedules in the WSIA, professional athlete associations are not there, and the WSIB does not provide insurance for what happens on the ice. However the WSIB does cover other workers in the stadium, and therefore the MOL is able to enforce rules for non-player activities in the stadium, such as camera crews, zamboni drivers, concession workers, ticket vendors or any other person affiliated with the operation of the facility itself. So the Ministry of Labour isnt “allowing” anything. They technically have no claim to what happens on the ice because what happens out there isn’t covered by the WSIA. Feel free to correct me if you think I’ve gone awry. Cheers.

    • Steven Bain Reply

      April 1, 2013 at 1:40 am

      Should the state simply ignore pro sports workplaces and leave it to self policing? Why? Well this is a moral argument but the legal and economic implications of covering workers under the same schemes that workers are paid would astronomically increase the risk of insolvency of many sports clubs. The current disability rates paid out to hockey players are nickels compared to what the same injury claims would cost under the WSIB (especially with all the advanced and sometimes optional health care treatments they get.) Like seriously, if they were to regulate the sport, they would have to control all risks – not just the face shield issue. Players hitting each other, ergonomics of equipment, shift lengths, work rest regimes, noise exposure.. It just plain old wouldn’t be conducive to professional sports without significant changes to legislation. Then again, neither is doping, head shots, and malicious hits. I say let the NHL and NHLPA duke it out. I would rather see my taxes go towards more meaningful legislation, OHSA isn’t even that great, its the bare minimum.

    • admin Reply

      April 1, 2013 at 1:21 pm

      Hi Steven, you are correct in that pro sports teams are excluded from the WSIAT, but I don’t think it follows that every employer exempt from WSIAT premiums is also exempt from OHSA legislation. The WSIAT system was intended to deal principally with high hazard workplaces, and has been extended somewhat over the years, but a large percentage of workplaces are excluded from mandatory coverage. However, unlike under WSIAT, employers cannot just opt out of OHSA coverage as many can do under the WSIAT model. The two regimes deal with different problems. I note by the way that pro athletes are entitled to WCB in the States. Apparently California is the preferred state to make claims. Take a look at this story from California about pro sports athletes claiming WCB benefits: http://www.ocregister.com/articles/workers-500625-state-athletes.html

    • Dan McGarry Reply

      April 2, 2013 at 10:04 pm

      Steve, With all due respect, the Occupational Health and Safety Act applies to all workplaces that fall under provincial jurisdiction in the province of Ontario. If you are fixing your own roof, then you are not a worker and therefore the OHSA does not apply. However if you hire a sole proprietor (contractor) then the Act does apply. Once you hire a worker, your home is now a workplace and the MOL has full standing to inspect it. There are many examples of workers being injured while working on private residences, resulting in MOL investigations. Professional hockey players are not independent contractors, nor are they professional corporations. They do not have the right to sub-contract their work, set their own hours, or any of the other legal requirements to be considered as an independent contractor. Therefore, they are employees of their organization and at work when practicing or playing. Thus as employees ‘workers’, working in a provincially regulated industry, in a workplace the MOL does have jurisdiction. Although the MOL is largely funded by the WSIB they currently operate separately and are governed by separate and distinct legislation. MOL Inspectors are not trained in the WSIB Act nor do they refer to it when issuing orders or conducting inspections/investigations. Federally regulated workplaces as you mention do not fall under OHSA or MOL jurisdiction, they are regulated by the Canada Labour Code and federal inspectors are responsible for enforcing safety provisions and investigating accidents in federally regulated workplaces.

  5. Steven Bain Reply

    April 1, 2013 at 4:22 pm

    Neat post about California, they’ve always taken a different path down there haven’t they? Another way that players could be exempt from OHSA is if they were all independent operators. For these circumstances to exist, it would require that the NHL league pays a salary contract to a players “company” of which the player is the only employee of that company. Under that payment scheme there is no employer-employee relationship, as each player would be a sole proprietor. I think we would also have to see the structuring of the contracts made by the player’s “agents” and how that effects the legal qualifications of a employee-employer relationship. It is my opinion that there is some legal entity keeping players at an arms length from being a direct employee of the league. Otherwise a direct employer-employee relationship between the player and the league would dictate that the OHSA applies, and all of the regulations you cited above would apply. Back to studying for exams! I’m interested to see how this develops.

    • Andres Barker Reply

      April 1, 2013 at 6:12 pm

      Steve, Don’t forget that statutory organizations are entitled to look to the actual relationship between the entities to determine whether they are, in fact and law, playing as corporations or employees. The existence of an exclusive bargaining agent essentially precludes that former possibility, as the players would need to decertify as a first step towards becoming a collection of companies as opposed to a collection of employees.

  6. Ron Reply

    April 7, 2013 at 11:56 am

    It is absolutely RIDICULOUS that the NHL does not require a FULL face mask. To me, it is purely a IRRESPONSIBLE MARKETING decision, without consideration of the injuries the players expose themselves to, to ensure the players faces are on TV and available for photos and videos, and promote fighting, which is NOT part of hockey. Hockey is a tough enough sport. I would suggest 90% of the eye injuries, facial lacerations, and dental/mouth injuries by sticks and pucks in the face could be prevented by simply adding a FULL mask. FULL Masks are required in Youth, High School, and College levels, and DO NOT inhibit vision enough to negate the BENEFIT of protection they provide. Vision inhibition is a bogus reason and only being used to promote how tough you should be to not wear a mask. The players are being USED beyond their hockey talents, and this practice by the NHL encourages exposure to this risk in Juniors and Youth hockey.

Leave a Reply to Steven Bain Cancel reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>