Guidance for the interpretation and application of the amended Canada Occupational Health and Safety Regulations Part XI confined spaces

Qualified Person is a term used throughout the regulations. Part I of the COHSR defines it as follows:

“Qualified person means, in respect of a specified duty, a person who, because of his knowledge, training and experience, is qualified to perform that duty safely and properly”

Because the requirements are “in respect of a specific duty”, the expectations of qualified persons may vary. The confined space regulations require a qualified person to conduct many different tasks and take on different responsibilities. The degree of knowledge, training, and experience is often different for each requirement.

For the purpose of these regulations, a qualified person should have knowledge, training, and experience that directly relates to the hazards of confined spaces.

Below are a few examples of requirements or skills of a qualified person:

• the qualified person required by paragraph 11.02(1)(c) should have documents to demonstrate that they have training in confined spaces, have worked with confined spaces, and are trained in interpreting regulations. The regulations require similar qualities of the qualified person used to assess the hazards as required by Section 11.03
• the qualified person required for Section 11.05 should have the qualities above, and they also need a clear understanding of the instruments used to assess the atmosphere in the confined space. They should be able to demonstrate that they have prior experience and training in:
  • the use, care, and limitations of direct-reading instrumentation
  • operating air sampling instruments, and
  • instrument calibration
• paragraph 11.06(1)(d) specifies at least one of the qualities that the qualified person must possess. In order to be an attendant outside the confined space (where emergency procedures require it), they must be trained in:
  • the emergency procedures required by these regulations for the specific confined space, and
  • operating communication devices or alarms to summon assistance
• the procedures require reacting to changes in the concentration of hazardous substances in the confined space, they should be able to:
  • understand the operations of instruments used in the confined space, and
  • monitor an anchor as set out in paragraph 11.06(4)(b)

The reference to one or more qualified persons is included in Section 11.03. The regulations allow for more than one qualified person to conduct the hazard assessment prior to entry into a confined or hazardous confined space. Everyone who is conducting the work of a qualified person will need have the necessary qualities.

The Code already specifies certain protections that the employer must provide to a “person granted access to the workplace.” Likewise, these regulations, in a number of provisions (50 separate references to “person”), compel employers to protect all persons, not simply their own employees. The potentially hazardous nature of work in many workplaces, especially a confined space or hazardous confined space, means that the employer (often the owner) must assume responsibility for the protection of the persons entering the spaces, and not delegate the responsibilities solely to the contractors.

The Confined Spaces regulations must be complied with whenever an employer grants a person access to a confined space. Therefore the employer’s qualified person must, ensure that the levels of oxygen will remain above 19.5% by volume for the time when the space is occupied. If that level cannot be maintained in a confined space, an appropriate air-supply respirator must be provided as the last resort. For other work places where oxygen deficiency may be an issue, the definition from Part I continues to apply.

A case where there are multiple employers (employers as defined in the Code) would be rare. However, under the Code, all employers with employees performing work are responsible for the health and safety of their employees. Therefore, a lead employer would not be necessary.

All confined spaces may be hazardous to workers; however, not all hazards present the same risk of harm. It is a waste of resources to treat all confined spaces in the same manner as hazardous confined spaces. For example, in the previous version of these regulations, employers were required to measure oxygen levels in all confined spaces, even if there was no potential atmospheric hazard. That is only required now for hazardous confined spaces where a qualified person determines that oxygen levels present a hazard.

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

The wording of these conditions is (a), (b), and (c). In other words, (a) and (b) and (c). Therefore, a space must have all 3 conditions in order to be a confined space.

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

The wording of these conditions is (a), (b), or (c). In other words, (a) or (b), or (c). Only 1 of those conditions is necessary to make a confined space a hazardous confined space.

A space not designed or intended for continuous human occupancy is one that only accommodates a person so that they can perform certain tasks. It is a space that a person would only be in for the duration of performing those specific tasks. The spaces lack the required workplace safety measures of a “normal” workplace. For example, fire and life-safety systems have not been installed with the intent of continuous worker occupancy, nor have ergonomic considerations been taken into account for the space. Non-continuous human occupancy implies that the worker’s presence will be transient (for example, maintenance).

The following explains the phrase:

• access and egress are limited or restricted if:
  • a person’s entry or exit is hindered by a need to squeeze through an opening
  • they must assume a difficult posture for a long time
  • to enter into the space or leave the space requires efforts such as climbing (for example, ladders, awkward stairs), crawling (around equipment, over equipment or pipes), or
  • there are constraints such as narrow passages encountered inside

An employer may consider several confined spaces to be a class of confined spaces if they:

• are of similar size or shape
• contain equipment or machinery that have a similar purpose and may present similar hazards
• or other similar hazards, such as:
  • restricted entry or exit
  • exposure to the same or similar hazardous substances, for example asphyxiants, explosive gases, and/or biological hazards
  • exposure to an oxygen-enriched or oxygen-deficient atmosphere
  • exposure to a hazard near or surrounding the confined space
  • possible leaks from pipes, or water ingress
  • danger of drowning or being engulfed in flowing solid material

The hazard assessment, confined space procedures, or emergency procedures can apply to every confined space within a similar class.

Yes, it likely would. A hazardous substance at levels above the TLV would indicate that the substance has the potential to cause an injury or illness. A characteristic of many confined spaces is that the levels of airborne contaminants can elevate quickly.

The regulations specify that the employer, in consultation with the workplace health and safety committee or the representative, identify the confined spaces. It is not required to be a task for a qualified person. Therefore, no special skills or abilities are required.

The employer and workplace committee or representative only require a qualified person for workplaces in which there are confined spaces identified after the workplace has been surveyed. The qualified person reviews the list of all confined spaces. The reviewed list is then returned to the workplace parties to provide information on which ones were further classified as hazardous confined spaces.

The regulations do not prescribe the way or exact location in which signage is attached to the entrance of a confined space. The information on the sign is important to anyone considering entering the space. Employers must place it where it can be easily seen prior to entry. For example, they could be place the sign on a chain that crosses the entry inside the cover, if it is safe to do so.

In this context, the word “record” means list (or inventory). The employer must keep a detailed list (or inventory) of all confined spaces and hazardous confined spaces in the workplace. Although not prescribed, an employer may include whether or not a confined space is one of a class of confined spaces.

The records must be available in both printed and in electronic format. The Code specifies the requirements in subparagraph 125(1)(d)(iii):

• (d) make readily available to employees, in printed and electronic form
  • (iii) any other information related to health and safety that is prescribed or that may be specified by the Head

Yes. The Code requires it in paragraph 125(1)(z.06). The employer shall “consult the workplace committee or the health and safety representative in the implementation of changes that might affect occupational health and safety, including work processes and procedures”.

The Code requires in paragraphs 125(1)(s) and 125(1)(z.14) that the employer inform employees, and all persons granted access to the workplace, of all known or foreseeable hazards. Paragraph 126(1)(b) also requires employees to follow all procedures. Furthermore, Subsection 11.12(1) of the regulations state that the employer must provide instruction and training to every employee and person who is likely to enter a confined space. They must train them in the general procedures, emergency procedures and use of protection equipment. Therefore, persons who enter a space are required to review the procedures during training.

The qualified person must conduct the hazard assessment of each confined space in person. However, a qualified person can group confined spaces into classes of confined spaces (confined spaces that have common characteristics and properties) remotely.

Yes, a new assessment by a qualified person is required due to the new parameters for the classification of confined spaces and hazardous confined spaces.

Hazards within a confined space, or the potential for hazards to present during confined space entry, may include:

• physical: noise, engulfment, flooding, moving machinery, heat/cold stress, vibration, radiation, fire, explosions, poor lighting, other
• biological: mould, bacteria, viruses, bloodborne pathogens, biological toxins, other
• chemical: gases, vapours, fumes, chemical asphyxiants, lack of oxygen, asbestos, lead, silica, nanoparticles, concentrations of airborne substances above occupational exposure limits, other
• electrical: live wires, electrical panels, other
• ergonomic: maintaining difficult postures, repetitive strain, lifting, awkward reaching, use of hand tools, other
• psychological: working alone, claustrophobia, fatigue, other

The regulations do not prescribe any specific criteria for determining the need to have an entry permit system. The qualified person (or persons) determine whether to use an entry permit system. If the qualified person requires one, they would define its content. This is part of their assessment of the confined space.

This is set out in Subsection 11.03(4).

Here are some examples:

• if new equipment is introduced into the confined space that reduces the space available
• a change of a diesel fuel tanker into one for water-hauling
• a change in the immediate surrounding area (example, an increase of traffic on the street), or
• a new hazard such as a solvent-based paint to maintain the space

As set out in paragraph 11.03(2)(d), “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:

… (d) any requirement for a first aid attendant;” [Paragraph 11.03(2)(d)]

Yes. The language of this provision makes it clear that there may be situations whereby the hazard assessment does not conclude that a dedicated first aid attendant is needed on site.

It is one of the duties of the Policy Committee to “participate in the planning of the implementation and in the implementation of changes that might affect occupational health and safety, including work processes and procedures”. The employer and the Policy Committee would share all the necessary information with the workplace committee as part of that duty. It is a role of the workplace health and safety committee or health and safety representative to consult on implementing the procedures in the workplace and monitoring their effectiveness.

The regulations do not define the term. It refers to any system by which a person on the outside of a confined space can actively verify that a person on the inside is not incapacitated or in any trouble.

Yes. Subparagraph 11.04(2)(a)(ii) prescribes the use of two-way communication and person check systems for both confined spaces and hazardous confined spaces.

Yes. They apply to any person entering, exiting, or occupying a confined space. The regulations apply to contractors and contractor’s employees in all cases where there are references to persons rather than employees. There are about 50 uses of the word “person” in the regulations.

The regulations do not require an entry permit system for confined space entry. The qualified person (or persons) determine whether to use an entry permit system and must define its content. This may be part of their assessment of the confined space. [Paragraph 11.03(2)(f)]

As they would be part of the confined space procedures, the employer must retain them for 10 years. [Paragraph 11.13(a)]

The regulations require continuous monitoring where a qualified person has determined that the atmosphere in the hazardous confined space could be of concern. Considering the definition of a hazardous confined space, it is clear that the atmosphere will very often be a concern. However, there could be situations whereby the atmosphere is not the consideration for the space being classified as hazardous, therefore continuous air monitoring would not be required.

That will be up to the qualified person to determine. Regardless of how it is done, the requirement of 11.05(1) is to verify that the TLV and lower explosive limit are not exceeded.

Normal atmospheric pressure is a qualifier for determining the available oxygen. The regulations do not define it, so we must assume the standard definition for normal atmospheric pressure. Normal atmospheric pressure is one atmosphere, 1,013 millibars, or 760 millimeters of mercury. If the location of the worksite (example, high altitude) results in the atmospheric pressure being significantly different from “normal”, calculations would be required to correct for the pressure.

The regulations require emergency procedures as set out in Section 11.06 only for hazardous confined spaces; however, emergency response measures are still required for all confined spaces. [Subparagraph 11.04(2)(a)(iii)]

The regulations do not specify the content of the response measures. The employer determines them in consultation with the policy committee, or, if there is no policy committee, the workplace committee or the health and safety representative.

The qualified person, as part of the hazard assessment, determines the acceptable concentration range of an atmospheric hazard. A concentration outside of the acceptable concentration range may be deemed significant.

Where conditions in a confined space or the nature of the work to be performed in a confined space is such that the specifications set out in paragraph 11.05(1) cannot be complied with during all times that a person is in the confined space, the employer shall ensure that every person entering, exiting, or occupying the space wears an appropriate safety harness that is securely attached to a lifeline. In any other case, persons entering a confined space must wear one only if the qualified person’s procedures require wearing one.

The regulations do not specify which type of safety harness a person must wear to enter a hazardous confined space. This must be determined by a qualified person.

The employer determines the number in consultation with the policy committee or, if there is no policy committee, the workplace committee or the health and safety representative. It is part of the emergency procedures. [Paragraph 11.06(1)(f)]

Examples of airborne biological hazards include fungal spores, bacteria, or viruses. These may be more hazardous in confined spaces than other work spaces (for example, in an office setting) due to the lack of control measures (for example, ventilation) which could lead to potentially high concentrations. The regulations require that the qualified person ensure that the concentrations of those hazardous substances do not cause harm to the worker(s).

Yes. The requirement is included in paragraph 12.05(1)(a) of Part XII of the COHSR:

(1) All protection equipment that is provided by an employer must:

• (a) be properly stored and be maintained, inspected and, if applicable, tested by a qualified person in accordance with the manufacturer’s instructions to ensure that it is in good operating condition; (emphasis added)

The wording of that subsection does refer to the qualified person instead of a qualified person. Therefore, the employer will use the qualified person who drafted the procedures to explain them to employees.

Yes, if the person does not have the correct equipment, the employer is responsible to provide it. Subsection 11.08(3) states:

• (3) The employer must ensure that:
  • (a) any person who is granted access to a hazardous confined space has the equipment specified in paragraph 11.03(2)(a), failing which the employer must provide it

The verification process will vary based on the confined space. The qualified person will need to determine the appropriate procedure to ensure that no person is in the confined space prior to closing it off.

It applies to all confined spaces and hazardous confined spaces.

The limits have a built-in safety factor. At levels greater than 10% of the lower explosive limit for the material, it is important that the qualified person closely monitor the work and the levels. As prescribed in Subsection 11.1(2), the qualified person must patrol the area, and the employer must provide that all necessary protective equipment.

Yes. Subsection 11.11(3) states:

“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.”

Airborne concentrations of atmospheric hazards can vary over time, and may be different at various locations within the hazardous confined space and at different heights. Continuous atmospheric monitoring is therefore one key component of the person(s) within the space.

Yes. The employee who is monitoring the ventilation equipment must be trained in the usage and limitations of the ventilation equipment and the procedures to be followed in the event of an equipment failure.

The requirement for first aid training depends on whether or not a first aid attendant is required.

The person occupying the hazardous confined space, once notified by an alarm or a person that the ventilation has failed, must be able to exit the space before the airborne hazard reaches unsafe concentrations as prescribed by the entry permit.

The ventilation equipment must be equipped with an alarm or monitored by an employee.

Alarms are not required if the equipment is monitored by an employee. It must be “monitored by an employee who is in constant attendance at the equipment and who is in communication with any person in the hazardous confined space”.

Hazardous confined spaces are defined in several provincial occupational health and safety regulations, including but not limited to Saskatchewan (Occupational Health and Safety Regulations, RRS c S-15.1 Reg. 10), Manitoba (Regulation 217/2006 Workplace Safety and Health Regulation), and Prince Edward Island (Occupational Health and Safety Act – General Regulations).

Regardless of provincial regulations, in all cases, the training is to be delivered by a qualified person. They must have the appropriate knowledge of the federal regulations, training and experience. They must have the ability to identify, assess, and provide training on the specific hazards associated with the confined spaces within the workplace.

Yes. The revised regulations have introduced additional safety precautions such as:

• requiring two-way communication or person checks for all confined spaces, and
• continuous ventilation if there is an atmospheric hazard for hazardous confined spaces

As they would be part of the Confined Space Procedures [Subsection 11.04(3)], the regulations require that the employer retain records for 10 years [Paragraph 11.13(a)].

There is no time limit for retaining the record (list) of confined spaces. They are to be kept for as long as the spaces exist in the workplace and fit the respective definition. The employer must keep them up-to-date. When more are spaces determined to be confined spaces they are to be added. If they are no longer in the workplace, they are to be removed.