Peanuts, gluten, perfumes, smoke, and latex—we all know allergies to these and other substances are on the rise. And workplaces aren’t immune to the problem. More and more employees are suffering from allergies and sensitivities than ever before.
To put it in perspective, Health Canada recently reported that up to four percent of Canadians have a physician-diagnosed food allergy. We understand that schools accommodate these types of allergies, but surely employers don’t have to. Not true, as was made clear in a recent Ontario arbitration decision, London Health Sciences Centre v. Ontario Nurses’ Association (LHSC v. ONA).
Dealing with allergies in the workplace falls under two types of legislation: health and safety and, increasingly, human rights. When faced with a request to accommodate an allergy, Canadian employers must consider their legislative obligations to protect employee health and safety.
Depending on the severity and nature of the allergy, an employer may also have a duty to accommodate the allergy to the point of undue hardship. That’s because severe allergies may now be considered a disability. Balancing an employee’s right to equal treatment at work against the obligation to protect workers’ health and safety, employers must determine whether accommodating the allergy would result in undue hardship. This balancing act was recently highlighted in LHSC v. ONA.
When safety becomes an issue
In LHSC v. ONA, a nurse with a severe allergy to latex products accidentally touched a rubber band while collecting vials for blood samples. Shortly thereafter she experienced difficulty breathing and was admitted to emergency. She had informed her employer, LHSC, of her latex allergy two years prior to this incident. Since the initial reporting she suffered three incidents of exposure, each one being more severe than the previous one.
On becoming aware of the nurse’s allergy, LHSC had taken reasonable precautions and substituted all non-latex products for those containing latex and required that the nurse carry an EpiPen with her at all times. Even with these precautionary measures, LHSC couldn’t guarantee a latex-free environment.
Following the nurse’s last incident of exposure to latex, LHSC decided that it could no longer safely accommodate her allergy and refused to allow her to return to work.
ONA grieved LHSC’s refusal to return the nurse to work and its alleged failure to accommodate her allergy. In a consent arbitration award, the nurse was ordered to return to work in a non-nursing office position and to be paid the rate of pay for that position rather than the rate she would have earned as a nurse. The arbitrator stated that in doing so LHSC would be taking reasonable precautions to protect the nurse’s health and safety.
LHSC v. ONA emphasizes the challenge faced by employers in meeting both their obligation to accommodate a disability and to ensure the health and safety of employees. Employers are often concerned that accommodating a disability will violate provincial occupational health and safety requirements. This award provides some alleviation to those concerns by confirming that:
- An employer’s obligation to protect health and safety doesn’t require the employer to eliminate all possible conceivable risks. For example, in LHSC v. ONA, LHSC didn’t have to guarantee that the nurse would never come into contact with latex or suffer an allergic reaction.
- Provincial occupational health and safety requirements may be satisfied by transferring a disabled employee to a new position that would minimize health and safety risks.
What employers should do
If an employee’s allergy is severe enough to constitute a disability and is protected by human rights legislation, Canadian employers should:
- Seek all relevant medical information.
- Ask the employee for input.
- Conduct thorough investigations regarding available accommodation alternatives.
- Take reasonable precautions to ensure the health and safety of the employee and those around him or her.
- Determine what accommodation is required. In a unionized setting an employer should also consult with the union in determining whether there is a way for an injured or disabled employee to continue to work.
- Document all efforts to accommodate the employee.
Eowynne Noble has a broad labour and employment practice providing advice and representation to both private and public sector employers and management on a variety of issues including human rights and accommodation, labour disputes, grievance arbitrations, employment contracts, employment standards, wrongful dismissals, and related court litigation. In her time at Fasken Martineau, Eowynne has worked on a wide range of labour disputes including layoff procedures, collective agreement interpretation, and job competition grievances. Eowynne has also engaged in a number of employment matters including advising employers on termination proceedings and their obligations under the Ontario Employment Standards Act.