Peanuts, gluten, perfumes, smoke and latex - we all know
allergies to these and other substances are on the rise. The
same holds true in workplaces. 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 4% 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 - Ontario Nurses Association v London Health
Sciences Centre (ONA v LHSC).
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,
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 ONA v LHSC.
When Safety Becomes An Issue
In ONA v LHSC, a nurse with a severe allergy to latex
products accidentally touched a rubber band while collecting vials
for blood samples. Shortly thereafter the nurse experienced
difficulty breathing and was admitted to emergency. The nurse 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
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 Epi
pen with her at all times. Even with these precautionary measures,
LHSC could not guarantee a latex-free environment. Following the
nurse's last incident of exposure to latex, LHSC decided that
it could no longer safely accommodate the nurse's 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 of pay she would have been earning
when she worked as a nurse. The Arbitrator stated that in doing so
LHSC would be taking reasonable precautions to protect the
nurse's health and safety.
ONA v LHSC 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 does
not require the employer to eliminate all possible conceivable
risks. For example, in ONA v LHSC, LHSC did not 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, employers
Seek all relevant medical information.
Ask the employee for input.
Conduct thorough investigations regarding available
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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