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 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 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 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.
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.