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Workplace health and safety is one of the most important considerations for employers operating in all industries. Whether the worksite is a factory, construction site, or corporate office, every employer must turn its attention to the health and safety of its employees. Workplace health and safety obligations are imposed upon employers by law under legislation such as the Occupational Health and Safety Act (the “OHSA”) and other sector-specific legislation pertaining to particular industries. Occasionally, these statutory requirements conflict with other legislative obligations and employers are often left wondering how they can reconcile their competing obligations. In our blog last week, we wrote about a situation where an employer’s obligations under the OHSA conflicted with its obligations under Ontario’s Human Rights Code (the “Code”) where an arbitrator found that an employer’s obligations to its staff under the OHSA trumped its obligations to a particular employee under the Code. In International Brotherhood of Electrical Workers, Local 636 v Tyco Integrated Fire and Security, [Tyco] an arbitrator reached the opposite conclusion, finding that Code-related obligations took precedent over health and safety concerns. These conflicting decisions highlight the difficulty employers face in weighing their obligations under employment-related legislation in specific situations and that there is no “one size fits all” solution to issues involving competing employer obligations.

Tyco involved an office worker (the “Grievor”) who had type 1 diabetes which required him to regularly monitor his blood sugar levels and inject insulin. For a period of time, the Grievor performed his blood sampling and injections at his work station prior to his meal break. The employer did not assign desks to employees but instead allowed employees to sit where they liked meaning that any desk that the Grievor used was shared with other workers. This did not become an issue until a union steward who was walking by the Grievor ’s desk noticed him using a needle at his desk and informed management that the Grievor’s practice of performing injections at his desk might constitute a health risk for other workers. The union steward cited the bloodborne pathogens provision of the employer’s workplace policies which required proper and safe disposal of “sharps”, the discarded portion of a syringe.

The employer responded to the steward’s concerns by informing the Grievor that he could no longer inject himself at his desk as it presented a health risk to other workers. The Grievor was directed to monitor his blood glucose and inject insulin in one of the manager’s offices, which were normally vacant. The employer subsequently installed a sharps container for disposal of biohazardous materials in one of the offices and instructed the Grievor to use that office if at all possible. The Grievor felt that being required to use an office stigmatized him and gave the impression to other employees that his diabetic care was a health and safety risk to others. The Grievor was confused and asserted that he created no more risk than any other employee using one of the shared desks because his injections posed minimal risk of blood spillage and, in any case, he sterilized his desk after each injection. The employer maintained the requirement and advised the Grievor that if he continued to administer injections at his desk he would be sent home “suspended” until further investigation.

The Grievor eventually grieved the employer’s decision, arguing that it was discriminatory on the basis of his disability. In the Grievor’s view, the risk of disease transmission was not sufficient to warrant the measures the employer implemented and in effect alienated the Grievor from other employees. The employer argued that the OHSA put it under a duty to ensure the health and safety of its employees and that requiring the Grievor to use an office space for his diabetes treatments was a reasonable balance of the Grievor’s rights and the rights of other workers. The employer insisted that the requirement to use an office was a bona fide occupational requirement (a “BFOR”) because the Grievor’s testing kit label identified the kit as biohazardous. As a result, using the office was a reasonable accommodation especially considering that the Grievor would not need to use break time to complete his treatment.

The Decision

The arbitrator sided with the union, finding that the requirement to complete treatments in a segregated space was not a reasonable request in light of the very small risk that it presented. The arbitrator found that, despite the employer’s assertion that the Grievor’s testing and injections presented a health and safety risk to other employees, it had not provided any objective evidence that established that such a risk legitimately existed. In that regard, the arbitrator found that the employer had relied upon impressionistic evidence, rather than conclusive medical evidence which would have been necessary to justify its concerns. Furthermore, the arbitrator found that the Grievor was diligent about his equipment and had not requested any form of accommodation with regard to his testing and, therefore, the employer could not be accommodating his condition by requiring him to use an office for his injections. The arbitrator also noted that in labelling the testing kit a health risk, the employer had not indicated whether the risk was to the Grievor conducting the tests or other employees. This lack of specificity weakened the assertion that the testing kit was indeed a risk. Ultimately, the arbitrator concluded that, in the circumstances, the Grievor should be allowed to conduct his tests at his desk. The arbitrator ordered that the employer pay the Grievor $1000 to compensate him for injury to his dignity.

Takeaway

While every situation is fact-specific, Tyco and other decisions like it show that employers must be cautious about balancing competing interests in the workplace, particularly when there are statutory duties associated with those interests. It may not always be clear for employers how to proceed in the face of competing legal obligations, particularly when health and safety and human rights concerns are involved. However, the decision in Tyco demonstrates that where an employer seeks to introduce a BFOR or an accommodation measure, it must be able to point to objective evidence to support the accommodation or BFOR it seeks to implement. Objective evidence will often take the form of a medical opinion from the employee’s treating medical practitioner or medical and scientific studies that pertain to the accommodation or BFOR in question. As always, the advice of a legal professional can help employers navigate these tricky circumstances. Employers should consult legal counsel if they are unsure what to do when presented with challenges of this nature.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.