Question: What duty does an employer have to ensure the workplace is allergen-free? Is it up to the employer to make sure offices are peanut- and perfume-free if a worker has an allergy? What if the worker doesn’t self-identify as having a sensitivity?
Answer: An employer that has been advised by a worker he has a workplace allergen would likely be required to take steps to minimize the worker’s exposure to the allergen. In Ontario, for example, the Occupational Health and Safety Act (OHSA) does not contain any provision directly addressing the issue of workplace allergies — the obligation to address a known allergy is arguably contained within section 25(2)(h) of the OHSA. It stipulates an employer must “take every precaution reasonable in the circumstances for the protection of a worker.”
In respect to health and safety matters, it is clear an employer is required to take steps to avoid exposing workers to foreseeable hazards. Moreover, Ontario courts have held an employer is considered an insurer of worker health and safety. While this language is undeniably strict, practically speaking, it means the employer should alert others in the workplace to the existence of the allergy and ask that other employees co-operate in keeping the workplace allergen-free. It would not be inappropriate to create a workplace rule requiring other workers to comply with a directive to not wear scents or to bring peanut products (or other food-based allergens) into the workplace.
The reasonableness of an employer’s conduct will be assessed by the circumstances. In that vein, the standard expected of an employer that is unaware of an employee’s sensitivity will be different than that expected of an employer that is aware of an employee’s sensitivity.
Practically speaking, there is little an employer can do if a worker does not say she has an allergy or sensitivity and, in that case, it is unlikely an employer would be liable for an employee’s allergic reaction in the workplace. It would not be reasonable to expect an employer to have taken protective or preventative measures to address an issue that had not been raised. It is unlikely an employer would be expected to foresee an allergy attack or sensitivity reaction of which it is unaware.
Though OHSA responsibility may arise in relatively narrow circumstances, it is important to note Ontario’s Workplace Safety and Insurance Board (WSIB) has awarded compensation to workers who have been unable to attend work due to workplace conditions that have triggered allergic reactions or sensitivities.
To be eligible to receive compensation from the WSIB, a worker would have to establish a link between the illness or allergy preventing him from attending that work and his workplace conditions. In other words, a worker is not entitled to compensation merely by demonstrating he has an allergy or sensitivity — the worker must establish a causal link with his workplace.
The possibility a worker could obtain workers’ compensation benefits should serve as an incentive for an employer to take steps to minimize known allergens in the workplace.
The WSIB can award health-care costs, loss-of-earnings benefits and, in some cases, labour market re-entry programs to employees who cannot attend the workplace due to an illness (including a reaction due to a sensitivity) triggered by workplace conditions. This can have direct and indirect costs on an employer’s board cost statement.
Employers should also be aware they may have a duty to accommodate a disability that exists as a result of an allergy or sensitivity to a workplace condition. A human rights tribunal could find an allergy that is sufficiently severe and exacerbated by workplace conditions is a disability that is protected by the Ontario Human Rights Code. Note that not all allergies would be protected by the code; the tribunal would examine a complaint alleging an allergy is protected by the code very carefully as many common, transient illnesses (such as a cold) are not protected.
Madeleine Loewenberg is a lawyer in the employment and labour group at Ogilvy Renault in Toronto. She can be reached at (416) 216-3932 or mloewenberg@ ogilvyrenault.com. This article originally appeared in Canadian Safety Reporter, a publication that focuses on occupational health and safety. For more information, see www.safety-reporter.com.