Bleach caused respiratory problems for nurse, but she refused modified duties that required her to wear a mask all the time
An Ontario nurse is entitled to loss of earnings benefits after she refused a return-to-work plan that included modified duties that weren’t suitable for her to work with, the Ontario Workplace Safety and Insurance Tribunal has ruled.
The worker was a registered nurse in the intensive care unit (ICU) at a Stratford, Ont., hospital starting in 2004. In October 2011, the worker visited her family doctor about respiratory problems she was experiencing. She claimed the problems were related to repeated exposure to bleach since May — when the hospital responded to an outbreak of antibiotic-resistant bacteria with a “terminal clean” of bleach and water. The worker had never experienced any respiratory problems previously.
The doctor noted that the worker had a “possible sensitivity to bleach fumes” and prescribed an inhaler and medication. He referred her to an allergy clinic, which identified “airway hyper responsiveness and possible asthma” and medical reports linking bleach to such problems. The clinic recommended the worker avoid bleach and suggested the ICU not use bleach the day before her shifts and during her shifts, pointing out a couple of non-bleach products that could be effective for infection control.
The hospital arranged for the worker to be assessed by an occupational disease specialty program to clarify the diagnosis and determine its compatibility with the worker’s exposure to bleach at work. The assessment recommended using “an alternative to bleach-based cleaning… if there is an alternative that would be acceptable to the hospital’s infection control policy.”
The assessment also noted that if it wasn’t feasible for the hospital to replace bleach as a cleaning agent, then the worker should avoid all exposure to bleach and the hospital should inform her when bleach was to be used so she could remove herself from the area.
The Ontario Workplace Safety and Insurance Board (WSIB) found there was proof of exposures to bleach in the workplace that caused the worker “irritant induced asthma” and granted her loss of earnings benefits for time she missed due to her condition in June 2012. At the same time, the WSIB also granted her entitlement for a rib muscle strain she suffered in a coughing episode she had on Dec. 6, 2011, after being exposed to bleach.
The worker returned to work on accommodated duties on June 9, 2012. However, she continued to experience respiratory problems due to bleach exposure and missed work because of them. The WSIB arranged a return-to-work meeting in November with a specialist, who recommended the worker wear a respirator throughout her shift. As part of the accommodation, the hospital wouldn’t require her to treat patients using N95 respirators, who were kept in negative pressure rooms. When necessary, the worker could wear a surgical mask over top of her respirator for a full face shield.
Disagreement over return-to-work plan
The return-to-work meeting was unsuccessful, so another was scheduled one month later. The hospital agreed the worker could return on Dec. 15 and they would follow a policy that included the following:
• All bleach products would be stored in a locked storage cabinet in a housekeeping closet.
• All instances of bleach use were to be recorded.
• Housekeeping staff were to inform the worker of upcoming bleach cleaning.
• The worker would keep the key to the bleach cabinet with her while on shift so no one could use bleach without her knowledge.
• No bleach was to be brought from other areas of the hospital.
• The written policy was to be posted above the storage cabinet.
• The worker would wear the respirator at all times in the hospital, unless bleach hadn’t been used in the “appropriate amount of hours.”
• Annual training on the policy for housekeeping staff in the unit.
However, the worker didn’t accept the offer of employment under these conditions, as she felt the respirator mask interfered with her ability to work because it made it difficult to speak to patients, staff, and families. Since she was sometimes called to other areas of the hospital to deal with cardiac arrests, it was impossible to avoid areas where bleach was used unless it was completely banned from the hospital, she said.
The worker’s employment was terminated on Dec. 15. The WSIB then ended her benefits on the basis that the hospital had offered her suitable employment to fit with her medical restrictions at no wage loss and she refused.
The worker eventually found a new job at another hospital on Jan. 6, 2014, that used an alternative to bleach for cleaning. However, she continued to experience respiratory issues which she believed were related to her initial exposure to bleach.
The worker contested the WSIB’s determination that she had refused suitable modified duties and requested loss of earnings benefits from Dec. 15, 2012, to the date of her new job on Jan. 6, 2014.
The tribunal agreed with the worker that the return-to-work conditions would have meant the worker would have had to wear the respirator mask through the majority of her 12-hour shifts at the hospital, as it was never determined what “the appropriate amount of hours” after bleach was used was for the worker to remove the mask. This wasn’t practical when she had to talk to patients, their families, and hospital staff over the course of the worker’s shift. In addition, the fact she would have to wear the mask meant there was no guarantee there would not be accidental or unscheduled use of bleach somewhere in the hospital, said the tribunal.
The tribunal noted that the report from the occupational disease specialty program and the worker’s doctor recommended that the only way to guarantee no exposure was for the hospital to use alternatives to bleach. The hospital opted not to go this route.
In addition, when the worker found new employment at another hospital, she was able to perform similar duties to what she had been performing before with the accommodation of using an alternative to bleach for cleaning in the workplace.
The tribunal determined that the modified duties offered to the worker were unsuitable, so the worker’s loss of earnings from her Dec. 15, 2012, termination from her original employer to the start of her new job on Jan. 6, 2014, were “related to the accident employer’s inability to provide her with suitably modified duties.” As a result, the worker’s appeal was allowed and she was entitled to loss of earnings benefits for the 13-month period when she didn’t work.
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