Every employer has an obligation to ensure, as much as reasonably practicable, their workplace is safe and free from unusual dangers. Every employer also has a duty to accommodate employee disabilities to the point of undue hardship. What happens, though, when these obligations seem to overlap?
Does an employer have to accommodate an employee’s safety concerns?
Employee requests which conflate disability and safety concerns present a unique challenge for employers. Essentially, they are a double complaint:
- the workplace is unusually dangerous
- the employee is disabled or suffering from some other issue which renders them unable to work in said dangerous workplace.
When an employee brings these complaints forward, it is first important for the employer to identify them for what they are – understanding that they are unlikely to be formulated in such a transparent manner. Once identified, the issues can be addressed individually in an appropriate manner.
Accommodation
First, there is no “safety accommodation” under human rights law. The duty to accommodate is first premised on the prohibited grounds listed in human rights legislation which do not include “safety.” As such, an unsafe workplace does not justify sick leave. More is required.
With respect to a potential disability claim and accommodation request, an employer’s first objective will be to identify the medical issues which are claimed to give rise to the employee’s absence from the workplace along with any claims to sick pay or insurance benefits.
This will largely be accomplished through requests for medical information to be provided by the employee’s medical advisers – with follow-up as may be appropriate to ensure the employer obtains a sufficient understanding of the issues at hand so as to allow them to undertake an appropriate accommodation analysis.
Unsafe workplace
Second, the employee’s allegations of an unsafe workplace may need to be addressed via the employer’s occupational health and safety committee. However, this is a separate process from that of accommodation and will need to be carried out in accordance with the “work refusal” legislation in effect in the applicable jurisdiction.
In the recent decision of the Saskatchewan Labour Relations Board in Aschenbrener v. Saskatchewan Health Authority, the Board’s Vice-Chair, Barbara Mysko, addressed a complaint by an employee, alleging that the employer had failed to properly respond to his medically-based work refusal as required by the legislation.[1] Instead, the employer had attempted to address the employee’s health concerns and ultimately terminated his employment when the accommodation process fell apart.
In its decision, the Board accepted that the employer had not rushed to implement the statutory process for work refusals set out in the legislation. However, the Board also accepted that the employer’s failure to immediately commence the work refusal process was not a violation of The Saskatchewan Employment Act given the relevant provision’s requirement that an employee must have “reasonable grounds” to believe that work is unusually dangerous in order for the statutory scheme to come into effect. The Board concluded that this requirement for “reasonable grounds” is a threshold requirement, and any work refusal must be premised on said “reasonable grounds” before the legislation’s requirements for an investigation or an occupational health officer’s determination apply.
While the Board ultimately accepted that the complainant had not demonstrated a safety issue in the workplace, the Board remitted the complaint back to an adjudicator to further assess the acceptability of the employer’s accommodation attempts.
An employer is obligated to provide a safe workplace for all employees, so any allegation that the workplace is unsafe will similarly apply to all employees. Any claim by an employee that the workplace is unusually dangerous will need to be premised on reasonable grounds. There is no legislative basis for individualized safety assessments of a workplace.
Individual accommodations are properly handled not via work refusal provisions but pursuant to the requirement on employers to accommodate the medical issues. An employee’s medical issues may differentiate the employee from their peers so as to render the otherwise safe workplace unsafe with respect to that particular employee.
Our labour and employment law team regularly helps employers navigate accommodation and health and safety matters in the workplace. Contact us to learn more about how we can support your organization.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.