Allergies are becoming increasingly common, but when one turns deadly and the workplace becomes unsafe can you dismiss that employee?
Allergies are on the rise globally, and in New Zealand up to 30% of the population are afflicted by them. Understanding of the issue is increasing with schools proactively accommodating allergies, but what about employers?
Dealing with allergies in the workplace falls under the health and safety act and employers must consider their obligations under the act when it comes to accommodating an allergy. A recent Canadian case has highlighted how important that is.
Canadian lawfirm, Fasken Martineau, reported the case of Ontario Nurses Association v London Health Sciences Centre (ONA v LHSC) in which a nurse with a severe allergy to latex accidently touched a rubber band while collecting vials for blood samples. The nurse began to experience difficulty breathing and was admitted into the emergency department.
The nurse had informed her employer, LHSC, of her allergy two years prior to the incident and since the initial disclosure had experienced three incidents of exposure, each one more severe than the previous.
LHSC had taken reasonable precautions after becoming aware of the allergy, including supplying non-latex products and requiring the nurse carry an EpiPen at all times. However despite these measures it could not guarantee a latex-free environment. Following the last incident LHSC decided it could no longer safely accommodate the nurse’s allergy and refused to allow her to return to work.
ONA took the matter up on behalf of the nurse and in a consent arbitration award the nurse was ordered to return to work in a non-nursing position and to be paid the rate of pay for that position. The arbitrator stated that in doing so LHSC would be taking reasonable precautions to protect the nurse’s health and safety.
Port Nicholson Chambers Barrister, Maria Berryman, said if a similar situation were to arise in New Zealand it would be difficult for an employer to dismiss the employee without risk if both parties committed to taking all practicable steps to eliminate, isolate or minimise all hazards that may arise in the workplace due to an employee’s allergy/allergies.
“The test for justification in New Zealand is whether the employer’s actions and how the employer acted were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred,” Berryman said.
“It would be unwise for an employer not to exhaust its efforts to understand the employee’s diagnosis, potential for harm, and steps the employee and employer could put in place to avoid harm, prior to considering dismissal.”
Kensington Swan Senior Associate, Steve Wragg, agreed a similar conclusion could be reached here.
“Under NZ law there is a requirement to act reasonably and fairly, and there may be an obligation to consider whether an employee should be resigned to alternative duties, that would generally be with the employees agreement, and ultimately if that’s not possible it might be necessary to look at other alternatives such as medical retirement,” he said.
Wragg advises that all employers should have an open discussion if they become aware of a particular sensitivity. Open conversation and documentation would be vital for any ensuing lawsuit.
“These sorts of issues are fact sensitive that’s why the need to have very open discussions about them is so important,” he said.
Berryman added given the obligation of good faith, which requires employers to be open and communicative and responsive, it would be incumbent in the first instance to work with the employee to understand the potential risks for the staff member and what could be done to safeguard the employee against the risks.
“Depending on the job, the size of the employer and the employer’s resources, it may be incumbent upon the employer to seek some specialist medical advice and information so that it can then make an informed decision,” she said.
Look out for Wednesday’s edition of HRM Online for tips on how to manage allergies in the workplace.
