How to Balance Safety with Human Rights
Canadian health and safety legislation places a high standard upon employers to ensure the safety, health and welfare of all of their workers.
And human rights legislation places a high standard upon employers to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in the legislation—such as race, national/ethnic origin, color, religion, marital status or sexual orientation, according to Winnipeg-based OHS lawyer Jamie Jurczak.
Walking the line between ensuring a safe and healthful workplace and respecting a worker’s human rights can be difficult for employers, says Jurczak, a partner with Taylor McCaffrey LLP.
An example might involve a religious worker who always wears a crucifix on a chain, but faces the potential of entanglement as a result of wearing loose jewelry near operating machinery.
“The requirement to meet workplace safety and health standards is not a justification for discrimination,” she says. “Human rights legislation will often have paramount status over any other law in the province.”
In other words, safety legislation does not trump human rights legislation in Canadian workplaces.
“Employers are often left grappling with situations in which an employee in need of accommodation proposes a solution that leaves the employer feeling as though they will be left exposed under the workplace safety and health legislation,” s
What is an employer to do? The key lies in balancing workplace safety requirements with human rights.
For example, let’s assume your workplace has a blanket rule requiring hardhat use, but a worker tells you he cannot comply because he will not remove his turban for religious reasons.
In that case, accommodation might involve transferring that worker to a part of a plant where a hardhat is not necessary to protect that worker’s safety. Jurczak says the goal should not be absolute safety, but instead, reasonable safety.
She says a worker’s request for accommodation—whether it’s not wearing a hardhat because of a turban or refusing to shave a beard for religious reasons—must also be examined from the angle of whether the accommodation could endanger other workers.
Jurczak warns that having zero tolerance rules against various types of behavior can land an employer in hot water. For example, let’s say your workplace has a zero tolerance against employees working under the influence of alcohol and you find a worker impaired and reeking of alcohol and fire him.
If the worker claims that he or she has an addiction, you could find yourself in serious legal trouble for firing that person. Giving the employee a leave of absence and instructions to seek treatment for alcohol or drug addiction shows you are trying to accommodate that person’s special needs.
“This is a very dynamic and very active area of law right now,” says Jurczak.