We have blogged before about allergies and whether under the ADA an employer has an obligation to make reasonable accommodations for an allergic employee.

For instance, we reported on a court decision about a lab employee who could not work with irritating chemicals but who rejected a full face respirator offered by the employer because she claimed that she suffered from claustrophobia and panic attacks from wearing it; and refused to even try out a partial face respirator. She sought, but was denied, other accommodations.

On April 13 we wrote about “a strange” UK case where a chef in an historic 14th century inn developed an allergy to nuts so severe that “he nearly died after being rushed to hospital after coming in contact with peanuts. … the smell and touch of all types of nuts made him ill and caused a skin disorder.”  The Employment Tribunal apparently ruled that the allergy to nuts was, in fact, a disability which affected major life activities  –  his diet has had to be changed, he also has to be careful when shopping for food and preparing it, and his social life has been restricted. The Court ruled that the chef could seek compensation for disability discrimination at a later  hearing.

We came across a great article by Canadian lawyers at the firm of Fasken Martineau, who used a new decision from Ontario – Ontario Nurses Association v London Health Sciences Centre (ONA v LHSC), to discuss the “dueling duties” of employers – “balancing health and safety” of the workplace (such as the OSHA regulations in the US) with the obligation to accommodate an allergic employee.  As in the US, “[d]epending on the severity and nature of the allergy, an employer may also have a duty to accommodate the allergy to the point of undue hardship. That’s because severe allergies may now be considered a disability.”

In the spotlighted case, a nurse who had a severe allergy to latex products so informed her employer two years prior to an incident where she touched a latex glove and had to be hospitalized.  According to our Canadian lawyers, the employer “had taken reasonable precautions and substituted all non-latex products for those containing latex, and required that the nurse carry an Epi pen with her at all times. [However], [e]ven with these precautionary measures, [the employer] could not guarantee a latex-free environment,” and after her latest incident of latex exposure, it refused to allow her to return to work, determining that her allergy could no longer be safely accommodated. 12916468_s

She was ultimately restored to work after an arbitration, but in a non-nursing position.

The authors do a very good job of parsing the award, and providing a valuable takeaway for Canadian employers “[i]f an employee’s allergy is severe enough to constitute a disability and is protected by human rights legislation”:

“Seek all relevant medical information.

Ask the employee for input.

Conduct thorough investigations regarding available accommodation alternatives.

Take reasonable precautions to ensure the health and safety of the employee and those around him or her.

Determine what accommodation is required. In a unionized setting an employer should also consult with the union in determining whether there is a way for an injured or disabled employee to continue to work.

Document all efforts to accommodate the employee.”


Canadian employers and lawyers would do well to read this article.