December 10, 2018
In a recent decision, International Brotherhood of Electrical Workers, Local 636 v. Tyco Integrated Fire and Security Canada Inc, Arbitrator Laura Trachuk found that an employer discriminated against an employee by requiring him to go to a separate area within the workplace to self-administer medical care related to Type 1 diabetes. Type 1 diabetes is recognized as a disability under Ontario’s Human Rights Code (the “Code“). People with this type of diabetes must administer insulin and check blood glucose levels throughout the day, including while at work. In this case, the employee’s regular workspace was a cubicle which was shared with other employees. The employer required him to leave the cubicle and go to a private office to administer his care (although he could self-adminster at a cubicle in the event of an emergency), citing health and safety concerns. The Union filed a grievance on behalf of the employee alleging that the requirement was contrary to the Collective Agreement and the Code.
Notably, the arbitrator found that the requirement that the employee use a private office was discriminatory because “it is based on the assumption that his diabetic care poses a risk to his co-workers and that is not supported by objective evidence.” The arbitrator also relied upon the employee’s evidence that the requirement to use a private office made him feel “alienated and unwelcome in the workplace” to hold that the employer had imposed an adverse impact on the employee with a connection or nexus to his disability such that the Union had made out a prima facie case of discrimination. The burden then shifted to the employer to justify the private office requirement under the three-part test from British Columbia (Public Service Employee Relations Commission v. B.C.G.E.U. (Meiorin).
The employer argued that the private office requirement was a reasonable accommodation to address health and safety concerns. Arbitrator Trachuk rejected this position, emphasizing the lack of medical evidence provided by the employer in support of its position that the employee’s diabetes-related care posed a health and safety risk to other employees. The arbitrator found that the employer’s reliance upon manufacturer’s materials for the employee’s diabetes-related equipment (and statements from those materials about items being biohazardous after use) were not sufficient to establish a health and safety hazard necessitating the use of a private office. This finding is significant as it demonstrates that objective evidence is needed in order to support an assertion that a prima facie discriminatory workplace requirement is required in order to protect workers’ health and safety.
Ultimately, the arbitrator ordered the employer to cease and desist from requiring the employee to leave his cubicle to administer insulin and monitor his blood glucose levels. The employer was also ordered to pay $1,000 in damages.
Finally, it should be noted that the arbitrator did observe that there may be circumstances where an employee requests privacy to administer their diabetes related medical care and stated that such requests should be granted.