Case Law Update: Significant Damage Award for Failure to Accommodate by Providing a Smoke-Free Work Environment

In a recent Ontario Labour Arbitration decision, OPSEU (Hyland) v Ontario (Solicitor General), 2021 CanLII 26637 (ON LA), the arbitrator was asked to decide, among other things, whether the employer failed to reasonably accommodate the officer because of its failure to enforce the smoking policy, and whether the assignment of duties was inconsistent with the officer’s obligations under the agreement and with its duty to accommodate him, having regard to his disability.

The Facts

The officer was on a paid leave of absence from April 2014 to June 2014, after which he returned to work as an accommodated employee with a number of restrictions, which primarily included the requirement  for a smoke-free work environment due to asthma and a sensitivity to cigarette smoke. His accommodations also included a number of limited range duties and placement and hours of work restrictions. The employer argued that they had made reasonable efforts to provide a smoke-free workplace, and had actually enforced the smoking policy by disciplining some persons who contravened the policy.

With respect to work tasks, the primary position of the union is that the employer assigned a limited range of duties to the Grievor and often assigned him no duties, when other officers were assigned a broader range of tasks. It was argued that the grievor was assigned tasks that were covered by his restrictions and that had the effect of singling him out as an accommodated employee, having a detrimental impact on his meatal health. The union also argued that the employer’s assignment of limited duties also constituted a failure to reasonably accommodate him based on disability in contravention of the Ontario Human Rights Code.

Remedy

The only remedy the Union requested in this case was monetary damages. The arbitrator agreed that the employer discriminated against the employee on the basis of disability and failed to reasonably accommodate him with respect to work assignments, and awarded damages accordingly since the majority of the evidence concerned the work assignment issue. The arbitrator also concluded that the employer’s failure to enforce the smoking policy and the impact of this on the officer’s accommodation had caused the officer a significant amount of stress and anxiety.

Impact

While the arbitrator did not specifically award damages for the failure to enforce the smoking policy, this decision leaves the door open for arbitrators to consider enforcement of smoke-free workplaces in assessing damages for duty to accommodate. The arbitrator ultimately held that a failure by the employer in the future to reasonably enforce the smoking policy could result, depending on the facts, in a finding that the employer had failed in its duty to reasonable accommodate the employee and others in similar situations.

This may of particular pertinence to DS employees working in SIL  or community settings, or where people supported are themselves smokers.  Employers must ensure that they take all reasonable measures to provide a healthy and safe working environment for employees, and provide accommodation to the point of undue hardship to employees who have smoke-related disabilities (such as allergies).