Health and Safety Issues Are a Two-Way Street

James worked at a plant that manufactured blankets designed to trap sediment while allowing water to flow through the product.

The blankets contained a mixture of straw, flax and peat moss. The plant was a very dusty place to work, even in the office.

James started out in the bale-busting area, where they took apart bales of hay to combine with other products. After three years of doing this, James became ill. He experienced shortness of breath, chest pain and sometimes coughed up blood.

Eventually he saw a respirologist. James had to either leave his job or find a way to avoid breathing in all that material.

James was off work for a couple of months and then cleared to return. He was moved to the less dusty peat moss station.

At this time, the employer decided it would be a good idea to buy all of its employees masks with particulate filters. James was told that given his medical history, he had to wear the mask at all times when he was in the facility.

Despite the fact that he was the one coughing up blood, James didn’t like wearing the mask. He received a warning letter for having failed to wear the mask at all times. Despite that letter, it happened again and James was seen repeatedly without the mask.

The employer told James that if he wanted to work without a mask, he needed the consent of his respirologist and the provincial Workplace Safety and Insurance Board.

James never obtained that consent, but continued to resist wearing a mask. In a second warning to James, the employer told him that if he persisted he would be terminated.

One day, several employees told the boss that James had not been wearing his mask. When the boss asked James if he had been wearing it throughout the day and at all times, he claimed he had.

James was fired for not wearing his mask — and for lying about it. The employer offered him no severance of any kind since it was their position that there was just cause for the termination.

James filed a complaint with the provincial labour ministry claiming termination pay. He argued that it should have been up to him whether he wore a mask or not and he thought he was OK without one in the peat moss area.

The problem with James’ argument was that it ran right up against the law.

The provincial Occupational Health and Safety Act puts the responsibility on the employer to take care of the health of its employees — whether they want the employer to protect them or not. In addition, the harm was not just to the employee if they got sick, but also to the employer. Putting aside absenteeism, work-related injuries and illnesses can have very expensive cost consequences for employers when workers make compensation claims.

The arbitrator found the employer’s decision to require James to wear a mask at all times in the plant was reasonable and had been clearly communicated. Just because James thought he knew better did not mean the employer did not have a right to set what was a reasonable rule, given James’ history.

Health and safety issues are a two-way street. It is the employer’s obligation to do everything it reasonably can to protect the health and safety of employees and it is the responsibility of those employees to follow reasonable rules set by the employer. James laboured under the misconception that because it was his health being put at risk, it was his choice.

He was wrong.

Ed Canning practises employment and human rights law with Ross & McBride LLP, in Hamilton, representing both employers and employees.

This article was originally published by The Hamilton Spectator.