Is Comfort an Employee Right Under OHSA? Ontario Arbitrator Seems to Say Yes

An Ontario arbitrator has interpreted the Occupational Health and Safety Act to require Loblaws to provide anti-fatigue mats to self-checkout clerks who experienced discomfort from standing. The decision raises the question of how far the Ontario Labour Relations Board and arbitrators can go in forcing employers to buy items not for the safety of employees, but merely for their comfort.

The Union filed a policy grievance claiming that the use of anti-fatigue mats “vastly improves [employees’] health at work”. Employees testified that without the mats, their “legs ache” and they “experience leg and back pain, sometimes severely”. Anti-fatigue mats are intended to reduce fatigue caused by standing on hard surfaces for prolonged periods of time.

The company had provided the mats for self-check-out workers, but took them away because it wanted to encourage employees to move around and assist customers, not stand in one spot.

The Arbitrator decided that the collective agreement did not require the employer to provide the mats. However, because employees felt “significantly less discomfort” and “complained of not having the mat available”, the arbitrator decided that “having the anti-fatigue mat at the u-scan podium is a reasonable precaution for the protection of u-scan clerks who work there”, invoking the employer’s duty under section 25(2)(h) of the OHSA to “take every precaution reasonable in the circumstances for the protection of a worker”. In the arbitrator’s view, the employer had therefore violated the OHSA by taking away the mats.

In my view, this is a problematic decision. The evidence of any hazard to the “health” or “safety” of workers was scant. Rather, it appears, the mere discomfort of employees was enough for the arbitrator to order the employer to provide the mats.

One wonders where this line of reasoning could lead. If one’s back sometimes gets sore when sitting, does the OHSA require one’s employer to buy a new chair to one’s liking? If one’s muscles feel sore after lifting boxes, must the employer provide a machine to lift the boxes? In my view this decision takes OHS legislation beyond where it was intended to go, and also interferes with an employer’s discretion to run its business in the way that it thinks best. will keep you posted on any developments in this area.

Loblaws Supermarkets Limited v. UFCW, 2011 CanLII 77390 (Ontario Labour Arbitrator)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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