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THE QUESTION
I’m a server at a restaurant and one of our tasks at the end of the day, after we’ve closed and cleaned up, is to roll up silverware into napkins for the next day. It only takes us about 15 to 20 minutes, but our manager says we have to do it standing up. After being on my feet for hours, it seems inhumane not to allow us to rest for a few moments when the task can be performed just as well seated. Are there any legal implications or labour laws I can reference in order to get our manager to let us sit while doing roll-ups?
THE FIRST ANSWER
Nadia Halum Arauz, lawyer, Simes Law, Toronto
Unfortunately, there is no specific law that prohibits enforced standing in the workplace. If there were, I’m sure we would see a lot more chairs in retail stores. There are, however, a few laws that could be invoked. Firstly, all provincially regulated employers, such as restaurants, must abide by their provincial human rights legislation. While human rights laws may vary from province to province, they all contain a mandatory obligation for employers to accommodate employees’ needs arising from different protected grounds, such as disability, up to undue hardship. In other words, if an employee needs to sit as a form of accommodation because of a disability, generally speaking, the employer will be obligated to permit the employee to sit, unless the employer can prove that allowing sitting is undue hardship (which is a very high standard for the employer to meet).
If the employee is not disabled, they can turn to their province’s occupational health and safety laws for guidance. Technically, employers must take every precaution reasonable in the circumstances for the protection of a worker (or some comparable duty outside of Ontario). This catch-all obligation is invoked in circumstances from failing to install guardrails to failure to provide adequate supervision. Standing for long periods of time, especially after being on your feet all day, can lead to musculoskeletal disorders like lower back strains. Is allowing employees to sit if the duty they are completing does not require them to be standing, a reasonable precaution for the protection of a worker? Arguably yes. Perhaps by framing it as a matter of health and safety, the employer may take it more seriously.
Acquaint yourself with the health and safety legislation in your province: in Ontario for example, every workplace where the number of workers regularly exceeds five must have a health and safety representative, and workplaces with more than 20 workers must have a joint health and safety committee. These representatives have the power to identify situations that may be a source of danger or hazard to workers and to make recommendations of their findings to the employer.
THE SECOND ANSWER
Sophie Purnell and Benyat Abdulwahab, Purnell Employment Law, Calgary
Occupational health and safety laws in Canada require employers to ensure the health, safety and welfare of their workers. Employers must address health and safety issues promptly, even if no one has been injured yet. In your case, sitting while rolling silverware after an eight-hour shift could be seen as a reasonable way to ensure the safety and welfare of workers and prevent injuries.
Some provinces, like Alberta, require a health and safety representative or committee for workplaces with a certain number of employees. If your workplace has one, you can bring your concerns to them and they can help address it with your employer. If you raise a health or safety concern, your employer cannot retaliate by, for example, cutting your shifts. Workers can exercise a right under occupational health and safety legislation without facing disciplinary action.
Failing to comply with occupational health and safety legislation could result in penalties for your employer. Additionally, addressing safety matters proactively can reduce premiums payable to fund workers’ compensation insurance.
If you have a health condition or disability, human rights laws may require your employer to accommodate you. This means your employer would need to find a solution unless it causes “undue hardship.” Examples of undue hardship include accommodations that are too costly or cause a safety risk in the workplace. You may need to provide medical documentation if requesting accommodations.
If the problem continues, you may want to speak with an employment lawyer in your area for more advice, as your rights can vary by province.
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