The construction noise next to my office is unbearable. What must my boss do to accommodate us?

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I work in a small office building in an industrial zone. There’s a new building going in next door and the construction sounds are unbearable. My boss’s response was to buy everyone some foam ear plugs. He says the worst of it should only last a couple of months, but it seems unreasonable to do my job in such disruptive conditions. My ideal scenario is that we all get moved into a temporary office until the construction is complete, but I know my boss is a penny-pincher. Are there any legal laws I can reference here to force him to comply? What obligations does an employer have to ensure that our work environment is quiet? Or, should I log some type of mental health complaint? What are my options?
Balraj K. Dosanjh, partner at Cavalluzzo LLP, Toronto
Each province and territory has its own occupational health and safety laws. It is important to note these laws do vary, but generally they impose a duty on employers to protect the health and safety of their workers. These laws also set out a worker’s right to refuse unsafe work. Exposure to noise can be a health and safety risk that an employer must mitigate.
In Ontario, for example, there is a specific regulation addressing noise in the workplace. This regulation requires employers to “protect workers from exposure to hazardous sound levels.” The regulation also sets out the maximum sound level that a worker can be exposed to over a workday.
It is common for occupational health and safety laws to expect employers to first try to eliminate the hazard or try to prevent exposure to the employees by isolating them from the hazard or changing the way work is done, before resorting to wearing personal protective equipment, such as ear plugs, as the only measure to address the hazard. Even if ear plugs are appropriate, the protective equipment should be effective at addressing the hazard.
In your case, whether ear plugs are sufficient to address the hazard depends on what other options are reasonably available to your employer to address the excessive noise exposure. Depending on the nature of your work, it may be that working remotely for at least portions of the day is a measure your employer should consider. You should contact the government department responsible for health and safety in your jurisdiction for further assistance and guidance on the specific requirements on workplace noise levels where you reside.
Separately, if the noise exposure is causing you illness, you can access your company’s sick benefits and potentially worker’s compensation benefits if the illness is caused by workplace exposure to excessive noise.
Allyson Edwards, lawyer, Nixon Wenger, Vernon, B.C.
Sorry to hear about the disruption. Working in a noisy and chaotic environment can be extremely challenging and often impossible. The good news is that you do have recourse. The less good news is that you are not likely to secure a change in venue for the entire staff.
Under each province’s occupational health and safety legislation, employers are required to address workplace health and safety concerns. Your employer has taken some steps in this direction by providing the earplugs, inadequate though they may be. If the disruption persists, you should raise this with your employer and canvass alternatives such as noise-cancelling headphones or even remote work if your productivity and/or well-being are being negatively affected.
If your health is affected by the continuing din, see a doctor. Under human rights legislation, employers have a legal duty to accommodate legitimate medical needs. If your doctor believes your health is being negatively affected by the work environment, obtain a medical note that describes your medical needs and restrictions. Your employer will be required to make further accommodation efforts.
Bottom line: if your performance and/or health are being negatively impacted by the noise, continue dialogue with your employer and keep notes. If there is a legal dispute in the future, the party with the best historical records often has an advantage.
If dialogue fails, unhealthy workplaces can be reported (anonymously) to your provincial occupational health regulator and work site consultations can be requested. If you develop health concerns that are not reasonably accommodated, seek legal advice about pursuing a human rights complaint.
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