Abstract

Environmental sensitivities are a group of poorly understood medical conditions that cause people to react adversely to environmental triggers. The Canadian Human Rights Commission commissioned this report, in which the researchers seek to establish the status of the issues related to environmental sensitivities from a legal perspective and as these relate to the protection of human rights. The researchers examined case law, consulted experts and examined secondary sources on accommodation of people with environmental sensitivities in Canada, the United States, Australia, New Zealand and the United Kingdom, in order to answer several questions in the Canadian context: What is the status of the case law in these jurisdictions? Do building codes act as barriers to people with environmental sensitivities? What best practices emerge from the case law? How are conflicting interests reconciled? How can third parties be involved in the accommodation process? Where is the threshold of undue hardship? How are conflicts regarding accommodation preferences resolved?

Executive Summary and Recommendations

The Canadian Human Rights Commission commissioned this research project to examine past legal assessments of accommodation for environmental sensitivities, including how third parties may be involved and the relevance of buildings codes and standards. Environmental sensitivities are a complex and often poorly understood group of chronic conditions. Individuals with environmental sensitivities experience adverse reactions to environmental agents that are prevalent throughout the built environment and include electromagnetic fields and the chemicals found in building materials, furniture, cleaning and copying products, fragrances and pesticides.

Canadian and Australian approaches to disability are very broad, and environmental sensitivities are readily accepted. In contrast, the Americans with Disabilities Act applies a very restrictive test for an individual to qualify as a person with a disability, and individuals with environmental sensitivities are regularly denied protection. Because of the scientific confusion regarding sensitivities, individuals have difficulty finding and providing expert evidence in the United States, and may have this difficulty in Canada as well.

Accommodations that individuals with environmental sensitivities may require generally involve minimizing the use of triggering substances, filtering triggers from the environment or avoiding the trigger-filled environment. Each type of accommodation may meet the test of undue hardship in Canada, but will depend upon the circumstances of the accommodating entity. The entity may be able to require the individuals non-attendance, where attendance would be detrimental to his or her health, and the entity may be required to use enforcement mechanisms to ensure that third parties co-operate with accommodation measures. Each of these types of accommodation has been rejected in the United States. There is little relevant jurisprudence in Australia and none in the United Kingdom and New Zealand.

The researchers identified only one case in which the barrier identified was a building rule—namely, a condominium by-law requiring wall-to-wall carpeting. While no cases involving barriers in building codes were identified, the standards fall far short of accommodating individuals with environmental sensitivities. Governments in the United States and Australia are attempting to implement rules under which people with environmental sensitivities will be partially accommodated.

When accommodating any disability, the same considerations of dignity, individual assessments and independence apply. Many businesses have implemented fragrance-free and chemical avoidance policies, some will provide special equipment or renovate their spaces, and others have transferred, reassigned or retrained employees with environmental sensitivities. Nonetheless, the areas of necessary accommodations are broad and many non-traditional sectors must consider their accommodation obligations.

Recommendation 1: Where an individual with a poorly understood disability is unable to provide expert medical evidence, the employer, service provider or other decision maker should seek an informed expert opinion on the effects of the condition and the resulting accommodation needs.

Recommendation 2: Employers, service providers and other decision makers should ensure that, if accommodation requests are rejected, it is not because the medical evidence provided is not as unequivocal as it may be with other disabilities: knowledge and understanding of the condition is still developing, and expectations regarding medical evidence should reflect this.

Recommendation 3: When reviewing their building codes, governments across Canada proactively address issues related to accommodation of people with disabilities, especially disabilities that are difficult to address retrospectively, such as environmental sensitivities.

Recommendation 4: Employers and service providers should develop and enforce fragrance-free and chemical avoidance policies, including promoting educational campaigns to increase voluntary compliance with such policies.

Recommendation 5: Employers and service providers, for their staff and service recipients, should develop or adopt educational material and programs for accommodation of people with environmental sensitivities, to increase voluntary compliance with such policies.

Recommendation 6: Employers and service providers should proactively take steps to minimize chemical use, purchase less-toxic products, and advocate with the construction and manufacturing industries to produce less-toxic materials.

Recommendation 7: The Commission should undertake or continue educational campaigns that encourage proactive accommodations, including in non-traditional areas of accommodation, such as national parks or other green spaces.