Overview

Expanding Knowledge

Research Program

Accommodating Environmental Sensitivities: State of Knowledge

Because of the common use of chemicals throughout society, the spheres where individuals with environmental sensitivities may request accommodation are countless. While what are appropriate accommodations will depend on the individual’s circumstances, the following is a list of some of the types of accommodations identified in the jurisprudence and secondary literature and through the researchers’ consultations:

• Establishing and enforcing fragrance-free policies;
• Instituting a non-smoking policy that requires smokers to remain at a distance from entrances and ventilation intakes and that provides designated closets for the jackets and belongings of smokers;
• Carpet-free environments;
• Ensuring that the environment is not recently renovated and that all furniture and products are sufficiently used that they are no longer off-gassing;
• Informing the individual of planned cleaning, renovations or furniture purchases so that they may be involved in selecting products or may refrain from attending during that period;
• Eliminating or reducing chemical spraying, especially near ventilation intakes, and, if the spraying is unavoidable, informing individuals beforehand;
• Flexible work options, including telecommuting;
• Windows that open;
• Activated carbon or activated-charcoal-filtered air cleaners;
• Office locations away from copying and cleaning products and indoor traffic;
• Providing books that are sufficiently used that they will not off-gas, and that do not contain moulds or dust;
• Providing low-electromagnetic-field equipment;
• Not including perfume advertisements in magazines or limiting access to them;¹³ and
• Establishing no-idling policies.

This list provides examples of accommodations that an individual may seek, but consideration is not given to whether such accommodations would be required of a covered entity or whether they are too onerous and would impose an undue hardship. As for other forms of accommodation, section 15(2) of the Act dictates consideration of health, safety and cost in the determination of what constitutes an undue hardship.

In the sections that follow, the authors will review jurisprudence on how this test is applied in the context of environmental sensitivities. In addition to accommodation steps taken by employers and by service and facility providers, full accommodation of environmental sensitivities may require that proactive steps be taken by co-workers, neighbours and other service users. Issues therefore arise with regard to how the interests of different parties are reconciled and how the various parties are involved in the accommodation process. The authors also explore the extent to which courts have considered sufficiency of government policies and standards on building codes as they relate to accommodation for environmental sensitivities.

In conducting their research, the authors examined cases that have arisen in comparable contexts as well, including those of asthma and allergies, as they provide useful insight into what are considered reasonable accommodations.

a. Canada

Section 15(2) of the Act specifically outlines the factors that may be considered in assessing what constitutes an undue hardship: health, safety and cost. Other Canadian approaches to disability protection, such as those of Ontario, specify similar considerations for what constitutes an undue hardship and is therefore not a required accommodation.¹⁴

Searches of Canadian jurisprudence revealed a surprising number of administrative decisions relating to environmental sensitivities. However, many of these do not address the specific issues that form the subject of this research as they relate to causation of injuries under workplace safety and insurance regimes,¹⁵ turn on evidentiary issues, such as whether an employer was aware of a disability,¹⁶ or conclude that the employer did appropriately attempt to accommodate an employee without considering the undue hardship test.¹⁷ The decisions that relate to undue hardship have several general themes: the extent to which a covered entity must allow for non-attendance at its place of business, reasonable adjustments to the building or other accommodations, continuing to work when the workplace is injurious, and balancing conflicting interests.

1. Non-attendance

The first theme, that of non-attendance at the place of business, is one that is frequently referenced in the jurisprudence, though few decisions include a full undue hardship analysis. Such alternative attendance arrangements may include telecommuting or alternative work placements. The appropriateness of these means of accommodation largely depend on the particular circumstances of the employment and the entity providing the accommodation.

In Harris, a student complained of non-accommodation when she was required to attend a particular class, rather than being allowed to record the lectures or rely on notes taken by other students.¹⁸ The tribunal considered the nature of the course and held that, since a major and reasonable purpose of the course was to develop skills through student interactions, non-attendance was not an appropriate accommodation. Instead, ensuring access to seating by an open window was an appropriate accommodation. However, in other courses that the student had taken where development of interactive skills was not the purpose of the course, the College was correct to accommodate the student by allowing her to record lectures or rely on student notes.

The Anderson Grievance decision also addresses this issue, albeit in obiter.¹⁹ The grievor complained of the employer’s non-accommodation after it failed to assign tasks that would allow the individual to remain away from the office during renovations. The employer argued that assigning such tasks would constitute an undue hardship, as the only non-office responsibilities within its business required that the individual drive. It argued that driving would be an inappropriate accommodation because, if the individual was unable to work in a dusty office during renovations, the individual also could not work out of the office doing tasks requiring driving, because of dust on the road. The arbitrator dismissed the grievance for lack of jurisdiction, but commented that the employer would likely have been unable to meet the undue hardship test, because of a lack of medical evidence concerning dust while driving. The arbitrator implicitly accepted the reasonableness of assigning the employee, at least temporarily, tasks out of the office.

In Hutchinson, the Public Services Staff Relations Board chastised a grievor for not accepting the reasonably proposed accommodation of telecommuting after alternative accommodation attempts, including requests to refrain from wearing fragrances and the purchase of an air cleaner and respirator, were unsuccessful.

Similarly, a grievor who wished to be accommodated by being allowed to work half-days was unsuccessful in her claim of non-accommodation.²⁰ The Board held that the claimant had unreasonably refused to be accommodated by working full time at an alternative location, whereas the employer had a reasonable operational justification for refusing to allow her to work part time.

2. Other accommodations

Alterations within the building environment, use of different cleaning products, and policies on fragrances and smoking are a more commonly discussed form of accommodation. However, there is almost no Canadian jurisprudence on the subject. These accommodations can range from those that are quite easily implemented, such as altering cleaning products used, to drastic building changes. The reasonableness of the accommodation can therefore vary drastically, depending on the nature of the request and the entity of which it is requested.

In Abetkoff, the Saskatchewan Human Rights Commission initially rejected a complaint of non-accommodation by an individual with a smoke allergy working in a smoke-filled casino, as it had determined that there were no accommodations available that were not unduly burdensome.²¹ Upon review, the Tribunal held that the employer had not fully considered the reasonableness of creating a smoke-free part of the casino. The Tribunal directed that, to establish that this would cause an undue hardship, the employer would have to conduct a full cost-benefit analysis. The Tribunal’s decision was not a final disposition of the matter, as it was referred back to the Commission, but it clearly demonstrates the fulsome analysis that a covered entity will have to conduct, especially in relation to smoking policies that benefit individuals beyond just those with a smoke-related disability.

Similarly, in the Hyland Grievance, the Grievance Board held that an employer failed to meet its duty to accommodate when it refused to provide a prison guard with a smoke-free placement.²² This was a reasonable accommodation, as the employee remained capable of working in a non-smoke-free environment as required during emergencies.

In a somewhat related decision, the Federal Court (Trial Division) considered a claim by an individual with environmental sensitivities that he had been subject to cruel and unusual punishment when incarcerated.²³ The Court considered the steps that the prison had taken to accommodate his disability, including attempting different assignments within the institution, providing special equipment and developing alternative living arrangements, and the Court concluded that the prison had taken all reasonable steps to accommodate him. The Court specifically rejected the proposal that the prison construct a special cell, not because of the expense associated with this, but because this was not feasible in light of the institution’s construction schedule.

3. Continuing to work when environment harmful

A final theme that the researchers have discovered in the Canadian jurisprudence relates to refusals to work or insistence on working in an environment that is harmful to an individual with sensitivities.

Administrative decision makers have considered whether an employer can terminate an individual with sensitivities because the individual cannot be accommodated when he or she wishes to continue working in the harmful environment. In the Gooch Grievance, the employer terminated the grievor because it was unable to accommodate him by keeping him free from exposure to fumes, smoke and dust after several unsuccessful accommodation attempts.²⁴ The grievor argued that he was wrongfully terminated, as he was willing to continue to work in the harmful environment. The Board held that the employer was correct to terminate the employee against his objections, in light of the uncontradicted harm his continued employment would have caused him.

Similarly, in Paradowski, an animal hospital terminated an employee because of her allergies to animals.²⁵ It argued that it could not allow her to continue to work there and regularly ingest medications to minimize her allergic reactions. The Tribunal refused an application to dismiss the complaint, but has not made a final determination in the matter.

In addition to an employer’s ability to terminate an employment relationship when it cannot be accommodated without ongoing adverse health effects on the employee, the employee may refuse to work in unsafe environments. The Canada Labour Code, for example, allows an employee to refuse unsafe work.²⁶ Under the current interpretation of the federal legislation, this right to refuse unsafe work includes the right to refuse work that is unsafe because of a combination of the worker’s medical condition and the conditions of the workplace.²⁷

4. Balancing conflicting interests

Often, when accommodations are sought, the interests of third parties are affected. This issue arises particularly clearly in an unionized environment where an accommodation may require that provisions of the collective agreement be disregarded to allow an individual to have increased sick leave, adopt flexible work arrangements or transfer positions. In Canada, courts and tribunals have interpreted the specific description of undue hardship considerations as rendering irrelevant the preferences of third parties or the terms of collective agreements, unless they create an undue expense.²⁸

While the test and the relevance of these factors is the same when accommodating for environmental sensitivities or other disabilities, the types of accommodation that may be required for sensitivities make the issue particularly relevant. To accommodate an individual with a sensitivity to fragrances or smoke, other employees and customers may be required to refrain from using fragranced grooming or laundry products.

The researchers did not identify any Canadian jurisprudence where such a policy was assessed against the undue hardship standard, but it was often an accommodation that had been attempted by respondents to a grievance or complaint. Through their consultations and literature review, the researchers learned of numerous entities across Canada that have implemented fragrance-free policies or asked people in their offices to voluntarily refrain from using fragranced products.²⁹ The primary issue that arises is not one of the appropriateness of such policies, but rather of their enforcement. This issue is discussed in greater detail below.

As there is no right to wear fragranced products, the only conflict related to fragrance policies is one of interests, not rights.³⁰ However, rights-based conflicts have arisen and been discussed in the jurisprudence regarding service animals and allergies to animals. In Dewdney, a woman complained that a taxi driver refused her service because she used a service animal.³¹ The Tribunal held that the driver’s animal allergy constituted a disability and the two conflicting accommodations had to be balanced against one another. Because the passenger could easily obtain services from another driver without an allergy, the Tribunal found for the taxi company and its appropriate balancing of these conflicting rights.

This issue was also considered in Fitton, where several passengers with service animals were not able to board a plane, as the pilot had severe allergies to dogs.³² The Agency concluded that the airline had fulfilled its obligations by considering less intrusive alternatives, although none were operationally feasible. Nonetheless, the Agency recommended that the airline investigate development of a system that would cross-reference this information in its booking system.

At present, it is unclear whether smoking or addiction to nicotine will qualify as a disability requiring accommodations.³³ Should it qualify, issues similar to those related to animal allergies will arise, as the accommodation of smokers and those allergic to smoke may be in conflict with one another.

ii. Involving the various parties

Numerous parties may need to be involved in the accommodation process for it to be effective: employers, colleagues, commercial landlords, residential landlords, neighbours and service recipients. During their consultations, the researchers learned that, often, these parties are involved in the accommodation process through education and voluntary compliance. Just as harassment is prevented through both education and enforcement, so too is co-operation with the accommodation of environmental sensitivities.

For example, Nancy Bradshaw of the Environmental Health Clinic and Women’s College Hospital in Toronto speaks to employers and employees on development of fragrance-free policies in the workplace.³⁴ She finds that, because a large portion of the population reports some sensitivity to fragrances and has a general understanding of asthma, a condition with similar environmental triggers, many individuals will voluntarily comply with fragrance policies. If unable to eliminate exposure to triggers, partial compliance will at least reduce the toxins from fragrances in the environment.

However, the main question is what to do when voluntary measures are unsuccessful. Is an employer required to discipline or terminate employees for non-compliance? Must a service provider refuse service to clients? Must a condominium or apartment building evict residents for not complying with smoking rules?³⁵ The answer to this question, as with all other accommodation, depends on the particular circumstances giving rise to the request for accommodation.

In Hyland, a prison guard filed a grievance for non-accommodation for his smoke sensitivity.³⁶ The Board held that the employer failed to accommodate by not enforcing its non-smoking policy and that it was unreasonable for it to require the grievor to identify those individuals breaching the policy, as this would result in his isolation from colleagues.

In Maljkovich, the Crown was ordered to pay compensation for breach of its common-law duty to provide a prisoner with a smoke allergy with a healthful environment.³⁷ The prisoner had been regularly exposed to smoke during his incarceration, and the Court held that the defendant should have taken the reasonable step of monitoring compliance with the non-smoking policy. As in Hyland, the Court held that the prison’s reliance on guard observation of policy breaches or complaints being raised was unreasonable. Instead, enforcement of the policy should have included better monitoring of smoke-free spaces or smoke detectors to alert prison officials to policy breaches.

The Ontario Rental Housing Tribunal has considered the health effects of smoking on residential neighbours.³⁸ In Feaver, a landlord with health reactions to smoking sought to evict a tenant living below her because smoke passed between units through the ventilation system. While unable to conclude that her health effects were caused by the smoke, the Tribunal concluded that the smoke was preventing her reasonable enjoyment of the property and ordered the tenant to stop smoking in the unit. Should the tenant fail to comply with this order, the Tribunal ordered that the tenant could be evicted.

The researchers have not identified decisions specific to fragrance policies or other decisions that relate to the issues of enforcement against service recipients or in housing. The visibility of smoking and the general prevalence of smoke-detecting equipment make infringements of smoke-free policies simpler to identify and enforce than fragrance-free policies. Practically speaking, the ability to enforce fragrance policies is much greater with respect to employees than service recipients. In some environments, such as hospitals, enforcement of such policies against service recipients would be nearly impossible, as there is a right to receive services.

b. United States

Because of the dissimilarities between the ADA and the Act, comparisons with American jurisprudence must be made cautiously. Many conditions not easily recognized as disabilities in the United States, such as environmental sensitivities, do or would qualify in Canada (see discussion of definitions of disability above). Accommodations that have been rejected as unreasonable or as posing an undue hardship in the United States, such as the provision of sign-language interpretation services, may be required in Canada. The researchers therefore caution readers with regard to drawing conclusions from the cases outlined below.

i. Undue hardship

The ADA requires that proposed accommodations be both reasonable and not pose an undue hardship. Accommodations constitute undue hardship when they require actions that are significantly difficult or expensive. In making this determination, relevant factors to consider include the nature and cost of such accommodation, the financial resources of the enterprise, the number of individuals employed by it, the type of facilities it has and the type of operations carried out by the covered entity.³⁹ However, accommodations characterized as "personal devices and services" are not required as a form of accommodation where they are devices that the individual also requires outside the workplace.

Searches of American jurisprudence revealed a surprising number of decisions relating to environmental sensitivities that had either survived argument on the definition of disability or where this issue had not been addressed. The decisions that relate to undue hardship have several general themes: allowing for non-attendance at the workplace, providing a chemical-free environment, making alterations to the building and job restructuring.

1. Non-attendance

While the courts have been careful to state that they do not reject non-attendance options in all circumstances, in each case that the researchers have identified that relates to this issue, non-attendance was rejected because it was held to be an unreasonable form of accommodation.⁴⁰

In Jones, the Court rejected an employee’s proposal to be accommodated by being allowed to work from home, as the employee would not have had sufficient access to documents and people and would have created an unreasonable administrative burden.⁴¹ Quoting the Vande Zande decision, the Court addressed the appropriateness of such accommodations:

Most jobs in organizations public or private involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee's performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home...⁴²

Similarly, in Whillock, the Court held that the employer was not required to allow an airline telephone agent to work from home, as the required computer equipment is normally in constant use and does not sit idle when a particular individual is not on duty.⁴³ Additionally, it was necessary to ensure the security of information and for the employee to have in-person interactions for supervision, mentoring and training. The Equal Employment Opportunity Commission (EEOC) similarly rejected such a work arrangement as unreasonable in Roth.⁴⁴

In Keck, the complainant proposed working during off-peak hours, such as evenings and weekends, and proposed that smoke and perfumes be banned during those times.⁴⁵ Despite the fact that she had been allowed to work in this way previously for three years, the Court held that it did not constitute a reasonable accommodation, as supervision would not be possible. In Heaser, the Court similarly rejected a work-from-home arrangement, even though an individual had previously worked from home for three months, with no performance issues.⁴⁶

2. Provision of a chemical-free environment

American courts have been similarly dismissive of proposals to accommodate for environmental sensitivities by providing a chemical-free environment. Generally, such accommodations are rejected on the basis that the accommodation requests are for personal devices and so the accommodations are not required by the ADA.⁴⁷

In Jones, the Court considered a request to accommodate for sensitivities by avoiding exposure to the triggering substances:

In this situation, there is only so much avoidance that can be done before an employer would essentially be providing a bubble for an employee to work in… An employer is not required by the ADA to create a wholly isolated work space for an employee that is free from other co-workers... The ADA does not mandate the creation of a co-worker free bubble for Jones.⁴⁸

By contrast, providing a smoke-free area of the office to an individual with a sensitivity to smoke has been accepted as a reasonable accommodation.⁴⁹

In Comber, the complainant argued that her employer had unreasonably refused an accommodation request not to drive a particular vehicle on a particular day, as a strong deodorizer had recently been used in it. After rejecting evidence on environmental sensitivities as not being scientifically based, the Court held that the accommodation was not a reasonable one, as it would require the employer to respond to her "sense" of fragrances instantaneously.⁵⁰

3. Building adjustments

Various renovations or changes to the building environment have been proposed and accepted in the case law. The cost of such adjustments and who will be funding them are primary considerations when determining their appropriateness.

In Lincoln Realty, the Pennsylvania Human Relations Commission ordered the largest number of accommodations that the researchers found for any individual with sensitivities. The Commission ordered the following:⁵¹

1) The landlord must allow the tenant to install a kitchen ceiling fan at the tenant’s expense;
2) The landlord must remove the dishwasher and seal the pipes at its own expense;
3) The landlord must permit the tenant to install a washer and dryer in her unit at her own expense;
4) The landlord must install an exhaust fan in the laundry room and install a control switch on the first floor level, at its own expense;
5) The landlord must either paint or wallpaper the hallways of the building, using a less toxic paint and in consultation with the tenant, at its own expense;
6) The landlord must attempt to address any pest problem with the least toxic pesticide application possible, in consultation with the tenant and at its own expense;
7) The landlord must allow the tenant to either recover or uncover her floors at her own expense;
8) Within 100 feet of the building, the landlord must attempt to implement an organic lawn care program at its own expense; and
9) The landlord must provide to the tenant notice of pest and lawn treatments with toxic materials and all painting.

On appeal, the Court either upheld all of the accommodations or remanded them to the Commission for determination on particular issues, none of which related to their reasonableness or the hardship they might pose.

In Nanette, the Court held that, in their entirety, the accommodations requested by the claimant were unreasonable and she was therefore unable to perform the job safely.⁵² She had requested that the employer ensure that, in her work environment, no cleaning chemicals be used in her presence, there be good fresh air circulation, she not be located near a copier, there be no recent paint, carpet, glue or furniture, there be no perfumes, it be possible to open the windows and there be no construction.

As these two very different cases demonstrate, the outcome in each case depends on the identity of the covered entity and on who is funding the requested accommodations. However, the Nanette decision is more reflective of the jurisprudential treatment of accommodation requests by individuals with sensitivities.

4. Job changes

An alternative accommodation that may be explored is job restructuring. Where the individual’s position requires attendance at the office or exposure to chemicals (as in the case of a factory worker), job changes or restructuring may provide a feasible alternative. However, the American courts have regularly held that employers are under no obligation to accommodate in such a way.

In Mulloy, the Court, while recognizing the possibility of job restructuring as a reasonable accommodation, held that "an employer need not exempt an employee from performing essential functions, nor need it reallocate essential functions to other employees…To request elimination of an essential function as an accommodation is… ‘not, as a matter of law, a reasonable or even plausible accommodation.’"⁵³

In McAlpin, an employer’s refusal to create a vacancy by transferring an employee with a position that did not involve chemical exposure was upheld by the Court.⁵⁴ The Court held that "[a]n employer has no duty whatsoever to create a new job out of whole cloth, or to create a vacancy by transferring another employee out of his job."

In Bazert, the Court, while not ordering that the employer create a new position, did order it to return an individual to a previous position that was free from exposure to smoke, fragrances or cleaning products.⁵⁵ The Court’s conclusion on the reasonableness of this accommodation was different from those above because the discriminatory action was transferring him out of the position where he was accommodated, rather than the complainant occupying a position and requesting to be transferred.

ii. Conflicting interests and involving the various parties

The research revealed only one decision on how conflicting interests can be balanced or third parties involved. The Temple decision considers the involvement of third parties in accommodation for a sensitivity and in enforcement.⁵⁶ The complainant was a tenant with environmental sensitivities who had been accommodated through duct cleaning, changing the cleaning products used, not painting, and removing carpet. When a tenant living below the complainant began using cleaning products that triggered health reactions, she was asked to change the product that she used and to put tin foil over her vents. The complainant continued to be exposed to the cleaning products and asked that the tenant below her reduce her use of cleaning products. When she failed to do so, the complainant asked that the tenant be evicted.

The Court held that this was an unreasonable accommodation as it would have resulted in evicting the longer-term tenant in favour of a new tenant. Just as it would be unreasonable to eject a senior employee from his or her position, evicting the longer-term tenant was unreasonable, as the Court ought to respect third-party interests.

Despite the somewhat limited legal requirement to involve third parties, the voluntary adoption of fragrance-free policies is as much an option as it is in Canada.

There is a single decision of relevance in Australia. In Lewin, the Australian Capital Territory Discrimination Tribunal considered an accommodation request made by a woman attending group therapy—specifically, a request that the organizers implement a no-fragrance policy.⁵⁷ Rather than instituting such a policy, the facilitators asked those in attendance at the first session to refrain from wearing fragrances in the future (though the accommodation request had been submitted prior to this session). The Tribunal held that such an accommodation did not pose undue hardship and that the facilitators’ failure to request compliance prior to the first session and to take positive action subsequently to prevent exposure was discriminatory.

d. United Kingdom and New Zealand

As noted above, the authors reviewed the jurisprudence of the United Kingdom and New Zealand. However, they were unable to identify any cases relevant to this research.

e. Conclusion

Through this review of domestic and international jurisprudential considerations of how to accommodate for environmental sensitivities, a number of conclusions can be drawn specific to the Canadian context. Canadian courts do not generally follow the American example in disability accommodation because of the very different definitions of disabilities and approach to accommodation (as discussed above). Nonetheless, the number of relevant Canadian decisions is large enough to draw thematic conclusions.

i. Undue hardship

Few proposed accommodations for environmental sensitivities have been found to constitute an undue hardship. While one can expect that a wholesale building renovation would be an undue hardship because of the cost involved, whereas minor alterations would not, none of the Canadian decisions on environmental sensitivities consider the appropriateness of such proposals.

However, arrangements to avoid the workplace when it cannot be made appropriate have been considered. This accommodation depends on the specific nature of the employee’s position or of other positions in which it may be possible to place him or her. Nonetheless, Canadian courts are more willing to accept the appropriateness of alternative work arrangements, whether temporary or permanent, than are their American counterparts.

Unlike the situation with the conclusions drawn by the American courts, it can be expected that Canadian decision makers will continue to find that a non-smoking policy does not pose an undue hardship. We expect that the same rationale will likely apply to fragrance policies. Similarly, a covered entity would likely be expected to use less-toxic cleaning materials, pesticides and paints.

ii. Conflicting interests

In Canada, there generally will not be conflicting interests that warrant consideration in the human rights analysis. As with other disabilities, the preferences of third parties do not constitute an undue hardship and are irrelevant to the analysis.

Nonetheless, some interests are affected through enforcement, as discussed below, and some disabilities may require a balancing of conflicting rights to accommodations. Where two disabilities require conflicting accommodations, decision makers will first consider whether alternative means of accommodation exist that do not pose a conflict. If no such accommodation exists, the conflicting interests must be balanced against one another to determine which accommodation will impose less hardship on the covered entity or on the individuals. In Fitton, only one of the accommodations was operationally feasible; therefore, the employee was immediately accommodated and the service recipients were inconvenienced while they awaited a time when they could be accommodated without significant difficulty.

iii. Involving the various parties

Canadian courts and administrative decision makers have not only concluded that employers and service providers are required to enforce smoking policies by disciplining employees or evicting tenants, but also have concluded that an entity cannot rely solely on complaints of non-compliance for enforcing the policy. Instead, the entity may be required to purchase smoke detectors at a reasonable expense. These decisions are certainly applicable to the enforcement of fragrance policies, though detection of infringements may be more difficult and would require the purchase and use of fragrance-detecting devices, the availability of which is unknown and beyond the scope of this project.⁵⁸

13. While the authors have identified no Canadian equivalent, American postal legislation and regulations require that fragrance advertising samples in the mail be sealed or wrapped to prevent accidental exposure (39 U.S.C. § 3001(g) and Domestic Mail Manual, 601.11.15).
14.See e.g. Human Rights Code, R.S.O. 1990, c. H.19, s. 17(2).
15.See e.g. Dalhousie University v. Nova Scotia Government Employees Union (MacDonald Grievance), [2001] N.S.L.A.A. No. 12.
16.See e.g. Peace Wapiti School Board #33 v. General Teamsters, Local Union No. 362 (Kwasniewski Grievance), [2003] A.G.A.A. No. 92.
17.See e.g. Coles and Treasury Board (National Defence), [1998] C.P.S.S.R.B. No. 37.
18.Harris v. Camosun College, [2000] B.C.H.R.T.D. No. 51.
19.Re. Alberta and Alberta Union of Provincial Employees (Anderson Grievance) (1996), Alta. G.A.A. File No. 96-075 (not published).
20.Guibord and Treasury Board (Transport Canada), [1995] C.P.S.S.R.B. No. 114, upheld on appeal [1996] F.C.J. No. 1534.
21.Abetkoff v. Saskatchewan Indian Gaming Authority, December 31, 2002 (SK H.R.T.).
22.Ontario (Ministry of Correctional Services) and O.P.S.E.U. (Hyland) (Re), 115 L.A.C. (4th) 289 (Ont. Cr. G. S. B).
23.Kelly v. Canada, [1996] F.C.J. No. 880.
24.IKO Industries Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 773 (Gooch Grievance), [1999] A.G.A.A. No. 63.
25.Paradowski v. Sunshine Valley Animal Hospital Ltd., [2004] B.C.H.R.T.D. No. 442.
26. R.S.C. 1985, c. L-2, s. 128. See also Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 43(3).
27. Federal interpretation policies and jurisprudence conclude that unsafe conditions must be caused by the workplace itself, not a medical condition of the employee (see e.g. Human Resources and Skills Development Canada, Interpretations, Policies and Guidelines on Occupational Health and Safety, Part II of the Canada Labour Code, Refusals to Work and Medical Certificates, No. 905-1-IPG-031). However, where the dangerous situation is a result of a medical condition AND the conditions of the workplace, the right to refuse work arises, albeit with great evidentiary difficulties in establishing causation (see e.g. Bugden and Treasury Board, [1988] C.P.S.S.R.B. No. 236; United Parcel Service Canada and Smith, [2000] C.L.C.R.S.O.D. No. 15; Webber and Treasury Board, [1993] C.P.S.S.R.B. No. 85; Timpauer v. Air Canada, [1985] F.C.J. No. 184). In contrast, the equivalent Ontario interpretation manual specifically states that a worker has the right to refuse work that is unsafe because of his or her "susceptibility" to the conditions at the workplace (Ontario Ministry of Labour, Operations Division, Policy and Procedures Manual, "Work Refusals Guidance Notes," l (22 August 2005) at 56).
28. See e.g. British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (Meiorin Grievance), [1999] 3 S.C.R. 3 at para. 80; R. v. Cranston, [1997] C.H.R.D. No. 1; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at 988.
29. The following Web site lists organizations with scent-free policies: Fragranced Policies Information Network.
30.See e.g. McNeill v. Ontario (Ministry of Solicitor General & Correctional Services), [1998] O.J. No. 1188; R. v. Ample Annie’s Itty Bitty Roadhouse, [2001] O.J. No. 5968; Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A. No. 62.
31.Dewdney v. Bluebird Cabs Ltd., [2003] B.C.H.R.T.D. No. 5.
32.Fitton et al. v. Air Georgian Ltd., Decision No. 528-AT-A-2004 (C.T.A.).
33. See e.g. Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A. No. 62; Re. Hamilton-Wentworth (Regional Municipality) and C.U.P.E., Local 167 (1994), 44 L.A.C. (4th) 257.
34.Interview of Nancy Bradshaw by Cara Wilkie and Margaret E. Sears (September 12, 2006).
35.This issue was argued, though not decided, in Brown v. Strata Plan LMS 952, [2005] B.C.H.R.T.D. No. 137.
36.Ontario (Ministry of Correctional Services) and O.P.S.E.U. (Hyland) (Re), 115 L.A.C. (4th) 289 (Ont. Cr. G. S. B.).
37.Maljkovich v. Canada,[2005] F.C.J. No. 1679.
38.Feaver v. Davidson, [2003] O.R.H.T.D. No. 103.
39.ADA § 12111(10).
40.See e.g. Lalla v. Consol. Edison Co. of N.Y., Inc., 2001 U.S. Dist. LEXIS 5312.
41.Jones v. Ind. Civ. Rights Comm'n,2006 U.S. Dist. LEXIS 23954.
42.Ibid. quoting Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 544-45 (7th Cir. 1995).
43.Whillock v. Delta Air Lines(1995), 926 F. Supp. 1555.
44.Roth v. Johnson (2006), EEOC DOC 01A55898.
45.Keck v. New York State Office of Alcoholism & Substance Abuse Servs.(1998), 10 F. Supp. 2d 194.
46.Heaser v. Toro Co. (2000), 247 F.3d 826.
47.McCauley v. Winegarden (1995), 60 F.3d 766.
48.Jones v. Ind. Civ. Rights Comm'n, 2006 U.S. Dist. LEXIS 23954 quoting Buckles v. First Data Resources, Inc., 176 F.3d 1098,1101 (8th Cir. 1999).
49.County of Fresno v. Fair Employment & Housing Com. (1991), 226 Cal. App. 3d 1541.
50.Comber v. Prologue, Inc. (2000), 2000 U.S. Dist. LEXIS 16331.
51.Lincoln Realty Management v. Pennsylvania Human Relations Commission (1991), 143 Pa.Cmwlth. 54, 598 A.2d 594.
52.Nanette v. Snow (2004), 343 F. Supp. 2d 465 & Nanette v. Snow, 2005 U.S. App. LEXIS 20320.
53.Mulloy v. Acushnet Co., 2005 U.S. Dist. LEXIS 12778.
54.McAlpin v. National Semiconductor Corp. (1996), 921 F. Supp. 1518. See also Gits v. Minnesota Mining and Manufacturing (2001), not reported in F.Supp.2d, 2001 WL.
55.Bazert v. Louisiana Department of Public Safety and Corrections (2000), 1st C. C.A.
56.Temple v. Gunsalus, 1996 U.S. App. LEXIS 24994.
57.Lewin v. ACT Health & Community Care Service, [2002] ACTDT 2.
58.One device, known as a chromatograph, has been suggested as a potential device for fragrance detection. The specifics of this device, its uses or accuracy have not been examined by the authors.