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Accommodating Environmental Sensitivities: Best Practices

In many cases in which environmental sensitivities were considered, a number of accommodations were attempted before the matter went to court or administrative grievance mechanisms were used. The experiences of the employers and service providers involved provide examples of best practices when accommodating for sensitivities. In addition, there are numerous secondary documents identifying means of accommodation for persons with environmental sensitivities. In this section, the authors review thematic best practice accommodations as considered in the jurisprudence and briefly assess them in relation to health, safety and cost.

a. Accommodation Principles and Practices

As for any other disability, the accommodation process for persons with environmental sensitivities must be conducted in an individualized, respectful and inclusive manner. Employers and service providers are well-advised to accommodate in a respectful manner that protects the individual’s self-respect, privacy, comfort and autonomy.⁶⁷ Accommodations should be individual in nature and not "one size fits all."⁶⁸ Finally, the goal of accommodations is independence and full participation of the individual.⁶⁹ When evaluating potential accommodations, this is the standard that they ought to be measured against.

b. Fragrance Policies and Chemical Avoidance

Chemical elimination and avoidance is the most significant form of accommodation for environmental sensitivities. Employers and service providers ought to consider the extent to which they can eliminate use of pesticides and use less-toxic or non-toxic cleaning products. Such efforts not only serve to accommodate for environmental sensitivities, but also may minimize injuries and provide a healthier environment. The New Zealand Association of Hairdressers, for example, recognized how pervasive chemicals and resulting injuries were in its industry. As a result, it worked with the Occupational Safety and Health Service of the Department of Labour to develop guidelines on the use, minimization and storage of chemicals used in its industry.⁷⁰

Fragrance policies are one form of chemical avoidance. The jurisprudence makes numerous references to employers and service providers who asked their employees or service recipients to voluntarily refrain from using fragranced products.⁷¹ Many human rights commissions, unions, churches, hospitals and offices have posted signs and implemented policies seeking voluntary compliance.⁷²

Such means of accommodation have no associated costs or risks to health and safety and may in fact have a positive impact upon the health of non-environmentally sensitive individuals. As demonstrated in the extensive workplace injury jurisprudence on this subject, chemical avoidance may in fact prevent injuries and claims of workplace illness, and therefore reduce cost to the employer and health and safety risks in the entire workplace.⁷³

Their success is entirely dependent on the collegiality of others and on any education efforts made to inform them as to the reason for the policy.⁷⁴ While the policy may not fully accommodate for an individual’s sensitivity, in environments where enforcement is nearly impossible, such as where a hospital’s service recipients are concerned, it will serve to reduce the frequency and intensity of chemical exposure.⁷⁵

Wherever possible, a fragrance policy should be developed that incorporates enforcement mechanisms such as those that apply for the breach of any other workplace policy (a dress code, for example). The Canadian Department of Justice’s policy, for example, specifically states that managers may be required to take "disciplinary action for those who do not accommodate their co-workers."⁷⁶

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.

c. Special Equipment and Renovations

Commonly attempted and referenced means of accommodation are the provision of specialized equipment to filter the air or to avoid exposure to triggers. In Treadwell, an employer provided an employee with extended gloves, a hood, and a dust mask for her sensitivities.⁷⁷ In several cases, employers provided their employees with desk filtration systems or HEPA air filters.⁷⁸ In County of Fresno, the employer provided one of its employees with desk filtration systems to eliminate some of the smoke in the work environment.

The provision of small and individual equipment, while perhaps not providing full accommodation for an individual’s disability, is inexpensive and poses no health or safety risks. Larger building or ventilation changes, such as those attempted in West and Temple, will result in a much larger expense to the employer, but are also more likely to provide a holistic accommodation for the individual with sensitivities.⁷⁹ Compared to avoiding or eliminating triggering substances, the provision of specialized equipment is not ideal, as it is much more efficient to avoid the release of toxic substances than to remove them once released.⁸⁰ Employers and service providers are therefore well-advised to focus primarily on avoidance and to accommodate by filtering the air only when avoidance is impossible or insufficient.

d. Transfers, Re-assignments and Retraining

In workplaces or positions that by definition involve great exposure to environmental agents, a transfer to an alternative position or alternative location may be the only feasible option. In IKO Industries, for example, the employee worked in a factory with regular exposure to wood, smoke and dust that made him ill.⁸¹ No reasonable adjustment to the workplace would eliminate these exposures, as they existed because of the nature of the business. Nonetheless, the employer attempted to transfer the individual internally, in the hopes that other factories, doing similar work, would be appropriate.

In Coles, the employer similarly attempted a transfer and provided several months of retraining to an unskilled employee who had developed allergies to cleaners used in the kitchen in which she had worked.⁸²

In some cases, transfers between offices or from one position to another may be sufficient. If, for example, an individual is sensitive to the chemicals used in copying, relocating him or her away from printers, fax machines and photocopiers may be significant as a form of accommodation.⁸³

Transfers and reassignments can certainly be provided as an inexpensive accommodation where retraining is not required. However, where no position with the employer can meet the individual’s need for non-exposure, transfers and reassignments do not serve as an appropriate accommodation and may have significant health and safety implications.⁸⁴ The expense of retraining can be minimal if the individual has most of the skills required, but it can be high where he or she does not have them, as in Coles.

e. Areas of Coverage

Complete accommodation of individuals with environmental sensitivities requires efforts to minimize the use of toxic substances. As the jurisprudence demonstrates, individuals with environmental sensitivities may require proactive action in traditional areas of accommodation such as employment, commercial service provision and housing. However, their accommodation needs may also encompass the actions of commercial neighbours, parks when pesticides are sprayed, construction, and manufacturing of consumer and commercial products. Because chemicals are pervasive, so too must accommodation be if it is to adequately address the needs of individuals with environmental sensitivities.

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.

 

67. See e.g. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 53 & Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703at para. 74.
68. See e.g. British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3.
69. See e.g. Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 69.
70. New Zealand Association of Hairdressers, "Guide to Occupational Safety and Health for the Hairdressing Industry" (February 1997).
71. See e.g. Brewer v. Fraser Milner Casgrain LLP, [2006] A.J. No. 625 (Q.B.); Lewin v. ACT Health & Community Care Service, [2002] ACTDT 2; Hutchinson and Treasury Board (Environment Canada), [1999] C.P.S.S.R.B. No. 39.
72. See e.g. Department of Justice, "Environmental Sensitivities Guidelines," Newsletter, March 31, 2006; Region of Peel, "Scent Sensitivity Program", Wellness at Peel, March 4, 2003; Ottawa Hospital, , "Scent-free Workplace," Administrative Policy and Procedure Manual (June 13, 2001); Ontario Human Rights Commission, "About the Ontario Human Rights Commission,".
73. See e.g. Decision No. 2188/05,[2005] O.W.S.I.A.T.D. No. 2810;   Decision No. 1165 02,[2004] O.W.S.I.A.T.D. No. 2081; Decision No. 1179/98,[1999] O.W.S.I.A.T.D. No. 2561; Decision No. 1271 00, [2001] O.W.S.I.A.T.D. No. 2342.
74. See e.g. Lewin v. ACT Health & Community Care Service, [2002] ACTDT 2.
75. Interview with Nancy Bradshaw by Cara Wilkie and Margaret E. Sears (September 12, 2006).
76. Department of Justice, "Environmental Sensitivities Guidelines," Newsletter, March 31, 2006.
77.Treadwell v. Dow-United Techs. (1997), 970 F. Supp. 974.
78. See e.g. County of Fresno v. Fair Employment & Housing Com. (1991), 226 Cal. App. 3d 1541; Jones v. Ind. Civ. Rights Comm'n, 2006 U.S. Dist. LEXIS 23954; Vickers v. Veterans Admin. (1982), 549 F. Supp. 85.
79. Justice v. West (2000), EEOC DOC 01971002; Temple v. Gunsalus, 1996 U.S. App. LEXIS 24994. See also Hutchinson and Treasury Board (Environment Canada), [1999] C.P.S.S.R.B. No. 39.
80. See the companion report to this by Margaret E. Sears for greater details.
81. IKO Industries Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 773 (Gooch Grievance), [1999] A.G.A.A. No. 63.
82. Coles and Treasury Board (National Defence), [1998] C.P.S.S.R.B. No. 37.
83. See e.g. DeFreitas Saab, T., "Accommodation and Compliance Series: Employees with Multiple Chemical Sensitivity and Environmental Illness," online: Job Accommodation Network.
84. See e.g. IKO Industries Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 773 (Gooch Grievance), [1999] A.G.A.A. No. 63; Paradowski v. Sunshine Valley Animal Hospital Ltd., [2004] B.C.H.R.T.D. No. 442.