Accommodating scent and dust allergies the right way
A teacher with a severe allergy to dust and scents was sufficiently accommodated by her employer, despite ongoing challenges with exposure, according to a recent decision of the British Columbia Human Rights Tribunal. The school board, the employee and the union worked together to develop an “Exposure Control Plan,” which was effective at reducing the teacher’s symptoms and absences.
Nonetheless, the teacher complained to the tribunal that the employer was violating the Human Rights Code by “not providing a scent-free work environment, not enforcing a scent-free work environment, and subjecting her to psychological harassment.” The tribunal disagreed.
How can a school accommodate a severe allergy to scents and dust?
After the teacher, Heather Andruski, notified the school board that she had this severe allergy, the board worked with the employee and the union to develop a plan. As of February 2013, the Exposure Control Plan stated:
If [Andruski] detects scent, she will inform administration and take the steps necessary to minimize her reaction… If scent is detected in her classroom she will make contact with administration which will assist in determining the appropriate action. If needed she will follow her plan and go home.
The school board took a number of steps to limit Andruski’s exposure to dust and scents, including:
- Replacing the carpet in Andruski’s classroom with linoleum
- Using unscented soap throughout the school
- Making management and staff aware of Andruski’s allergies and providing steps to avoid aggravating those allergies
- Communicating with the union about resolving scent issues as they arose
- Speaking with staff and parents about being scent-free
However, despite these measures, Andruski was absent 23 times in the 2012–13 school year, and continued to complain about co-workers, students and parents attending the school “very scented.”
In October 2013, Andruski took a medical leave and remains on long-term disability, despite being denied workers’ compensation benefits. In her submission to the tribunal, Andruski wrote:
While the efforts of [the employer] to accommodate me are appreciated, they are in no way effective. In order for me to not be sick every day at work (which I am), I require some control over the use of scent in the space in which I have to do my job. Those spaces are again, classroom, computer lab, photocopier room, and library. It is not like I can take medication to ward off some of the effects of scent. The only remedy is avoidance (with the understanding that there will be occasional exposures). [The employer] assumes ‘she apparently expects to be provided with a completely scent-free work environment at a publically accessible workplace.’ I’m not sure why [the employer] would assume such a thing since I have never requested, nor would ever imagine possible, that I would encounter such a possibility. We never had a discussion of this nature.
At the very least, [the employer] could enforce the scent-free policy in my classroom but her attitude is that of ‘I can’t.’ [The employer] maintains that asking a child to change clothes puts the employer in a place of undue hardship. It appears that [the employer] is choosing to protect the rights of staff opting to wear scent in my classroom over my medical need for a scent-free workplace.
A prima facie case of discrimination based on disability, but…
The school board argued that Andruski’s complaint had no reasonable prospect of success.
The tribunal found that Andruski did demonstrate a prima facie case of discrimination:
- She had a disability protected from discrimination (the allergies)
- She suffered an adverse impact in a protected area (inability to work when exposed to scents and dust)
- There appeared to be a connection between the allergies and the adverse effect
However, the tribunal added:
Depending on whether the respondent has fulfilled the obligation to accommodate her disability, there may be a relationship between those factors. That is, if she cannot work because of her disability and that disability cannot be accommodated without undue hardship, she will not be successful with her complaint. (Emphasis added.)
In the end, the tribunal found that the parties had prepared and implemented an evolving accommodation plan and were attempting to work within it. Indeed:
The evidence is that, once the Exposure Control Plan was put in place, Andruski’s attendance improved and the plan appeared to be working reasonably well. … Andruski has not provided evidence that allows me to conclude that the respondents’ accommodation efforts were somehow flawed.
As a result, the tribunal agreed with the school board that Andruski’s complaint had no reasonable prospect of success.
Conclusion: no need for ‘more perfect accommodation’
Organizations can take a number of lessons from this case of an employer doing accommodation right.
- When an issue of accommodation arises, work with everyone affected to understand the issue and, if necessary, develop and implement a reasonable plan that takes into account the effects on all workplace parties.
- Educate management and staff on the issue (taking care to protect confidentiality) and revise the plan as necessary.
- Understand what might qualify as “undue hardship” with regard to a given accommodation.
- Work to provide effective accommodations that work for all workplace parties, but understand that an employee is not entitled to a “perfect” accommodation—or even their preferred accommodation.
- An employee that doesn’t cooperate in the accommodation process may not have the right to any accommodation.
In addition, the tribunal noted that:
the process of reaching an accommodation or working within it once agreed cannot itself constitute a breach of the Code or adverse impact.
In other words, the tribunal felt that the parties already had a good plan in place, but Andruski was seeking a more perfect accommodation. Unfortunately, she was in some ways unwilling to participate in the existing functioning plan. An employer that engages in the accommodation process in good faith is unlikely to be found in violation of the Code.
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