Imagine this: a customer enters your office or store and very quickly suffers an attack of some sort, causing her to break out in hives and have difficulty breathing. Employees remove her from the store, but she’s in such a state that she has to go to the hospital. You later discover that the customer suffers from environmental sensitivities, and unfortunately she had her first major attack at your workplace. Oh, and she claims she can no longer work because of the episode, so she’s suing you for damages and lost wages.
I admit, it’s a little far-fetched, but people do sue for injuries they incur at workplaces, and business-owners must be aware of the risks their premises present to both employees and the general public.
All workplaces harbour dangers. Whether it’s a manufacturing plant or an office, employees can suffer slips and falls, musculoskeletal and repetitive strain injuries, or even injuries from workplace violence. These are unfortunately common enough, but often we can see and understand their causes and consequently make plans to discourage or prevent them from happening. (Obviously not in all cases, particularly with violent behaviour.) However, what about risks that are more insidious, invisible and pervasive—dangers that exist all around, but which most people ignore or never even notice? Environmental and chemical sensitivities fall into this group, and sufferers experience them much worse than the average allergic customer walking through a department store cosmetics department.
In a 2007 Canadian Human Rights Commission report, Cara Wilkie and David Baker write, “Environmental sensitivities are a group of poorly understood medical conditions that cause people to react adversely to environmental triggers.” Further, “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.”
You can see from this non-exhaustive list how difficult it might be to avoid the factors that cause environmental sensitivity reactions. What building or workplace doesn’t include all or most of these agents, whether as an integral part of the inside environment or brought in from outside? And worse, some of these factors arise from the construction of the building itself.
No doubt in the past decade you’ve heard about fragrance bans in public buildings and low volatile organic compound (VOC) paints, but these are just the most apparent dangers. It’s pretty easy to tell when a person’s perfume or cologne causes discomfort, or that paint smell, but what about an electromagnetic field? And maybe employers can rid their workplaces of fragrances and minimize VOCs, but computers, printers and cellphones?
The key is that recent case law in Canada has established environmental sensitivities as a veritable disability, and as such, sufferers are protected by the Canadian Human Rights Act or provincial/territorial human rights legislation. That is, employers must accommodate sufferers to the point of undue hardship.
You might find that worrisome, but as with any prohibited ground of discrimination, there is a procedure employers can follow to achieve the appropriate balance of accommodation.
The first step is simply recognizing that a problem exists and consequently acknowledging that the condition might require accommodation. Once the employer does this, it’s imperative to get an expert opinion on the matter—at the very least from a physician, but probably also from a specialist in environmental sensitivities. These opinions will help you understand the nature of the condition and what further steps you might have to take to accommodate it.
There are also a few general steps that all employers can take to address environmental sensitivities before they manifest. These include discouraging or prohibiting fragrances in the workplace, and developing a clear policy on cleaning products that applies to in-house cleaners and cleaning services that work on the premises. It’s equally important to implement an education program for employees and cleaning staff so they understand the rationale behind the measures and comply willingly. When it comes to the building itself, employers might have their hands tied, but in the event of renovations, they can choose to use the least-toxic products available to minimize residual sensitivity triggers, and they can also consider upgrading ventilation systems to improve airflow and remove toxins from the work environment.
Several court cases in Canada have revolved around accommodating environmental sensitivities. From these cases, it’s clear that the courts take environmental sensitivities very seriously, and will push employers to do everything they can to accommodate sufferers. Courts have ordered employers to install air cleaners and filters near affected employees; to allow sufferers to use private washrooms; to change an employee’s work hours so as to limit contact with others; to reassign the sufferer to another job that involves minimal contact with others; to move employees to different floors of the workplace; and more besides.
At the same time, courts have not invariably sided with employees. Instead they appear to have taken a balanced approach (as they should)—making sure that diagnoses of environmental and chemical sensitivities are reasonably clear and relevant and that employers and their employees cooperate on whatever solutions they come up with. That means employees must prove their conditions relate to their work, and they must accept reasonable accommodations offered by their employers. Employers can breathe a sigh of relief that they won’t face unreasonable demands from employees about a poorly defined range of conditions.
For a closer look at the complex issue of environmental and chemical sensitivities, read “The medical and legal perspective on environmental sensitivities” on HRinfodesk.
Have you encountered employees who suffer from environmental sensitivities? Has your workplace taken steps to minimize the dangers associated with the condition?
First Reference Human Resources and Compliance Assistant Editor
Latest posts by Adam Gorley (see all)
- Announcing the 2021 Virtual Ontario Employment Law Conference - April 15, 2021
- Legal recreational marijuana: how can you address the workplace risks? - October 15, 2018
- Jeffrey Sherman to present at GTA Accountants Network | Early-bird rates, CPD hours - September 28, 2018