THE EMPLOYERS' EDGE
Do employers have a duty to accommodate employees with scent sensitivity?
Scent sensitivity is becoming a growing concern for employers. Employees with scent sensitivity may experience headaches, dizziness, loss of appetite and difficulty concentrating, creating circumstances where their productivity is affected, or they cannot work at the employer’s premises at all. Many employers are not sure whether and how they are expected to accommodate an employee with scent sensitivity. To date, the Ontario Human Rights Tribunal (the “Tribunal”) has not explicitly found scent sensitivity to be a disability (although labour arbitrators have). However, in a recent decision the Tribunal provided some guidance to employers and employees with respect to the expectations it has of each in circumstances involving scent sensitivity in the workplace, and in the process of accommodation in general.
Susan Kovios was hired by Inteleservices Canada Inc. (“Inteleservices”) to work at a call centre. During the interview process Ms. Kovios advised Inteleservices that she had scent sensitivity. Inteleservices assured Ms. Kovios that it had a fragrance-free workplace policy, but warned that with over 200 people working at the call centre, it could not guarantee that Ms. Kovios would not be exposed to scents she may be sensitive to.
During her first three days of training Ms. Kovios experienced a number of symptoms leading her to believe that she had been exposed to scents she was sensitive to. Not only was Ms. Kovios sensitive to obvious scents, but she was also “hypersensitive” to scents that others around her could not detect, although she did not advise Inteleservices of that fact. Inteleservices attempted to accommodate Ms. Kovios by speaking to the employees Ms. Kovios identified as wearing scents, providing her with a fan to circulate the air around her, and moving her out of the training room. By the third day Ms. Kovios resigned as she was not physically able to continue working at the call centre because of the physical symptoms she was experiencing. She filed an application with the Tribunal, alleging that her scent sensitivity is a disability that was not accommodated by Inteleservices to the point of undue hardship as Inteleservices did not enforce its fragrance-free policy.
In Kovios v. Inteleservices Canada Inc. (2012 HRTO 1570 (CanLII)) the Tribunal began its decision by stating that it could not conclude that Ms. Kovios in fact had scent sensitivity. None of the medical evidence provided by Ms. Kovios was based on independent medical tests. However, for the purposes of the application before it Inteleservices was willing to accept that Ms. Kovios had scent sensitivity and that it amounted to a disability under the Ontario Human Rights Code (the “Code”).
The Tribunal reiterated that the duty to accommodate under the Code requires both the employer and the employee to cooperate in the search for solutions that will allow the employee to work without causing undue hardship on the employer. An employee has a responsibility to advise that he or she requires accommodation and provide sufficient information to the employer to allow it to identify and provide appropriate solutions.
Based on the facts in this case, the Tribunal found that Ms. Kovios did not experience discrimination at work. Although she alleged that the discrimination occurred when Inteleservices did not enforce its fragrance-free workplace policy, she did not advise the employer that what she required was an environment free of noticeable scents and scents that were undetectable by others. As Ms. Kovios did not request accommodation for her hypersensitivity, and in fact did not inform the employer of that condition, the issue of whether Inteleservices accommodated her to the point of undue hardship did not even arise. Ms. Kovios had a positive obligation to accurately identify her disability, describe the accommodation she required and clearly explain that the solutions the employer had been attempting to implement were not adequate. As a result, the Tribunal found that Ms. Kovios did not experience discrimination at the hands of Inteleservices.
Clearly, employees have a duty to provide sufficient information to the employer regarding the severity of their disabilities and information on the type of accommodation they require. Unlawful discrimination does not occur where employers are unaware of an employee’s disability or the need for accommodation.
Nonetheless, employers would be well advised to develop a fragrance-free workplace policy, educate employees on the policy and enforce it consistently. When an employee raises concerns of scents in the workplace, employers should address the problem by requesting additional information with respect to the employee’s restrictions (including medical documentation) and discussing with the employee what accommodation the employee is requesting.
The lawyers at Crawford Chondon & Partners LLP have experience in drafting fragrance-free workplace policies and can assist with implementing the policies to ensure that employees with scent sensitivities are accommodated properly.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.