The issue of employees with environmental sensitivities often arises for employers. Most commonly, employees complain about sensitivities to strong scents such as perfume. Human rights laws in many provinces accept that environmental sensitivities may be disabilities, to which the duty to accommodate to the point of undue hardship may apply. This was recently confirmed by the British Columbia Human Rights Tribunal in McDaniel and McDaniel v. Strata Plan LMS 1657 (No. 2), when it considered a case where the disability was a sensitivity to second hand smoke.
Where there’s smoke….
Melanie and Matthew McDaniel are non-smokers. They purchased a condo in March 2008. Shortly after moving into their condo, they noticed that second hand cigarette smoke would enter their condo through the windows when other residents smoked on their nearby patios and decks. The McDaniels wrote to the Strata to inquire as to what could be done about the second hand smoke. The Strata stated that smoking was permitted on balconies, and advised the McDaniels to use an air conditioner. The McDaniels attempted to resolve their problem in various other ways.
While doing so, the McDaniels fastidiously kept a log to document the frequency of the smoke problem. They continued to complain of smoke infiltration until they ultimately vacated their condo due to unrelated foreclosure. Throughout the course of their complaints to the Strata (and the Property Management company operating on behalf of the Strata), the McDaniels identified that their concerns regarding second hand smoke arose from health conditions – one a sensitivity to second hand smoke. But the Strata did not request further medical information concerning these alleged health conditions.
Ultimately, the McDaniels filed a human rights complaint alleging discrimination in the area of accommodation, service or facility on the basis of physical disability. They sought compensation for injury to dignity, hurt feelings and self-respect, compensation for their expenses, and an order compelling the Strata to enact a Non-Smoking Bylaw.
Entitlement to Limited Damages
The Strata conceded liability in this case, so the question before the Tribunal was one of damages only. The Tribunal awarded approximately $8,000 in compensation, but declined to order the Strata to enact a Non-Smoking Bylaw as requested. In making their award, the Tribunal commented as follows:
“I accept the McDaniels were physically and psychologically vulnerable. Knowing this, the Respondent failed to seek or inquire into more fulsome information with respect to the extent of their physical vulnerabilities and responded with what can best be termed a patronizing or benign neglect, for a period of almost three years.”
Consequences for Employers
The Canadian Human Rights Commission published a policy in 2007 in relation to environmental sensitivities. It accepts that “environmental sensitivity” is a disability, and individuals who have this condition are entitled to human rights protection. To date, however, there are very few cases that have dealt with complaints of discrimination on the basis of physical disability, where the disability in question is an environmental sensitivity. As liability was conceded in the McDaniels case, it provides little guidance as to the scope of an employer’s responsibilities when dealing with complaints of this nature.
Nevertheless, Canadian employers may wish to consider implementing an environmental sensitivities or scent free policy in their workplace, especially in circumstances where an employee or employees have identified environmental sensitivities and/or have requested accommodation in this regard.
As always, employers should be cautious when drafting and implementing workplace policies, to ensure that they do not run afoul of human rights legislation, while at the same time avoiding the potential for constructive dismissal or other contractual problems:
- Policies should be relevant and should make sense in the specific workplace;
- Employees should be given proper notice of a new policy or a change in an existing policy;
- Policies, and the reasons for them, should be explained to employees;
- Employees should receive a copy of the new or revised policy, and where possible, should execute a written acknowledgment that they reviewed, and understood the policy;
- There should be a process for periodic review and revision in response to feedback from employees, changes in the law or the workplace or circumstances requiring individualization.
Employers should also be alive to circumstances of competing disabilities. For example, consider a circumstance in which one employee requires the assistance of a guide dog and another employee has a severe allergy to pet dander. Employers may find themselves in a situation where they are balancing competing disabilities and their associated accommodations.
At a minimum, the McDaniels case should serve as a reminder that Canadian employers should take complaints of environmental sensitivities seriously, seek legal advice, and consider accommodations in appropriate circumstances.