A Disability which gives the right to a reasonable accommodation
In November 2011, the Commission des droits de la personne et des droits de la jeunesse du Québec (Québec’s human rights commission) stated:
[TRANSLATION] “The definition of the basis of a handicap in the Charter of Human Rights and Freedom retained by the Commission as well as the interpretation of this ground by tribunals in Quebec is sufficiently broad and open for people suffering from environmental sensitivities to invoke this ground.”Reasonable accommodation in the workplace
Even if in August 2012, there had not yet been a decision recognizing environmental sensitivities as a handicap according to the Charter, there is every reason to believe that Quebec tribunals would consider them as such. In fact, in the legislation of most Canadian provinces —including Ontario and British Columbia—as well as in Canadian federal law, environmental sensitivities have clearly been recognized as being a “handicap” in tribunal decisions, in acts and in legal advice provided by human rights commissions.
Considering environmental sensitivities as a disability means a sufferer has the right to request a rea- sonable accommodation from an employer, a landlord or service provider, as long as the accommoda- tion does not cause undue hardship.
The scope of the right to a reasonable accommodation varies depending on the sector at issue (employ- ment, housing, public or private services) and on the circumstances. By virtue of the Charter, a medical certificate is not necessary to request an accommodation. However, if a disagreement exists between the parties, the type of accommodation required will have to be justified by a certificate. Once again, finding a well-informed and sympathetic physician is essential. As already highlighted elsewhere, this is probably the biggest challenge facing people suffering from environmental sensitivities.
In the area of employment, a first measure of reasonable accommodation is when the employer of a person suffering from environmental sensitivities establishes a “fragrance-free working environment” policy.
In Ontario, an arbitral tribunal decision confirmed that a high school in Toronto was required, among other things, to not only adopt a fragrance-free policy applicable to everyone, including students, but also to have the teacher with environmental sensitivities approve all cleaning products used in the building where she worked.
The Public Service Labour Relations Board has already decided that a federal department was required to accommodate a worker with environmental sensitivities by allowing her to work from home and by providing the equipment needed to do so.
Reasonable accommodation in housing
In Quebec, although it is clear by virtue of the Quebec Charter that owners have an obligation to provide reasonable accom- modations to lessees, there is little guidance on the issue in case law. For example, it has not yet been ruled under which circumstances a lessee with environmental sensitivities could request the installation of an air exchanger in an apartment. This is in stark contrast to the situation in Ontario, where a collaborative project between the Environmental Health Cli- nic in Toronto and a tenant rights group has been set up.
That being said, a lessee’s right to the “peaceful enjoyment of the premises”, as stated in the Civil Code of Québec, could serve as grounds for requests made by tenants with sensitivi- ties. For example, if cigarette smoke from other dwellings has detrimental effects on the tenant’s health, an owner could impose a no-smoking clause on other lessees, even during the term of a lease. Furthermore, a tenant who does not have the peaceful enjoyment of a dwelling because of odours or fumes from other dwel- lings, or even from other sources, can request the resiliation of a lease.
Reasonable accommodation from public and private service providers
There are few legal precedents concerning accommodation requests from people suffering from envi- ronmental sensitivities with regards to public services (health services, government buildings) or pri- vate services (from restaurants, movie theatres, airlines, etc.). However, this does not necessarily mean people do not make them or that requests are not granted when they do.
Let us turn to Nova Scotia as an example of a more hospitable world for people suffering with sensitivities. All provincial hospitals, all municipal offices in Halifax and the Halifax Regional School Board have adopted “No-Scent” policies. Even though the objective is to educate rather than enforce norms with disciplinary ac- tion or refusal of services from a hospital in the case of non-compliance, these po- licies demonstrate a social awareness of environmental sensitivities which is still lacking in Quebec. This awareness came about in Nova-Scotia in a dramatic way. At the beginning of the 1990s, more than 300 people working in a new hospital—including a physician—developed incapacitating environmental sensitivities after exposure to an anti-corrosive product in the hospital’s boiler. Since then, an environmental health clinic has opened its doors.
Another example, this time in an educational context in British Columbia, is that of a college student with sensitivities who was granted permission, for several courses, to sit by an open window or in the corridor adjacent to the classroom or to ask another student to take notes or record classes for her. However, the human rights tribunal has justified the requirement that the student be present for courses based on experiential learning.
Regarding services offered by the private sector such as restaurants, movie theatres and taxi companies, the obligation to grant reasonable accommodations also exists, but it is also limited by“undue hardship.” For example, to expect a restaurant to ask all clients with fragrances to leave the premises to accom- modate a client with sensitivities who unexpectedly arrives would no doubt present undue hardship. However, a request made to a restaurant owner several days in advance, asking waiters to take into account the needs of a person affected with environmental sensitivities by not using fragrances, reser- ving a place by a window and providing information on the menu would be much more reasonable.
In short, the obligation to provide reasonable accommodations could, in certain cases, be grounds for recourse. Accommodation requests can also serve as a way to educate public and private service providers on the needs of people with environmental sensitivities and convince them to take certain steps. Reasonable accommodations require above all an open mind and a real commitment from both sides to work together to find an acceptable solution for all.
The right to a workplace free from psychological harassment
Unfortunately, people with environmental sensitivities who invoke the right to a reaso- nable accommodation in their workplace are sometimes subject to hostile gestures or rejec- tion from certain colleagues: grimaces (scowls, frowns, sneers, etc), verbal abuse, antagonistic gestures such as increasing the use of or spilling perfume, laughter and other unkind behaviour when, for example, the sufferer is wearing a mask. It is therefore important to know that in Quebec, by virtue of the Act Respecting Labour Standards, all employees have a right to a workplace free of psychological harassment. The employer has the obligation to prevent psychological harassment. When such gestures are brought to an employer’s attention, reasonable means must be taken to put a stop to them. Furthermore, the Quebec Charter stipulates that no one can be harassed because of a handicap or because of means used to alleviate a handicap.
Despite the fact that the provisions concerning psychological harassment in the Act Respecting Labour Standards are not applicable in federal law, most federal employees nevertheless have policies addressing harassment in the workplace that provide grounds to file a complaint.
People with environmental sensitivities have, like everyone else, the right to have their dignity respected at work!