Employer insensitive to hypersensitivity

Employee awarded $18,000 after new manager ended work-from-home agreement
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 06/21/2011

A government employer must pay $18,000 for its reluctance to allow an employee who got sick from the office environment to work from home, the Canada Public Service Labour Relations Board has ruled.

Nathalie Cyr was a project manager at Human Resources and Skills Development Canada (HRSDC) who had been working in the public service since 1992. In February 2004, she started working at Service Canada’s offices at Place du Portage, a building in Gatineau, Que.

Cyr had never experienced any health problems before but, after one month in the new building, she began feeling tired on a regular basis. She also began suffering from headaches and sinus pain shortly after arriving at work each day. When she went home, the symptoms would gradually disappear, only to return at work the next day.

On June 1, 2004, Cyr reached an agreement with Service Canada where she could work from home three days of the week. However, the director didn’t like teleworking and, in 2005, decided all employees working from home should return to the office. The director agreed to let Cyr still work from home but wanted her in the office three days each week instead of two.

The extra day took its toll on Cyr and her symptoms worsened. Eventually, on April 28, 2006, she obtained a medical certificate stating she suffered from environmental hypersensitivity caused by the workplace. The doctor recommended Cyr work from home for the foreseeable future. So Service Canada approved her working from home full-time.

In September 2006, Cyr began reporting to a new supervisor, Jo-Ann Dumont, who also didn’t like teleworking, especially for senior-level employees such as Cyr. She asked for more information about Cyr’s condition, which made Cyr anxious and caused tension between them.

In November 2006, Dumont informed Cyr that Service Canada would charge her one hour of sick leave for her weekly doctor visits, which had not been done before. She also reorganized the division, giving Cyr new responsibilities that required her to work at the office. While she was allowed to work in another building in the complex, the same air circulated throughout the entire complex.

Cyr said the request to report to work at the office contravened her doctor’s recommendation. She obtained another medical certificate on Dec. 20, 2006, that specified she was sensitive to air pollutants in buildings with mechanical ventilation systems, even if the air quality met accepted standards. Dumont noted she had seen Cyr in other buildings with the same systems and asked for another medical evaluation to determine when she could return to work in such an office. Cyr obtained a more detailed certificate — which cost her $300 — and said she would not return to work in any buildings with mechanical ventilation systems.

Cyr also requested equipment necessary for her to work at home. She was eventually given everything except a computer and keyboard tray.

The board accepted the evidence Cyr suffered from environmental hypersensitivity and that constituted a disability under the Canadian Human Rights Act and the collective agreement. And, initially, Service Canada accommodated Cyr, even though it didn’t have a medical certificate.

However, when Dumont took over as supervisor, the attitude towards Cyr changed, said the board. Though Dumont had full knowledge of the circumstances, she questioned the accommodations, which was a failure of the employer’s duty to make “sustained and prolonged efforts to accommodate.”

When Cyr provided a medical certificate, Dumont asked for another more detailed certificate, which cost Cyr money. Rather than working with Cyr to accommodate her disability, Service Canada continued to question her status and put more of a burden on her, said the board.

Service Canada’s tardiness in providing Cyr with a proper computer at home was a failure to accommodate through negligence, found the board. The fact Cyr had all the equipment she needed at the office but not at home was discrimination, it said.

Service Canada was ordered to pay Cyr $10,000 for violating its duty to accommodate and $8,000 for the pain and suffering she experienced because of that failure. The employer also had to reimburse Cyr the $300 for the detailed medical certificate.

For more information see:

Cyr c. Canada (Conseil du Trésor – ministère des Ressources humaines & du Développement des compétences), 2011 CarswellNat 1091 (Can. Pub. Services Lab. Rel. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit employmentlawtoday.com.

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