Engineering technologist suffered from environmental sensitivities
The Federal Public Sector Labour Relations and Employment Board has dismissed multiple grievances and a Canada Labour Code (CLC) complaint filed by a federal government worker who alleged discrimination due to environmental sensitivities.
“This is an exceptional case where the employer was going to extraordinary lengths to try to find some way of accommodating this person,” says Charles Millar, a senior associate lawyer at Achkar Law in Toronto.
The worker was a civilian employee with the Department of National Defence (DND) in Ottawa. She was an engineering technologist working as a designer/illustrator in DND’s land engineering support centre (LESC). Her work involved hands-on physical analysis of military equipment, which could only be done onsite.
The worker suffered from environmental sensitivities to scented products and chemical irritants, triggered by chemical exposure from a crop-dusting plane in the 1980s. She disclosed her condition to DND shortly after she began her employment in 2011. Her environmental sensitivity was unpredictable and she often wasn’t able to identify or predict what triggered her symptoms.
The worker claimed ongoing adverse reactions in the workplace, despite DND’s efforts to implement a scent-free guideline for all employees in the LESC. DND took additional measures to accommodate her, including relocating her workstation to an area with a door and a window that she could open. However, the worker continued to experience symptoms in the workplace, including physical reactions, emotional distress, and time away from work.
Disability presented challenges
The worker frequently emailed her supervisor complaining about reactions from scents and chemicals in the workplace, and each time her supervisor responded. In one case, the worker complained about an unscented body wash that another employee was using in the bathroom shower, but that employee needed it for their eczema. DND provided the worker with a soap that she could use safely, but it felt it couldn’t do anything about products that were labelled as unscented, particularly with the uncertainty of what set off the worker’s symptoms.
The worker also searched the washroom for body wash and hand sanitizer that could trigger her symptoms and complained that the scent-free guideline wasn’t effective because it was voluntary, suggesting that anyone who didn’t follow it should be disciplined.
“This was a worker who complained every single time and who went looking for trouble, yet DND responded to every email and was sensitive,” says Millar. “The board acknowledged that not every step [DND] took resulted in a perfect solution, but what was beneficial to the employer was that it continued taking steps to try to accommodate her further.”
The worker filed her first grievance in 2013 relating to DND’s response to her reactions to chemicals and scented products in the workplace. The board found that, while accommodation efforts weren’t perfect, they were reasonable under the circumstances, including the limitation in detecting scents. The board noted that management consistently responded to the worker's concerns and took steps to minimize her exposure.
A second grievance filed in 2014 focused on the presence of visitors wearing scented products at the workplace. The board found that [DND’s] measures to control visitors' use of scented products – informing visitors in advance of the scent-free guidelines, sending the worker home if a strong scent was detected, and on one occasion sending a visitor home to remove a scent they were wearing - were reasonable. The board acknowledged the challenges in managing such situations, as DND couldn’t control what non-employees were doing or guarantee what cleaning products would be used by the cleaning services contractors, but it concluded that DND did its best to mitigate the risks.
“The employer absolutely did everything it could to try to accommodate what is an extraordinary disability for accommodation,” says Millar. “In fact, if you look at the jurisprudence, there have been many decisions on scent sensitivity and just how difficult it is to accommodate.”
Accommodation recommendations
In 2015, Health Canada investigated the worker’s circumstances at DND’s request. It made several recommendations, including the continued use of a closed office space for the worker, ensuring that there was good air exchange, encouraging a scent-free environment, and using environmentally friendly cleaning products. Health Canada concluded that “DND may not be in a position to provide [the worker] with the safe working conditions/environment required for her to perform her duties in her current job.”
In 2017, DND removed the worker from the workplace due to continued adverse reactions and its determination that it couldn’t completely avoid scents in the workplace. The worker argued that this was constructive dismissal and filed a grievance. The board, however, found that the removal was a reasonable accommodation measure aimed at protecting the worker from further exposure while the employer considered alternative accommodation. The board noted that the worker was the only person who could detect what environmental conditions could cause her reactions, making it nearly impossible for DND to ensure the workplace was free of them.
The worker also filed a CLC complaint, alleging that her removal from the workplace was an act of reprisal for her accommodation requests. In early 2018, DND informed her that she would remain on paid leave pending the final results of a Health Canada fit-to-work evaluation, which determined in July that the worker was fit to carry out her work-related tasks “as long as she is not exposed to triggering agents of her symptoms.”
Under certain circumstances, DND could request a fit-to-work evaluation, according to Millar.
“Accommodation is a two-way street and it's not enough that the worker says she needs accommodation - the employer should do its best to try to accommodate and the worker also has to try to find solutions as well,” he says. “Ordering a fit-to-work test is definitely on the higher end of information requests, but it showed that this employer was trying to work with the worker to see what it could do so she could work there.”
Accommodation options discussed
The parties discussed accommodation options for several months until May 2019, when DND offered the worker a temporary position that met her restrictions. She went off work when the pandemic arrived in March 2020, but DND found her a remote position in March 2021. The worker accepted the position, despite it paying $2,000 less per year and that she wanted to return to her LESC position.
The board acknowledged that the worker established prima facie discrimination, as she clearly had a disability, and her reactions in the workplace and her removal were adverse impacts directly related to her disability. However, the worker’s removal was part of the accommodation process, not a retaliatory action, the board said.
The board noted that the worker’s new remote position wasn’t her "dream job" and involved a pay reduction – another adverse impact - but it was a reasonable accommodation given the difficulty in ensuring the worker wouldn’t be exposed to scents or chemicals.
“Just because something's unfair doesn't mean it's the employer's fault,” says Millar. “DND did everything it reasonably could, but it's not its fault that something unfair happened to the worker, it’s just unfortunate.”
It’s important to note that DND didn’t claim that it reached undue hardship, but rather that it reasonably accommodated the worker, says Millar.
“[DND] said, ‘We agree that you had a disability requiring accommodation and we took every reasonable step we could to accommodate you,’” he says. “And the board agreed that [DND] took all reasonable steps and, as far as it was concerned, the employer executed its duty to accommodate under the Canadian Human Rights Act.”
Reasonable accommodation not perfect
It’s not up to the worker or the worker’s doctor to dictate the accommodation measures, adds Millar.
“The doctor says what the functional limitations are and then the employer tries to make some accommodations to allow the worker to work,” he says. “What employers should do is look at the worker’s limitations, what accommodations are needed, and if it's within the employer’s control to implement them - if it can't, then it's unreasonable to assume that the employer can control something that’s outside of its power.”
The board denied all of the grievances, concluding that DND had fulfilled its duty to accommodate, despite the worker’s ongoing dissatisfaction with the measures implemented. The board also dismissed the CLC complaint, finding that DND’s actions weren’t discriminatory.
“A lot of employees and employers think that once an accommodation has been set, then you have to provide accommodation up to undue hardship, but this case shows that's not quite how the law works,” says Millar. “If an employee has showed that they have an accommodation need or they're facing discrimination in the workplace, the employer has to show that it made reasonable attempts to accommodate.”
“Both parties need to work collaboratively and if the employer comes forward with a pretty reasonable accommodation and the employee refuses it, then the employer has met its duty to accommodate unless the employee can say that accommodation didn't work,” he adds.
