Employers must accommodate employees with disabilities to the point of undue hardship under the Ontario Human Rights Code. The accommodation of scent sensitivities arose in a recent decision of the Ontario Human Rights Tribunal (the “Tribunal”). It raises questions as to what is considered undue hardship when accommodating an employee with a sensitivity to scents.
In Kovios v. Inteleservice Canada Inc., the employer operated a call centre in a large open space work environment with rows of cubicles. At one time, 200 people would be in the workplace. During her job interview, the applicant advised the employer that she had a sensitivity to scents. She was informed that the employer had a fragrance-free policy but due to the large number of employees, the policy might not always be fully complied with. The applicant commenced her job training but after the third day she didn’t return to the workplace.
She contended that the employer failed to accommodate her disability by not enforcing its fragrance-free policy. The Tribunal did not find that the employer breached its policy. Furthermore it noted that the employer had made efforts to accommodate the applicant. For instance, a fan was brought into the training room to air out the smells and when this was unsuccessful, the employer arranged for her to stop the training program and to shadow an employee instead.
The particular challenge with this employee is that she alleged to have a negative reaction to scents that are undetectable by other people.
Ultimately, the Tribunal found that the applicant failed to discharge her duty in the accommodation process and dismissed the application. She failed to explain to the employer what accommodation she was seeking besides the enforcement of the fragrance-free policy. She did not properly identify her accommodation needs and she did not clearly explain to the employer why their efforts were inadequate.
It goes without saying that accommodating an employee with a hypersensitivity to scents as alleged in this case would be very difficult. Unfortunately this decision gives little guidance to employers who are in such a situation.
Accommodating an employee with a scent sensitivity could be a tricky task. Creating and enforcing a scent-free or fragrance-free policy is one way to regulate the use of scents in the workplace. In this case, the employer’s policy requested that employees refrain from using scented products, especially strongly scented products. The employer had in fact successfully accommodated another employee with a scent sensitivity. That employee was allowed to choose where to sit to ensure that the exposure to any scents was minimal and if another employee was wearing a strong scent around the sensitive employee, they would be asked to wash it off. This illustrates that there is potential for creative and simple solutions to the accommodation needs of employees with scent sensitivities.
This blog was originally posted by Stringer LLP on First Reference Talks, 12 October 2012.
