Scents and Sensitivity
Much of the spotlight in employment law tends to be dealing with negative workplace behaviours. But we should not lose sight of the seemingly smaller issues that can also be significant to employees and employers. One of these issues is that of scents in the workplace.
Scents in the Workplace
Many people have scent sensitivities. Many scented products find their way into our workplaces which results in those with sensitivities experiencing discomfort, allergic reactions and illness. As a result, employers must manage this issue in order to accommodate affected employees.
There have been several instances across Canada, including in Ontario, where Human Rights Tribunals and Labour Boards have dealt with scent sensitivity related complaints by employees. While each of these cases present their own unique fact patterns, useful guidance emerges from them that is of assistance to both employers and employees faced with a scent sensitivity issue:
- Scent sensitivity can be a disability. As such, the employer has a duty to accommodate a scent sensitive employee;
- A ‘scent free workplace policy’ is only effective if it is enforced;
- Effective accommodation efforts come from a dialogue between the employee and employer. While the duty to accommodate is that of the employer, the employee has to make suggestions to the employer with respect to the accommodation;
- An employer who makes significant efforts to try to accommodate the scent sensitive employee will be found to have fulfilled the duty to accommodate; and,
- In order to engage the duty to accommodate, the employee needs appropriate medical documentation confirming their disability.
Duty to Accommodate
Many of us are familiar with ‘scent-free workplace policies’, however, we may not have considered scent sensitivity to be a disability. It has been found to be such and for those affected it interferes with their ability to perform work. Once that occurs, the duty to accommodate is triggered. In the employment law context, that means that the employer must take reasonable measures to accommodate the needs of the disabled employee to allow the employee to perform the essential duties of the employment unless accommodation would result in “undue hardship”.
Scent-Free Workplace Policy
It is at this point that the ‘scent-free workplace policy’ comes into play. It is the most effective tool to ensure that an employer is meeting its duty to accommodate. As set out above, this tool is only effective if it is being enforced. The accommodation for the affected employee means eliminating, as best as is reasonably possible, scents in the workplace. This is done through the creation of the policy, employee education and enforcement. Enforcement can include the discipline of non-compliant employees.
Enforcement of the policy may not always be perfect or there might be scents that it cannot completely eliminate. In that case the employer and employee may need to look at further solutions. This could involve moving workspaces, ventilation fixes and other environmental accommodations. In a case like this where the employer has made a significant effort to accommodate but there is still a scent issue, the employee has a duty to engage in a dialogue to try to find a solution. The cases indicate that if the employee simply says ‘this is not good enough’ without suggesting a solution, the employer will likely be found to have discharged its duty to accommodate.
These are but some of the issues that are engaged by scents in the workplace. If you have any questions about your rights and obligations as an employee or employer, contact the Employment Law Lawyers at Merovitz Potechin LLP.
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