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Scents and Your Rights at Work
Posted By Claire Gagné On 2010/07/02 @ 2:17 pm In Asthma | No Comments
During renovations, S.C. Johnson and Son gave a choice to its employees, some of whom have asthma and environmental allergies: they could work from home or transfer to a desk elsewhere within the Brantford, Ontario headquarters. The idea was to prevent susceptible staff from being exposed to the dust, paint fumes and other irritants that would be in the air.
The company, makers of well-known household products such as Ziploc, Windex, Shout, Pledge and Raid, is known to be accommodating, especially when it comes to employees’ health. S.C. Johnson and Son has nursing staff available to each of its two manufacturing plants and two sales offices across the country. There is a central medical centre that can refer employees to specialists, and will make recommendations to the employee’s manager and the human resource team on how to best accommodate the person’s needs.
For example, if a worker in a manufacturing plant has a sensitivity to a fragrance, the company might move that person to a different production line. The company cafeteria also has clear signs and menus to protect people with food allergies.
“We are 100 per cent behind our employees at all times,” says Leslie Duncan, a human resources manager with the Canadian division of the company. That level of commitment has earned S.C. Johnson a spot on many “top places to work” lists around the world. Unfortunately, the caring corporate culture is not universal.
Chris Haromy, a respiratory therapist and certified asthma and COPD educator with the Ontario Lung Association, fields many calls from frustrated staffers who are having asthmatic reactions at the office. Often, they are having symptoms from colleagues’ use of scented products.
“They say, “I’ve put the posters up, the company has sent out e-mails and communications about it, and people are still wearing perfume,’” he says. There is such a wide gulf between companies that accommodate and those that won’t, or where fellow employees won’t comply, that it can be hard for the employee with asthma or severe environmental allergies to know what his or her rights are.
The first step for the employee is to talk to his or her union (if applicable) and manager to try to come up with a solution. But if that fails, the good news is, there is recourse.
Allergic Living finds that under human rights legislation in Canada, companies are legally obligated to accommodate people with disabilities, and asthma, allergy, and even sensitivity to fragrance are considered disabilities.
For instance, the Saskatchewan Human Rights Tribunal ruled that there was cause to investigate the complaint of a casino worker for the Saskatchewan Indian Gaming Authority who had lost her job because she wasn’t able to work in a smoke-filled environment.
The question of what management is required to do to accommodate staff with respiratory complaints, however, will depend on the size and resources of the company, as well as the magnitude of the change the employee is seeking.
Risks and Rights
There are many risks in the workplace for employees with asthma or environmental allergies. The office may have old, dusty carpets, mold or off-gassing from furniture. Scented products, either on other employees or from cleaning supplies and air fresheners, can set off asthma attacks in those with the disease. “Asthma in the workplace is pretty common,” says Dr. Jeremy Beach, an associate professor in the Department of Medicine at the University of Alberta who has researched occupational asthma.
“You can get asthma because you’ve had it since you were a kid and you’re exposed to something at work that triggers an attack. Or you can get asthma that first develops because of an allergy to something at work. The classic examples would be people doing jobs like auto body repair work or working in a laboratory with animals.”
Whatever the cause, Canada’s broad definition of disability will apply. “Basically, the question is, ‘do you have something that could possibly be considered a disability?’” says Cara Wilkie, a Toronto-based lawyer at Bakerlaw, a firm that specializes in disability law and human rights. If the answer is ‘yes,’ then a human rights commission will “stop looking at whether you have a disability, and just look at what you might need as a result,” she says.
If an employee feels his or her asthma or allergy is not being accommodated at work, that employee has the right to file a complaint with the province’s human rights commission. (In the case of an employee of the federal government, a crown corporation or in a federally regulated industry, such as a bank, the complaint would go to the Canadian Human Rights Commission.)
The process varies with each commission, but generally, a lawyer is not needed at the early stages. Most commissions will conduct an initial investigation, or series of interviews, to determine whether the complaint has merit.
Because the human rights process is fairly slow, there is often an attempt to come up with a quick resolution with the company, says Wilkie. This is particularly true when the person is still employed by the firm.
In British Columbia, with Ontario soon to follow suit, a complainant has direct access to a tribunal – there is no initial investigation stage. Wilkie says it’s advisable to have a lawyer for the tribunal process, and Ontario will be making resources available for legal counsel.
Still, “there’s a difference between what you ideally might want and practically what you may get” through the human rights commission, Wilkie warns. That’s because it’s a question of balance between what the employee is seeking, and what is reasonable to expect the employer to do.
Beach at the University of Alberta gives the example of a small auto body repair shop. If there are only a handful of employees, and one begins to have asthma attacks from the paint, it might be considered undue hardship for the owner to find that employee another job within the company. However, if it’s a national chain of auto body repair shops, and the same thing occurs, the company may be expected to find an alternative position for the auto body spray person.
One accommodation that is fairly inexpensive to implement, and which many companies, hospitals and universities have put into practice, is the creation of a scent-free environment. This usually involves either a requirement or a recommendation that employees and visitors not wear perfumes, avoid using scented shampoos and lotions and refrain from bringing flowers, potpourri or other scented items to work. Also, the company may implement a change in the cleaning supplies that they use.
An early leader in the scent-free approach was The Royal College of Physicians and Surgeons of Canada. In 1999, its Ottawa offices instituted a scent-free guideline in response to comments from various employees who said fragrances were giving them asthma attacks or migraine headaches. The guideline, called “No Scents is Good Sense,” is posted widely throughout the building, a former monastery overlooking the Rideau Canal, and also reissued by e-mail regularly as a reminder. The guideline is mentioned to every potential new employee in job interviews, and raised during orientation.
During renovations or maintenance that create strong odours, the college will allow employees to relocate within the building or work from home. In the human resources office, one employee is allergic to flowers – so all plants have been removed from the area.
Although “No Scents is Good Sense” is only a guideline, rather than a policy, director of human resources Bonnie Seidman says it’s followed well. She says the college decided not to implement an enforceable policy, under which disciplinary action could be taken against employees who don’t obey, after consulting other companies with similar rules. One issue was that the college gets many visitors throughout the year, many of whom come to take exams. Although guests to the college are encouraged in letters not to wear scented products, “we cannot control the public coming in,” Seidman says.
Some organizations, however, do strive to make their buildings scent-free by way of policy. Kingston General Hospital banned scents in July 2005 because, as its website states, “we all have the right to breathe clean air and not to suffer unnecessary health problems that are brought on by chemical fragrances.” Offenders will be asked to wash, or to go home if they don’t comply.
Also, many types of flowers, such as lilacs, lavenders and peonies, are no longer allowed in the hospital. “There are signs that are posted throughout the hospital, and they apply to both visitors and to staff,” says Joanna Noonan, manager of occupational health and safety at the hospital.
Wilkie, who recently co-authored a report for the Canadian Human Rights Commission called “Accommodation of Environmental Sensitivities: The Legal Perspective,” says that having a scent-free policy becomes much more complicated to enforce when the company provides services to the public. “How can you require everybody who is buying their groceries to not use scented products, versus a small office where you only have to require the staff not to do it? The issue of what you would require of a customer is still pretty much undetermined,” she says.
But what about the right of a colleague to wear that bold perfume or strongly scented deodorant within the office? Although respecting an employee’s personal desires is obviously going to be a consideration of the employer, Wilkie says that such individual preferences are not taken into consideration when a human rights commission is deciding what is appropriate accommodation for a disability.
“There is no right to wear perfume,” Wilkie says simply. Her research showed that a Canadian employer can be expected to enforce no-scent rules in the same way that a mandatory dress code would be instituted. For example, the first violation would not lead to termination, but perhaps to a warning, or being written up. The second violation might result in a suspension, with the employee perhaps being fired on the third violation.
The issue is more complex, however, when it becomes a balancing of rights such as a blind person having a service animal to help with mobility, and someone being allergic to that animal. In 2004 the Canadian Transportation Agency found that Air Georgian was right to refuse the boarding of three passengers with guide dogs because the pilot had a severe allergy to dogs. Many factors were considered, including the unavailability of other pilots and the small size of the aircraft.
Next Page: Finding Agreement
In coming up with a resolution to a complaint, a human rights commission will try to balance the interests of the employee and the company. For a better chance of success, employees should request remedies that are reasonable and inexpensive. “There’s a difference between asking them to steam clean all the carpets, versus asking a company to make drastic changes,” says Wilkie. For example, a complete overhaul of the building’s ventilation system is likely beyond a company’s responsibility. “There will be consideration of the cost that’s involved, and the impact it would have on the organization.”
However, there is evidence that an organization will at least have to explore all options to alleviate the employee’s job-related health difficulties, and to prove that any particular accommodation would present “undue hardship” for the company. In the case of the asthmatic cashier versus the Saskatchewan Indian Gaming Authority, the human rights commission initially rejected the woman’s claim that she was discriminated against because she couldn’t work in a smoke-filled environment.
However, the Saskatchewan Human Rights Tribunal later ruled that the commission had been too quick to dismiss the idea of transferring the woman to a job at head office, or of creating a smoke-free area of the casino. It was up to the gaming authority to provide a cost-benefit analysis of these possible solutions before a decision could be made.
In Canada, every province also has an employment standards act, or an equivalent, with a provision that the workplace must be safe. This would refer to things like having safety straps if you’re high up on a building doing external work, or “anything that requires general safety measures when you’re doing an unsafe job,” says Wilkie. A few individuals have tried to use such provisions to argue that the environment of the workplace, coupled with their allergies or asthma, has led to unsafe working conditions. But few such cases have succeeded because there isn’t objective standard of where the line should be drawn, and Wilkie notes that what is an acceptable environment for one individual may not be for the next.
Taking a company to a human rights commission should, of course, only come after more conciliatory approaches have failed. As Haromy at the Ontario Lung Association stresses, education is sometimes the most important strategy. “A lot of people who aren’t affected by something, whether it’s perfume or nut allergies, are often not able to understand it,” he says. The better able an employee is to communicate to his manager, to human resources and to colleagues the severity of his asthma or allergy, and how simple steps such as not wearing perfume or replacing carpets can make a huge difference to his health, the higher the chance that others will comply.
But until the day all companies are as accommodating as S.C. Johnson and Son or The Royal College of Physicians and Surgeons, Canadians with asthma and allergies can at least take comfort in knowing our human rights legislation is there to protect them.
First published in Allergic Living magazine.
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