Many employees have sensitivities to fragrances found in the workplace. This can lead to headaches, nausea and other symptoms that can hinder an employee’s ability to remain on the job. In this case study, Mary Lou Brady looks at a case involving scent sensitivity and gives tips to employers on preparing your workplace and working with the employees affected. Kovios v. Inteleservices Canada Inc., 2012 HRTO 1570 (CanLII)
Ms. Kovios applied for a call centre position at Inteleservices Canada Inc. (the “Company”). Like most call centres, the Company operates in a large open space with rows of cubicles. Approximately 200 employees work in that space at any given time.
Ms. Kovios has a scent and fragrance sensitivity1, which she disclosed to the Company during her interview and asked if this would be a problem. She was told that the Company has a fragrance-free policy; however, with such a large workforce and high staff turnover, there might not be full compliance with the policy at all times.
A few days later, Ms. Kovios attended a 3-day training session in a group of 9 trainees. Despite the fragrance-free policy:
- On Day 1, Ms. Kovios noticed that another trainee was wearing perfume, which caused her to develop a migraine. She reported this to her manager at the end of the day.
- On Day 2, Ms. Kovios noticed that the same trainee was again wearing perfume. She reported this to her manager at the break, stating that she may need to leave since she was not feeling well. In response, the manager redirected a fan in the training room towards Ms. Kovios and asked if the fan helped. Ms. Kovios testified that the fan actually made the situation worse because the scented air was now blowing in her face; however, said nothing further to the manager as she felt that the manager did not “get it.”
- On Day 3, the training session was moved to a larger room with better ventilation to accommodate Ms. Kovios. Ms. Kovios nevertheless again smelled perfume and, after asking the trainee sitting next to her about whether she also smelled perfume, the other trainee admitted to wearing perfume and moved to a different seat. Ms. Kovios complained again to her manager, saying that she could not continue in the environment because of that strong smell.
In response, the manager suggested that Ms. Kovios complete her training by job-shadowing an employee in the call centre2 for the rest of the day. Ms. Kovios did so for approximately 10 minutes, at which point she left the workplace, claiming that the call centre worker to whom she was assigned was wearing cologne. She felt nauseous, light-headed, unable to focus, and on the verge of a panic attack.
Ms. Kovios made an application to the Human Rights Tribunal of Ontario (“HRTO”), alleging discrimination by the Company and a failure to accommodate her disability by not enforcing its fragrance-free policy.3
Finding in favour of the Company that there was no violation of Ontario’s Human Rights Code, the HRTO noted the following:
- The duty to accommodate requires both the employer and the employee to cooperate in the search for solutions that will allow the employee to perform the essential duties of employment without causing undue hardship for the employer. The employee must identify that she requires accommodation and provide sufficient information to the employer to allow the employer to develop appropriate solutions.
- After the situation was clearly brought to the manager’s attention, reasonable efforts were made by the Company to solve the problem. While Ms. Kovios found the solutions to be inadequate, she failed to tell the Company. Rather, she said she had to leave because she could not work in the call centre.
- Ms. Kovios did not explain what accommodation she was seeking, apart from enforcement of the fragrance-free policy. She had a positive obligation to accurately identify to the Company what her accommodations needs were and to clearly explain why the solutions that had been attempted were not adequate. Ms. Kovios failed to do so.
Lessons for Employers
- Be prepared. An increasing number of people are developing reactions to scents. Allergic and asthmatic patients report that certain odours, even in the smallest amounts, can trigger an attack. There are other people with “multiple chemical sensitivity” who are affected by scents. Reactions may impede a person’s ability to work, depending upon severity.
- Scent sensitivity is a human rights issue. While the OHRT did not rule on whether Ms. Kovios had a disability that triggered the duty to accommodate, the OHRT appears to view scent sensitivities as either triggering symptoms of existing disabilities or a disability in their own sense.
- Consider how to pro-actively avoid/reduce the likelihood of a human rights complaint. While the Company was ultimately victorious in its defence, undoubtedly it incurred an incredible amount of legal fees, time and other resources to get there. For example:
- Develop a fragrance-free policy. A sample scent sensitive workplace policy can be found in the Scent-Free Policy for the Workplace tips offered by the Canadian Centre for Occupational Health and Safety.
- Communicate your policy to employees and visitors. Consider using posters/signs in reception, office and washroom areas, website messages, orientation brochures and general information awareness sessions.
- Educate employees on the importance of adhering to your policy. Reinforce the message that your policy exists to address medical concerns – not merely because of a dislike for certain scents.
- Reasonably enforce your policy.
- If an employee complains about scent sensitivity, take it seriously. Be prepared to work with the employee to find an individualized solution that meets everyone’s needs, without causing undue hardship for your business. Consider requesting medical confirmation.
- That said, accommodation is a shared obligation. The employee needs to make his/her scent sensitivities clearly known. Unless sufficient information is provided by the employee about the scent sensitivity and required accommodation (including information about accommodations that have/have not worked and why), the employee may not have met its obligation in the accommodation process.
1 Of interest is the fact that Ms. Kovios claims to have scent “hypersensitivity” – affected by scents not detectable to others. Symptoms reported range from a tickle in her throat and/or a mild cough to severe bronchitis and headaches. Ms. Kovios further testified that, in order to be able to function in a workplace, it may need to be completely fragrance-free, including fragrances that are detectable to only her.
2 The manager testified that she could not smell any perfume or other scents in the large call centre area and, in particular, made sure that there was no obvious scent in the area near the chosen call centre employee.
3 Inteleservices’ fragrance-free policy is based on voluntary compliance. It is intended to restrict the use of noticeably scented products in the workplace – not the use of all scented products. Inteleservices has a history of developing individualized accommodation for employees with scent sensitivities, including such things as: (a) allowing the affected employee to go home with pay when a co-worker wears scents; (b) requiring such co-workers to wash off the scents and, if not possible, sending them home without pay; and (c) allowing the affected employee to work in any area where exposure to scents is minimized.