It’s hard to know when the duty to accommodate ends, but a recent Ontario Human Rights Tribunal decision has clarified some of the requirements, showing that employees have a responsibility to inform employers of their needs.
When Susan Kovios started working for Inteleservices Canada she told them she had a fragrance sensitivity and asked them to enforce their fragrance free policy. Over the first group training sessions Kovios struggled with co-workers wearing perfumes and colognes. Inteleservices offered Kovios a fan, before moving her out of group training to work one on one with another staff member. Kovios consistently complained about staff wearing cologne or perfume, but was frequently the only person to notice it.
The tribunal found that Kovios failed to talk to her employer about the fact that the accommodation was failing, or clarifying what steps could be taken. She told Inteleservices that the job was not working out and she had no choice but to leave. The Tribunal found that Ms. Kovios had an obligation to accurately identify to Inteleservices what her accommodation needs were and to clearly explain why the solutions provided were not adequate.
Overall, both parties took the right approach from the start, Filion Wakely Thorup Angeletti lawyer Casey Dockendorff said, including the fact that the employer did not require immediate medical documentation.
“I think a lot of employers are well-advised to do that in the initial stages. When it’s a general accommodation, it’s not always imperative to ask for documentation,” Dockendorff said. “The applicant’s downfall was that she was insistent on unreasonable accommodations without any medical documentation.”
The tribunal suggested that if Kovios was sensitive to smells no one else could sense, then she should have medical information to back up that assertion. The employer’s case was helped by its ability to call multiple witness to show the steps taken to accommodate, including the fact that a supervisor would send people home if they were wearing perfume or cologne.
“This is one of those day to day situations any HR professional could face. Scent and food allergies are on the increase and it’s the kind of thing employers should be prepared to deal with,” Dockendorff said. “Scent policies are difficult to enforce but as long as an employer is working with the employee that has the sensitivity to try and ensure they’re not exposed, they’re protecting themselves. You can’t have a zero tolerance approach but it needs to be managed on a case by case basis.”
Inteleservices dealt well with the situation by consistently looking for steps to take to accommodate, but the one area that could have back-fired on them was that their policy was written differently in different places. Dockendorff emphasizes that if your policy is written in documents, online and on posters it needs to be consistent, and enforced.
As a final point, Dockendorff would advise contacting the employee to ensure they have in fact resigned.
“When she left and never came back did that really constitute a resignation or did she feel like she had to leave and what obligation did the employer have to get back in touch with her to say we understand you’re having these difficulties we want to work with you, do you want to continue to be employed?”
For Inteleservices, one third of every class doesn’t come back on the third day, so Kovios’ failure to return was not unusual, however, for some companies it would be a cue to reach out to their employee.