Case of worker with environmental hypersensitivity raises question about where the accommodation bar should be set if the employee can’t come into work
By Jeffrey R. Smith
What happens if an employee is allergic to the workplace?
Environmental hypersensitivity is not all that common, but we seem to be hearing more about it. The condition is not necessarily allergies to something specific, but more a general intolerance for toxins in the air and other aspects of the environment.
This condition was behind a case I came across recently while researching articles for Canadian Employment Law Today. After moving offices, a government worker discovered she had hypersensitivity to the new building.
It wasn’t anything in particular, and the air quality of the building was good, but she was susceptible to the air in buildings with mechanical ventilation systems, which left certain particulates that caused her headaches and sinus pain.
In an attempt to accommodate her hypersensitivity, the employer let her work from home part-time, then eventually full-time. However, management wasn’t a fan of working from home and it was concerned about her not being in the office at all, since she was in a senior position. It tried to get her back in the office but it was determined there was no likely date when she could. Eventually, the employer was ordered to pay her $18,000 in damages for discrimination because of its efforts to get her back in the office.
Employers don’t have to accommodate employees if the accommodation causes them undue hardship and there is a bona fide job requirement involved. In the example above, the employer couldn’t prove undue hardship — and the bar for that is usually set pretty high.
But should it be so high if the employee just can’t work at the workplace?
Working from home is becoming more prevalent, and technology has made it almost seamless. But there are some concerns for employers. Different employees may handle working from home differently and, if an employer is concerned about how productive an employee might be away from the office, shouldn’t it have the right not to allow telecommuting for that worker?
And what about senior managerial employees? Should the employer have the right to set the bar to some extent on who it wants or needs onsite? Is it not reasonable for an employer to require a physical presence in the office for certain positions?
Accommodation may be unfair to the employer if there’s no chance an employee it needs to be on-site is ever going to be able to be there.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.
