Environmental Sensitivity and the Workplace

By Sheilagh Turkington

In May 2007, the Canadian Human Rights Commission published a paper on “The Medical Perspective on Environmental Sensitivities” written by Dr. Margaret Sears. It outlines that as many as 3% of Canadians have been diagnosed with environmental sensitivities. Beyond this, many more Canadians have some degree of sensitivity to “traces of chemical and/or electromagnetic phenomena in the environment.”

Dr. Sears described that there is a broad range of symptoms experienced by people suffering from environmental sensitivities, including neurological impairments, runny eyes, headaches, fatigue, pain, and difficulties breathing or digesting. These conditions may develop gradually as a result of chronic exposure to even low levels of triggers, or suddenly as a result of a more significant exposure.

Once an environmental sensitivity occurs, a heightened sensitivity may develop such that the person may experience symptoms in response to a broader range of triggers or at a more significant degree than previously.

Some people continue to work despite environmental sensitivity. Others may have certain restrictions as a result of their condition. Still others may be rendered disabled from working. Workers faced with such circumstances should be aware of their rights under relevant human rights legislation as well as their possible entitlements to disability benefits.

Human Rights Entitlements and Environmental Sensitivity

In Ontario, workers are protected under the Human Rights Code from discrimination based on disability. The term “disability” is broadly defined under the Code. In its website materials, the Ontario Human Rights Commission describes the definition of disability as including environmental sensitivity.

Adjudicators in employment-related cases have also interpreted disability or handicap broadly enough to include environmental sensitivity and have determined that workers with such conditions may require accommodation by their employers (e.g., Guibord and Treasury Board (Transport Canada) (1995), 28 PSSRB Decision 12 (December 18, 1995); Halton and Ontario Nurses Association (1991), 18 L.A.C. (4th) 428).

Sometimes environmental sensitivities are difficult to diagnose, particularly where the focus of the doctors is on trying to determine the cause of the condition. There may be disagreement among treating practitioners about the actual diagnosis of the condition. What is relevant from a human rights perspective is whether there is legal proof that the person has a disability (Brewer v. Fraser Milner Casgrain, [2006] A.J. No. 625 (Brewer)).

Where accommodation is being requested, it is critical that the worker have medical evidence establishing the worker’s restrictions related to the disability and identifying what aspects of the workplace interfere with those restrictions.

Examples of requests for accommodation made by persons suffering from environmental sensitivities have included placement in environments with the following conditions: minimal exposure to triggering substances, such as perfumes, tobacco smoke; minimal exposure to fabric usage such as carpet, curtains, or upholstered furniture; guaranteed frequent cleaning routines; alteration of existing ventilation processes and opportunity for additional ventilation; restrictions on the type of cleaning products used in the work area; access to respiratory protective equipment; isolation from visitors to the workplace who may not be aware of or be bound by the workplace scented products policy (e.g., Hutchinson v. Canada (Minister of the Environment), [2003] 4 F.C. 580 (Fed. C.A.); Brewer).

Disability Benefits and Environmental Sensitivity

There has been no substantial litigation in Canada for entitlement to long-term disability benefits where disability is based on environmental sensitivity.

The claimant in a long-term disability case must normally prove that she suffers from a disability that prevents her from working the threshold level established under the policy. Controversy in medical communities about a diagnosis like environmental sensitivity or multiple chemical sensitivity can sometimes undermine a claimant’s attempts to prove she is disabled (e.g., MacDonald v. Sunlife Assurance Co. Of Canada, [2005] P.E.I.J. No. 60 (Appeal division)).

However, jurisprudence supports that the onus is on the claimant to prove on a balance of probabilities that she is disabled under the policy. She is not required to have medical consensus on her diagnosis. There may be dispute in the medical community about a particular diagnosis, but the ultimate question is whether there is proof that the person is disabled from working as a result of a medical condition, irrespective of how it is diagnosed.

It should also be noted that the cause of the condition is largely irrelevant to most claims for disability insurance benefits. Benefits under collective agreements may sometimes be contingent on the work-relatedness of the condition. In such cases, the additional burden of establishing causation may be placed on the claimant and her union, as was the case in both Nova Scotia Teachers Union v. Nova Scotia (Minister of Education and Culture (Sewell Grievance), [2001] N.S.L.A.A. No. 20 and Nova Scotia Teachers’ Union v. King’s County District School Board (Van Zoost Grievance), [1996] N.S.L.A.A. No. 6.

Benefits under the Workplace Safety and Insurance Act for Environmental Sensitivity Arising out of the Workplace

Claims for benefits under the Workplace Safety and Insurance Act have generated much more jurisprudence. Such claims have had mixed results.

Put simply, entitlement to benefits under the legislation will only be paid where it may be proved that the disabling condition arose out of the course of employment. In other words, there must be some proof that the workplace substantially contributed to the development of or exacerbation of the disabling health condition.

A key difficulty in such cases is establishing proof of a triggering exposure, particularly because many people in the workplace may have no reaction to the exposure even though one or a few people with environmental sensitivities are disabled by it. A further difficulty in establishing the workplace as the significant contributing factor in such cases is that claimants’ symptoms often do not cease on removal from the workplace environment. The question becomes, then, whether the triggers causing the reaction are in the workplace, only in the claimant’s home, or in the environment more broadly.

The Workplace Safety Insurance Appeals Tribunal (WSIAT) is the final level of decision-making under the legislation. WSIAT has reviewed claims asserting environmental sensitivity from a number of perspectives. For example, it has reviewed claims based on a diagnosis of Multiple Chemical Sensitivity (MCS), which several WSIAT panels have described as a controversial diagnosis in medical communities. The Tribunal has also reviewed claims citing conditions such as respiratory illness or asthma based on workplace exposures or assertions of environmental issues or sick building syndrome.

A medical discussion paper dated April 2007 was prepared for the WSIAT on "Idiopathic Environmental Intolerance". A key theme in the paper is the medical controversy and lack of information about the condition, as well as the debate about whether the condition is primarily physiological or psychological. In addressing the controversies, the author outlines that MCS is not a recognized disease with demonstrable pathology.

Since the release of this discussion paper, there have been at least two successful appeals to WSIAT based on claims related to MCS. The panel in each case determined that the debate between the physical and psychological origin of the condition was not determinative of entitlement to benefits under the legislation. The WSIAT has distinguished between the need for medical certainty and the need for proof on a balance of probabilities when approaching the issue of causation in such cases. Entitlement to benefits is not contingent on consensus of medical opinion.

For the most part, the WSIAT will consider several factors in environmental or multiple chemical sensitivity cases, including the following:

• the nature and extent of exposure that has occurred in the workplace
• any temporal relationship between the exposure and onset symptoms
• the existence of prior health problems
• results of medical tests
• the worker’s condition upon removal from the substance or exposure
• other potential contributing factors
• the existence of non-compensable psychological problems

Medical experts called by the WSIAT in cases based on MCS, environmental sensitivity, and sick building syndrome cases have tended to have expertise in occupational exposure or respirology. Many of these experts point to the controversy in the medical community over the nature of MCS and related diagnoses as medical disorders. Consistent with the discussion paper outlined above, some of the main reasons for the controversy are that the diagnosis is made where patients demonstrate a variety of commonly-experienced symptoms, which they relate to very low levels of chemicals in the environment. Normal mechanisms of toxicology often cannot account for the development of severe symptoms in the face of exposures to such low levels of concentration. Where several possible contributing factors are identified (such as viral infections, unrelated surgery, etc.), entitlement under the Workplace Safety and Insurance Act will be denied, if the panel determines that such other circumstances or conditions are the more likely contributing factors as compared to workplace exposures (e.g., WSIAT Decision 800/95).

The WSIAT has awarded entitlement to benefits for environmental sensitivities after approaching the illness from both an acute exposure perspective and from a disablement perspective. In some cases, an acute reaction to specific chemical exposures has then developed into a more generalized response in every instance of exposure (e.g., WSIAT Decision 1888/05). In other cases, the Tribunal has been open to a disablement approach, which does not focus on a sudden or acute reaction but recognizes that MCS can develop over time as a result of extended exposure to low levels of chemicals (e.g., WSIAT Decision 2934/01).

Examples of some of the key barriers to the success of such claims include the following: a medical history with other medical conditions having similar symptoms, prior psychological conditions giving rise to similar symptoms, inconsistent reporting of symptoms between medical practitioners, lack of proof of a workplace exposure, proof only of low level exposures not generally considered sufficient to establish causation, symptoms persisting even after the worker’s absence from the environment, or delayed onset of symptoms following exposure to the environment at issue.

However, the adjudication of these cases is very much a case-by-case approach. For example, even though the above factors have precluded entitlement in some cases, the Tribunal has not refused entitlement where some of these same factors have been involved. For example, some panels focussing on MCS as a non-organic condition have emphasized that the existence of pre-existing conditions such as allergies or outside personal stressors will not eliminate the chances of entitlement. Even where those non-compensable factors have been significant contributors to the disabling condition, at least one panel has accepted that entitlement may still be granted as long as the workplace exposure was also a significant contributing factor (e.g., WSIAT Decision 453/04.

Environmental sensitivity is not new, but the medical and legal investigations of the condition continue to evolve and inform each other. We anticipate increasing recognition of the condition in a variety of legal contexts, including accommodation and disability benefit entitlement.