Everyone has body odour, and occasionally, it can affect the workplace. Take the examples of a long-time, excellent employee who develops a condition which results in severe and “offensive” body odour; or an individual with fragrance allergies. These issues raise various questions. What is the responsibility of the “offending” employee, or the employee with the allergy? Do employees have to suffer through their co-worker’s body odour? Is accommodation required; and if so, what? While body odour issues are not as common as some other issues, it can help to illustrate how an employer would deal with issues of competing employee rights.
There are some general principles which should guide employers in weighing whether accommodation is appropriate, who should be accommodated, and how:
- Are there legitimate rights engaged? This involves some consideration and, potentially, an investigation into what the issues are really about, and whether they connect to human rights or other legal entitlements.
- There is no “hierarchy” of rights. All rights have equal status; the question is: what is the appropriate balance in the circumstances. There should be a reasonable attempt to respect the importance of all rights involved.
- Context is important. Rights should not be considered in the abstract. Ask whether concerns fall within the scope of the right considering the context.
- Does the claimed interference with a right amount to more than minimal interference? Depending on the circumstances and the balancing of rights, an existing minimal interference may be warranted.
- Consider whether there is a reasonable solution that allows the enjoyment of each right. Competing rights may be realized in a way which does not negate the other. If not, is there a “next best” solution?
- Any decisions must be consistent with human rights, workplace health and safety, and other laws and regulations.
As a uniquely human environment, the workplace has its special challenges. Issues involving competing rights are becoming more common, and sometimes they can be quite challenging to resolve. For example, it may be appropriate to get a physician’s certificate for the allergy, or a medical assessment regarding the condition giving rise to the body odour. A practical, solutions-based approach to a resolution of competing claims will probably favour both the employer and the employees.
Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits.
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