Using Law and Advocacy to win Accommodations for Clients with Electromagnetic
Hypersensitivity (EHS): Part 1 [1], [2]
By David McRobert[3]
This is part 1 of a two-part series on using law and advocacy to win accommodations for clients suffering from electromagnetic hypersensitivity (EHS) associated with use of wireless technologies including routers and cell phones.
Abstract
Electromagnetic hypersensitivity (EHS) is explicitly recognized as a disability in many nations. However, individuals with EHS who make disability claims often are not accommodated by employers or service providers and tend to have limited success in the legal system. This paper provides an analysis of legal protections available in Canada for those living with EHS, and discusses the relationship between law, scientific advances, and the role of metapolicy in developing preventative policies that protect vulnerable persons and overall populations. The paper deals with, amongst other things, the role played by medical professionals in providing accommodation for EHS.
Recognizing and validating EHS is challenging for a number of reasons. Electromagnetic fields (EMF) and electromagnetic radiation (EMR) are odourless and invisible and there are numerous sources of in homes, workplaces, and public spaces. Thus, professional electromagnetic surveys are typically needed to identify sources of EMF and EMR. Industry experts and some medical specialists have argued that EHS cannot be diagnosed using traditional physiological techniques due to psychological factors, the range of non-specific symptoms, and a resemblance of symptoms to those associated with illnesses such as multiple chemical sensitivities (MCS). Consequently, there is a great deal of skepticism towards EHS, especially amongst industry-employed professionals, engineers and scientists, as well as many medical experts, judges and lawyers. These factors often present problems for the Canadian courts and tribunals when considering medical evidence on EHS. Establishing proof of a workplace-related triggering exposure is a key difficulty in EHS cases due to variations in reaction severity - even between several EHS-impacted employees - and because symptoms tend not to cease when the workplace source is removed.
Many of the frustrations that EHS advocates experience with legal and policy systems are related to metapolicies, particularly related to prevention of health impacts and requisite standards of evidence. For instance, Health Canada’s official position is that there is no scientific evidence connecting EMF exposure to the symptoms attributed to EHS, raising the question of whether this stance is truly reflective of evidence. Telecommunications companies seeking to expand markets for new devices and 5G technology have also shaped current EMF/EHS meta-policy, resulting in growing levels of EMFs in public and shared spaces.
Part 2 of this series will examine the challenges facing lawyers and experts associated with addressing alleged injury caused by EHS and other toxic substances through tort lawsuits. Lawyers, experts, and their clients face several legal challenges including: 1) identifying pathways, 2) calibrating dosages, 3) difficult diagnoses due to long latency periods, and 4) a duty on potential plaintiffs of workplace or health insurance claimants to mitigate harm. Many EHS tort cases are addressed through insurance programs when available. Some cases involving workplace exposures are also submitted to the Ontario Workers Safety and Insurance Board (WSIB), which has consistently refused to recognize EHS claims as legitimate disabilities. Accommodations for EHS claimants are typically achieved through government legislation that protects the rights of individuals with ongoing disabilities and/or health impacts. These accommodations can raise conflicts due to competing rights, making creativity and a willingness to compromise essential in the development process. The Accessibility for Ontarians with Disabilities Act (AODA) was expected to significantly advance accessibility in Ontario. However, it is unclear whether any of the committees created through the AODA are examining accessibility standards for individuals suffering from EHS or similar conditions. The good news is that in several cases, organizations, public utility providers, landlords, and workplaces have been adopting a range of measures and accommodations for EHS-sensitive individuals. The bad news is that these individuals often have to make persistent efforts to obtain these modest accommodations.
In the absence of constitutional amendments, mirror laws can address the regulatory and jurisdictional gaps that arise in the Canadian context and mitigate harms related to EMF/EMR, though this would have to be developed on the basis of sound meta-policies. Practical accommodation options that consider competing rights can be used in the short-term. In the long run, development of well thought-out EMF/EMR metapolicies and related laws and policies preventing EHS would be an excellent place to start.
Introduction to Part 1
A growing number of residents in many developed nations are adversely affected by electromagnetic radiation (EMR), electromagnetic fields (EMFs) and related phenomena. While some individuals report mild to moderate symptoms and mitigate the effects by avoiding the fields and radiation sources as best they can, others are so severely affected that they cease work and change their entire lifestyle.[4] This illness is referred to as “electromagnetic hypersensitivity” or EHS and now is explicitly recognized as a disability in many nations.
The World Health Organization[5] defines EHS as “...a phenomenon where individuals experience adverse health effects while using or being in the vicinity of devices emanating electric, magnetic, or electromagnetic fields (EMFs)… This reputed sensitivity to EMF has been generally termed “electromagnetic hypersensitivity” or EHS.”
The symptoms most commonly experienced include, “dermatological symptoms (redness, tingling, and burning sensations) as well as neurasthenic and vegetative symptoms (fatigue, tiredness, concentration difficulties, dizziness, nausea, heart palpitation, and digestive disturbances). The collection of symptoms is not part of any recognized syndrome.”[6]
Many individuals and potential clients are suffering from EHS—they come to lawyers with evidence of harm, and allege employers or service providers have failed to accommodate their disabilities by reducing electromagnetic field (EMF) exposure. Their success in having laws and the legal system address their concerns tends to be limited, even when they have ample financial resources. There also tends to be a degree of skepticism about EHS, especially amongst engineers and scientists employed by industry, many medical experts, and many judges and lawyers. These potential clients and their advocates working in the medical, health and legal fields find they must battle for institutional recognition of EMF disability rights and challenge the power of industries and government agencies who attempt to downplay the potential risks to the public posed by new and existing wireless technologies.
EMF and electromagnetic radiation (EMR) sources are numerous but typically include cell towers, wireless equipment, and personal devices such as cell phones, tablets, and laptops.
Electric and magnetic fields also are generated by household wiring, lighting, and electrical appliances such as microwave ovens, hair dryers, and toasters. Other common sources include computer monitors, photocopiers, fax machines, and fluorescent lights. Power lines and electric tools also emit EMFs. Some medical applications of EMFs include short-wave diathermy and magnetic resonance imaging (MRI). Electrical currents and fields also arise as “stray voltage” from inadequate grounding of buried cables and wiring. Patients and litigants also suggest that wind turbines cause EHS. While historical exposures were generally several orders of magnitude under the limits in internationally accepted standards there is growing evidence that more recent chronic exposures sometimes exceed them.[7]
Nonetheless, technological “fixes” and providing accommodations can be simple and effective in certain circumstances. Professional electromagnetic surveys can identify sources of lower frequencies such as power lines, improperly wired circuits (e.g. with ground return), and fluorescent lights, as well as sources of higher frequencies, such as computers, or the “internet of things”. Wireless systems can be replaced with wired ones, returning organizations to configurations typical in homes and workplaces in the 1990s and 2000s.
Addressing the health impacts of EMFs or radiation present challenges, as they cannot be seen and have no odour. This often presents problems for the courts and tribunals as procedural and substantive rights related to traditional disabilities such as mobility, visual and hearing impairments continue to evolve in developed nations.[8]
Accordingly, the Canadian courts and tribunals are struggling with medical evidence on EHS and other sensitivities. Experts retained by industries involved in causing EMFs often argue that EHS has a large psychological component and resembles multiple chemical sensitivities (MCS), a disorder associated with environmental exposures to chemicals. Moreover, for the past 15 to 20 years many government regulators and industry officials have argued that both EHS and MCS are characterized by a range of non-specific symptoms that cannot be independently verified using traditional toxicological or physiological techniques.[9]
In contrast, the courts regularly award damage for mould in real estate cases because reductions in property value can be quantified using accepted techniques that have been developed by real estate and property appraisal experts since about 1900. At the same time, the courts struggle with making damage awards to litigants on the basis that moulds can synergistically help to cause Multiple Chemical Sensitivities (MCS) and/or Environmental Sensitivities (ES) or depression, despite strong evidence that biochemical mechanisms of mycotoxins can spur MCS and ES.[10]
Yet, despite institutional reluctance to recognize the health effects of EMFs and EMR, there are many signs of severe implications of electromagnetic fields. These include:
-Biological effects can be measured at radiation levels thousands of times below current standards; and
-Electromagnetic “smog” levels increasing rapidly (orders of magnitude more coming with 5G technology).
The extent of EMF in the city of Salt Lake City in surveys undertaken in 2010s is represented in Figure 1. This figure shows the results of modeling of electromagnetic fields in Salt Lake City and illustrates peaks from telecommunications point sources and reflections.[11]
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