The ADA regulations make it easier for employees to file disability claims for allergies and other scent-related conditions. While there are not many cases, some case law already exists that is shaping how employers must react to remain compliant.
These cases have shaped how employers should react when an employee has fragrance sensitivity.
Fragrance Sensitivity Case Example 1: McBride v. City of Detroit
Though this is a landmark case, the employer who did not truly follow the interactive process and thus did not provide a reasonable accommodation for the employee. In Example 2, below, the employer did.
In McBride v. City of Detroit (E.D. Mich. 2008), the employee in question was hired by the City of Detroit as a Senior City Planner – a position requiring her to be in an office setting approximately 40 hours per week. The employee alleged she suffered from a disability and the employer failed to provide reasonable accommodation. The employee claimed to suffer from sensitivity to perfumes, chemicals, and other scented items, experiencing migraine headaches, nausea, chest tightness, coughing, loss of voice, a scratchy throat, and rhinitis when she is exposed to fragrances.
In 2006, several years after employee’s hire, a coworker who wore perfumes, used plug-in air fresheners, and used air fresheners and potpourri in the restroom, was moved to employee’s floor, and the employee immediately began experiencing symptoms. At that time, the employee notified her supervisor of her medical difficulties, and the supervisor spoke to the coworker. The coworker stopped using the plug-in air fresheners but did not stop wearing perfume.
The employee frequently used FMLA leave and sick leave due to her reactions, and filed an EEOC charge and sought the help of her union representative to institute a policy regarding the use of scents in the workplace. The HR department rejected a department-wide scent policy and apparently little was done to formulate any other type of policy. Although relocating the coworker or employee was discussed, no action was taken.
The employee filed lawsuit for the employer’s failure to provide any reasonable accommodations, and the employer filed to have the case dismissed. The court held that the employee had produced sufficient evidence that her breathing was significantly restricted as compared to the average person to create a genuine issue of material fact whether she is a person with a disability under ADA. The court further held that while a “scent-free” policy for the workplace is indeed an unreasonable accommodation because it would require an undue hardship, the evidence indicated that employee was not actually seeking a “scent-free” policy per se—the employee wanted to work with management to come up with something that would provide her relief.
The employee sought to limit the most egregious scents with a written policy (even forwarding her employer a sample policy) and wanted employee education regarding chemical sensitivities. The employer did not offer any evidence as to why such a policy would create an undue hardship. The employer also did not explain why it could not have directed the coworker to stop wearing perfume or why such a directive would constitute an undue hardship either.
The court also held that the record demonstrated that the employer may not have engaged in a proper interactive process, as representatives of the employers allegedly stated that “if she’s allergic to perfumes and colognes then she has the problem, not the employer” and “the problem is [employee] and her symptoms.”
This demonstrates the need for the interactive process and to take fragrance sensitivity concerns seriously.
Fragrance Sensitivity Case Example 2: Buckles v. First Data Resources, Inc.
While this is an older case (8th Cir. 1999), it illustrates the importance of following the interactive process.
In Buckles v. First Data Resources, Inc., the employee was an authorization agent who verified credit card charges over the telephone. The employee suffered from acute recurrent rhinosinusitis, a condition that can create swelling in the face, wheezing or tightness in the chest, concentration problems, and watery and red eyes. The employee’s condition was triggered by irritants such as heavy perfumes, smoke, nail polish, glue, tar and various adhesives. “Certainly, looking at these [symptoms], those would all substantially limit a major life activity.” Jacuzzi confirmed.
In response to the employee’s condition, First Data created a work station for him with better ventilation and prohibited the use of nail polish in the department.
The employee had frequent absences throughout his employment, and when he exhausted his vacation and sick hours, the employer met with him to create a procedure to deal with any attendance problems associated with his condition. The agreed process was that the employee was supposed to sign off his phone, notify his supervisor of the potential problem, and leave the area while an investigation took place and a remedy was developed.
The employee, however, went home when he was exposed to potential irritants rather than leaving the immediate area and waiting for a remedy, and he was disciplined three times for attendance. When the employee was finally terminated for excessive absences, he sued for violation of the ADA.
The jury found for the employee, and the employer appealed the decision by appealing the earlier denial of summary judgment. The employer argued that the employee was not actually a qualified individual for the job because he could not perform one of the essential job functions: regular and reliable attendance. On the other hand, the employee argued that he could regularly attend work with reasonable accommodation, but claimed that First Data’s accommodation was not reasonable because it did not provide for avoidance of irritants in the workplace.
The court found that, even if the employee was disabled under the ADA, the accommodations provided by First Data were in fact reasonable because they sought to avoid exposure to irritants. They found that the employer should not be required to create a wholly isolated work space for an employee that is free from all of the numerous possible irritants, nor should they have to provide an unlimited absentee policy. The court held that the employee had never established prima facie case because he could not identify a reasonable accommodation that would permit him to perform his job.
Mitigating Fragrance Sensitivity: Developing an Odor and Fragrance Policy
November 28, 2012 by Marc L. Jacuzzi, Esq.
Reactions to fragrances may include–
- Difficulty breathing
- Asthma attacks or asthma-like symptoms
- Contact dermatitis (an itchy and inflamed skin rash)
Naturally, employers want to minimize the risk of employees having reactions in the workplace, and this inclination may even be a legal necessity since fragrance sensitivity may easily rise to the level of a disability under the ADA. What type of language should employers include in an odor and fragrance policy?
Outlined below are some examples of odor and fragrance policy language:
- “This is a fragrance-free office. Please help us to accommodate our coworkers and clients who are chemically sensitive to fragrances and other scented products. Thank you for not wearing perfume, aftershave, scented hand lotion, fragranced hair products, and/or similar products.”
- “Given that chemically-sensitive individuals may react to different products with widely-varying degrees of severity, it is very difficult to ensure a consistently comfortable and accommodating work environment under every conceivable set of circumstances. Even so, it is the desire of (Company Name) to minimize to the extent possible the barriers and difficulties experienced in the workplace by both employees and clients subject to chemical/fragrance sensitivities. The company requests that all offices and spaces used by the staff and their visitors remain free of chemical-based scented products.”
- “(Company Name) strives to ensure the comfort and safety of our employees and visitors by encouraging an environment free from smoke, fragrances, or unpleasant smells. These odors are distracting and may trigger allergic reactions or create health problems for sensitive individuals. This policy is meant to cover noticeable odors from any source, including foods, personal items, perfumes, and grooming.”
- “All employees must observe good habits of grooming and personal hygiene. Body odor, from any cause, should not create distractions. To accommodate sensitive individuals, employees are discouraged from wearing or applying excessive amounts of perfume, cologne, scented lotions, or body washes in the workplace; using hairsprays, air freshener, or other scented products in the workplace; and eating or keeping fragrant foods or items at your desk.”
- “(Company Name) has designated the [specify, e.g., rest room or lounge or meeting room, etc.] located at [indicate location] as a “fragrance-free” sanctuary for those sensitive to various odors. All scheduled meetings will be conducted in “fragrance-free” meeting rooms. Employees should be given advance notice of meetings so they can take appropriate steps to minimize fragrances.”
- “Supervisors will provide feedback to employees to ensure compliance with this policy. If an employee is responsible for an unpleasant or distracting odor, a supervisor may ask the employee to leave the workplace until the problem is solved.”
- “If a problem arises due to a disability, (Company Name) will not discriminate against the individual because of their disability and will accommodate the individual unless it causes an undue hardship.”
Employers need to make an appropriate response to an employee with fragrance sensitivity; and the employee needs to promptly and accurately document it for the record.