Making Sense of Scent Issues at Work
It seems that the number of people with allergies or sensitivities to various scents and smells has grown substantially. Some of those allergies can be severe, causing severe respiratory difficulties and other serious health issues. Questions continue to arise about the often competing rights of allergic employees and coworkers who wish to be able to eat what they want and use whatever hygiene and personal products they choose. Read on for the most recent information on this conflict for employers.
Americans with Disablities (ADA) Compliance Manual
Are ’scent’ allergies protected under the law?
For employees to be protected under the Americans with Disabilities Act (ADA), they must have a mental or physical condition that substantially limits a major life activity. Before the ADA Amendments Act (ADAAA) took effect in early 2009, courts considering whether an allergy to odors in the workplace qualified a person as “disabled” analyzed the following criteria:
- the nature and severity of the impairment;
- the duration or expected duration of the impairment; and
- the permanent or long-term effect of the impairment.
Significantly, courts did not consider a person disabled if mitigating measures (e.g., allergy shots or medicine) prevented the impairment from substantially limiting a major life activity.
When the employee’s allergy was unrelated to his work environment, courts typically found that the employee wasn’t disabled under the ADA. For example, a Pennsylvania court ruled that while an employee’s allergy to cats and dogs was a “physical impairment,” it didn’t substantially limit a major life activity and therefore wasn’t covered under the Act. In fact, even when the allergy stems from exposure to an aroma at the workplace, courts have been reluctant to find an individual “disabled” under the ADA.
In one noteworthy Minnesota case in 2001, an employee suffered from a condition known as “multiple chemical sensitivities,” which caused him to experience sinus and respiratory difficulties while working as a chemical engineer. Again, although the judge found that the condition qualified as an impairment, the employee wasn’t “disabled” because his symptoms were “ameliorated or eliminated by avoiding the environment at work.”
However, in January 2009, Congress enacted extensive changes to the ADA. One of the most significant changes involves determining whether an impairment substantially limits a major life activity. Under the ADAAA, that question must now be answered without regard to mitigating measures (except “ordinary eyeglasses or contact lenses”). In addition, even if the individual’s impairment doesn’t currently limit a major life activity in a substantial way, he may still be disabled if he is limited when the impairment is “active.”
Taking its cue from Congress, the Equal Employment Opportunity Commission (EEOC) has issued proposed regulations addressing the issue. The proposed regulations state in part:
An individual with asthma who is substantially limited in respiratory functions and breathing compared to most people, as indicated by the effects experienced when exposed to substances such as cleaning products, perfumes, and cigarette smoke, is an individual with a disability.
Thus, it appears that if the employee’s allergy is “severe” when he comes in contact with the odor or substance, he is likely “disabled” under the ADA.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including ADA
How do employers accommodate scent allergies?
If allergies and sensitivity to odors are in fact disabilities, the issue becomes whether you can reasonably accommodate an employee with a scent allergy. As we all know, the ADA provides that reasonable accommodations may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . and training materials or policies.” However, an accommodation isn’t reasonable if it imposes undue financial or administrative burdens on the employer or requires a fundamental alteration to the nature of the job.
Ten years ago, the Eighth U.S. Circuit Court of Appeals decided an important case. An employee suffered from severe sinus attacks that were triggered by common workplace irritants (e.g., heavy perfumes, smoke, nail polish, glue, and adhesives). According to the court, the employer “made great efforts” to accommodate the employee, prohibiting the use of nail polish in his department and creating a workstation for him in a room with better ventilation. It also allowed him to stop working if he was sensing an irritant so he could wait for the problem to be remedied by his supervisor.
The appeals court ruled that the employer’s accommodations were sufficient to meet its obligations under the ADA. Significantly, the court refused to require the employer to go so far as to provide the employee with “an irritant-free work environment.” Buckles v. First Data Resources, Inc.
Other appeals courts have issued similar decisions. Recently, the Third Circuit in Pennsylvania determined that an employer reasonably accommodated an employee’s disability of being allergic to various scents by instituting a perfume-free workplace policy, providing the employee with a fan and a new air filter, and changing old air filters throughout the workplace. Like the Eighth Circuit, the Third Circuit concluded that the employer didn’t have to ban all odors from the workplace, explaining:
It is unreasonable to expect [the employer] could have prevented all violations of its perfume policy, but when employees were suspected of wearing scented products, [the supervisor] responded appropriately, reminding employees, individually and collectively, of the importance of keeping a perfume-free environment.
When faced with employees claiming sensitivity to odors, you should remember that the first order of business is to engage in what the EEOC calls “the interactive process” — discussing the problem the complaining employee is having and talking with him about possible resolutions. That includes reviewing medical information and investigating the feasibility of various accommodation options.
Employers should be careful not to get hung up on semantics. In a recent Michigan case, the employer rejected a request for a “scent-free policy” because it would impose an undue hardship. However, upon closer inspection in court, it appeared that the employee was simply seeking a “perfume-free” policy and had provided the employer with a sample of such a policy. The sample policy provided that “mild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.”
The court observed that this type of policy doesn’t require a completely scent-free environment, nor does it address the public or those outside a department. Because the employer failed to evaluate the actual accommodation that was requested and didn’t introduce any evidence showing why the perfume-free policy would create an undue burden, the court held that it was “unreasonable” in failing to accommodate the employee.
Can an employee insist on telecommuting as an accommodation?
One final issue is whether working at home is a reasonable accommodation that must be considered in response to scent allergies. The Eighth Circuit has found that “regular and reliable attendance is a necessary element of most jobs” and therefore is reluctant to require telecommuting as an accommodation. Other courts have issued similar rulings, such as the Seventh Circuit in Chicago, which explained:
Most jobs in organizations[,] public or private[,] involve team work under supervision rather than solitary unsupervised work, and team work under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home.
However, the EEOC is not convinced. Guidance from the commission on reasonable accommodation suggests that allowing an employee to telecommute might be a reasonable accommodation that has to be considered. The guidance states in part:
Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework. However, an employer is not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternate accommodations as long as they would be effective.
It is reasonable to expect that with increasing numbers of employees working at home on a regular basis, and as technology increasingly overcomes physical distance, the EEOC will scrutinize refusals to offer the option to telecommute.
Webinar: ADA Accommodation Compliance: Mastering the Interactive Process
Bottom line
In light of court rulings on the issue, employers are advised to view allergies to odors and sensitivity to chemicals as disabilities in most cases and to anticipate that accommodation may be necessary. As in previous cases, instituting a perfume-free policy, providing fans or other ameliorative devices, and adjusting the air filters and air flow in the work area will probably be viewed as sufficient to meet your obligations under the law. Rules mandating completely fragrance-free environments are likely not going to be required by the courts because of the virtual impossibility of enforcing them.
In addition, employers shouldn’t reject telecommuting options. Although it might seem reasonable that an employee’s physical presence is a necessity, it’s best to at least review the possibility during the interactive process and make sure that old assumptions about telecommuting remain valid in your current way of doing things. In short, it makes sense to address scents in the context of disability accommodation.
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About: South Dakota Employment Law Letter: Excerpted from South Dakota Employment Law Letter and written by attorneys at Lynn, Jackson, Shultz & Lebrun, P.C. South Dakota Employment Law Letter is not intended to provide legal advice or opinions, but rather to provide information about current developments in South Dakota employment law. Questions about individual problems should be addressed to legal counsel. Contact the attorneys at Lynn, Jackson, Shultz & Lebrun, P.C. |
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Thursday, February 11th, 2010 at 9:03 pm under
Greetings.
I have read this information with great interest, and wish to advise you that I have been working full-time from home for my employer since 2003; unsupervised; highly productive; & a valued member of the team.
I am a Canadian, with Multiple Chemical Sensitivities, and severe multi-system reactions to scented products and environmental contaminants (eg. cleaning solutions; adhesives; printer toner; vehicle exhaust fumes; etc.). Exposures can not only be unpleasant, but could also precipitate a heart attack; stroke; or anaphylaxis.
I am aware of many ‘remote’ workers who choose to work in a ’safe’ environment. I can assure you that not one of these individuals is a ’slacker’.
I always tell individuals who are questioning a ’scent-free’ workplace; seminar; workshop; or meeting venue that everyone has a responsibility for doing their part in achieving a safe environment and ….. telling someone that a little bit of scent is OK, is like telling someone in a wheelchair, that it is only 8 steps to maneuver ….. a very powerful analogy.
Paula Bilton
February 19th, 2010 at 12:30 pmThis is such an important issue and frequently overlooked. I get migraine headaches triggered by strong scents. I can’t tell you how miserable it is to be in a confined space with someone with too much perfume or aftershave on. I can’t go to public movie theaters due to this problem. Workplaces could easily adopt a no scent policy and it isn’t uncommon in California for employers to have scent free workplaces.
August 2nd, 2010 at 9:23 pmEmployers are scared to institute the scent-free policy. My employers asked my co-worker to stop wearing any scents and she didn’t for 2 months. She’s back to it and I’m fearing that if I ask them again to ask her to stop (she’s been here longer), that “I” will be fired for “something” and black-balled in my field of work. BTW, anyone else HATE Bath & Body Works?! :/ I hope many more lawsuits come down the pike and curtail all this scent-wearing madness. Employers will get the hint and put a stop to it, once and for all!
August 9th, 2011 at 9:53 amI think it’s reasonable to ask people to refrain from wearing perfume/cologne but it is unreasonable to ask people to not wear any scents. Shampoo, conditioner, hair spray, body wash, soap, lotion, and deodorant all have scent (whether it be a ‘natural’ scent or perfumed)and to tell someone they cannot wear certain products becomes dictatorial. What about skin allergies that determine what products a person can wear?
I would rather smell something nice than someone’s bad body odor. As a female who is going through the ‘change’, I wear scented deodorant and do not want someone telling me I can’t.
There has to be a balance out there and companies need to do a better job of communicating these changes to staff so that no one side feels ostracized. There should be a team effort.
November 20th, 2012 at 2:11 pmYes bath and body works is the worst. Perfume today is the same as second hand smoke twenty years ago. Why do you think people call it per”fume” its a mixture of volatile chemicals. If I had a peanut allergy and needed co-workers not to eat peanut butter products while at work there would be no problem but because most can’t see how painful and disruptive asthma attacks can be they just don’t have any sympathy. There will be more lawsuits because we have a right to breath safe air while working.
December 25th, 2012 at 10:08 pmwell… i have a serious allergy to extremist and selfish people.
I myself am allergic to dust and certain smells but i don’t go demanding my workplace to ban anything or anyone. I simply avoid contact and always carry with me an allergy pill.
I find it selfish and disrespectful of others that a whole workplace has to abide by a rule dictated by one person that suffers such allergy.
Yes, we – allergic people – suffer a lot with our symptoms when it gets triggered, however we can not make everybody else’s pay for our disability.
There are far many ways of avoiding triggering the allergy without causing such a mess all around.
Let’s leave in peace, shall we? Communication is the key!
January 7th, 2013 at 10:51 pmmoni, I’m glad your situation is one where you can choose not to force what feel like unfair working conditions on others, since you can tolerate exposure to your triggers, but I wonder whether you’ve ever had an anaphylactic reaction to an odor.
I experience dangerous airway swelling when I’m around even tiny amounts of my trigger, and I’m not aware of an allergy pill that could help to shut down that type of reaction quickly or efficiently enough to continue working in the same area without interruption. My choices are to drop everything and leave the area immediately until the odor is gone, taking extra Benadryl and rescue inhalers as I go, or use my Epipen and then head out to the ER afterwards. Either way, my ability to do my job is affected.
I feel strongly that it would be equally selfish of me to choose to be unemployed and rely on taxpayer support provided by others, when I have a condition where I can still be a contributing member of society and take care of myself money-wise, given the right accommodation. In not working, I would still be making others pay for my disability, as you say, and I agree with you that that’s not right if it can be avoided.
I honestly am glad that your situation is so well-controlled and easy to accommodate – I’d give almost *anything* to be like that. But not all of us have such a manageable allergy, where we can avoid having to ask our coworkers for help. Yet we still want to be able to live and work and provide for our families, like everyone else does, and we can do that just fine, with a little extra understanding and adapting in the workplace.
January 12th, 2013 at 7:51 pmIf a workplace has a fragrance free policy and an employee is not following it can they be let go?
January 30th, 2013 at 9:35 ami work in the court system in Utah. there is a clerk that wears a LOT of perfume and i am allergic to it. she and i sometimes have to use the same phone and her perfume is suffused through the air and on everything she touches. HR has forbidden me to even speak to her about it, and has also refused to speak directly to her about it. perfume causes my skin to swell, including my eyes, and makes my skin burn. it’s very frustrating that HR completely protects the perfume wearer and insists that i continue to either suffer or find other employment.
February 21st, 2013 at 3:28 pmHUD Legal Staff has a position statement and legal opinion on the HUD.gov website regarding multiple chemical sensitivity. The statement distinguishes between a regular allergy (controlled by a pill) and life threatening multiple chemical sensitivity that is also known as environmental illness or fragrance sensitivity. Fragrance chemicals are undisclosed (trademark secrets)to consumers and contain known carcinigens and hormone disruptors. Once a person becomes reactive to fragrance, that person may be very close to total disability and unable to work anywhere. We do not know how the copier fumes, printer fumes, cleaning chemicals and room deodorizers, plus personal fragrance are mixing together to form a toxic brew in a building that just recirculates the air with no outside ventilation. Add remodeling, paint, glue, new building isulation, cigarette smoke and it will get someone completely disabled. SSA found me disabled under their rules after I had to leave with burning eyes and face, never to enter that building again. My opthalmologist found holes in my eye surface, lipid layer. Solvents can burn through the lipid layer of the eye surface and burn the cornea. I had terrible distress from Bath and Body Works products too. Too bad employers don’t realize they may be setting all their employees up for disability down the road. I would not want this to happen to my children either. Now I live with my elderly mother. People seem surprised when I tell them I cannot be around perfume, and therefore cannot work now. Too bad – safe air should be everyone’s concern. Perfume or fragrance can easily be part of the dress code at work. The Centers for Disease Control (CDC)has a fragrance free policy also because of the unknown chemicals in fragrance interfering with office productivity and causing disability for some employees.
March 27th, 2013 at 12:59 pmAccommodations for asthma, fragrance sensitivity, multiple chemical sensitivity, alergies, allergic rhinitis, environmental illness are found at ASKJAN.org a website sponsored by the US DEPT of LABOR. Ask your employer for a copy of their policy on accommodations AND get any forms they require you to fill out. Discuss accommodations found at ASKJAN.org with your doctor. Give your employer a diagnosis of your medical condition from your doctor and ask your doctor to recommend an accommodation for that diagnosis. Good luck.
March 27th, 2013 at 1:15 pmI like the policies that tell people not to wear scents, of any kind, that can be perceptible. It’s not just perfumes that are a problem, but lots of other body products too. We had a new staff member with long hair who used a highly scented shampoo, conditioner, and hair-care products. This caused allergic reactions in three staff members: asthma, hay fever, and migraines. The untrained HR manager didn’t handle it well (telling allergy sufferers ‘not to say anything’ and the woman wearing the hair products wasn’t concerned that she was making three co-workers extremely ill). The case ended up before the California Fair Employment & Housing agency and nearly landed in litigation. (Kudos to other employers in our area who even tell job applicants that they aren’t permitted to wear scented products to the job interviews or on the job.)
May 29th, 2013 at 12:14 pm