An estimated 45 million Americans are affected by some form of chemical sensitivity that may be triggered by something as simple as flowers, perfume or hand soap, according to MCS America. Because a chemical sensitivity may be considered a disability under the Americans with Disabilities Act, an employer often has a duty to provide a reasonable accommodation when the employee's sensitivity is aggravated by exposure to a substance in the workplace. However, there are limitations to an employer's obligations in this regard, because the law recognizes that there is only so much avoidance that can be done before an employer would essentially be providing a bubble for an employee to work in. To ensure compliance with the ADA, employers should consider the following guidelines to make sense of their obligations regarding scents in the workplace.
Is Fragrance-Free a Reasonable Accommodation?
While there is no precise test for what constitutes a reasonable accommodation, courts consistently have held that an employee's request for a completely fragrance-free or irritant-free environment is unreasonable because it involves numerous irritants and is generally difficult to enforce given the large number of scent-producing agents one finds in the workplace. Although an employer may have to provide some form of a workplace modification, the ADA does not require an employer to create a wholly isolated workspace for an employee that is free from potential irritants, because it would place an undue financial and administrative burden on the employer. It would essentially require the employer to prohibit all employees (and those who occasionally come into the workplace) of their right to wear scents. Several courts have explained that reasonable accommodations do not encompass proposed solutions that violate the rights of other employees, such as restricting their right to wear fragrances. It would also require the employer to identify and rid the workplace of many other common, scent-producing agents, such as cleaning supplies.
Interestingly, at least one court has suggested that if the employee can pinpoint the particular fragrance or substance, it may be a reasonable accommodation for the employer to ban that particular substance in the workplace. In Core v. Champaign County Board of County Commissioners, 2012 U.S. Dist. LEXIS 149120 (S.D. Ohio Oct. 17, 2012), the employee had a severe chemical sensitivity to a certain perfume and evidenced difficulty breathing upon exposure to this single scent. The court granted summary judgment to the employer on the employee's failure-to-accommodate claim because the employee rejected the employer's reasonable accommodation of requesting the staff not to wear the particular perfume to which the employee was sensitive.
Examples of Reasonable Accommodations
Courts have held the following actions to be reasonable accommodations for an employee with a chemical sensitivity:
• Prohibiting the use of a particular substance in the workplace.
• Creation of a work station in another room with better ventilation.
• A system whereby if the employee was sensing an irritant, he or she could notify the supervisor and exit the area until the problem was remedied.
• A combination of a special seating arrangement, intervention with specific employees that wore irritating fragrances and a department-wide memorandum from management encouraging employees to be considerate of individuals with sensitivity to fragrances and perfumes.
Can an Employer Request Medical Documentation?
Yes. In its Enforcement Guidance on Reasonable Accommodation and Undue Hardship, No. 915.002 (Oct. 17, 2002), the U.S. Equal Employment Opportunity Commission takes the position that an employer may require documentation to establish that a person has a disability, and that the disability necessitates a reasonable accommodation. In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations and the need for reasonable accommodation. Further, the individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the employee's physician. Interestingly, in Anderson v. JPMorgan Chase & Co., 2011 U.S. App. LEXIS 5885 (11th Cir. Mar. 22, 2011), the court suggested that the employee was responsible for the breakdown in the interactive process where she would not allow the employer to discuss with her doctor her alleged allergy to carpet cleaner after attempts to accommodate her were unsuccessful.
What If Attempts to Accommodate Fail?
Although this is a highly fact-specific inquiry, if an employer attempts numerous accommodations but finally concludes that there is no accommodation that would allow the employee to perform the job, the employer has fulfilled its duty under the ADA. For example, in Cassidy v. Detroit Edison, 138 F.3d 629, 634 (6th Cir. 1998), the court held that the employer did all that it possibly could to accommodate the employee by providing several reasonable accommodations, including: initially transferring the employee to a different department after her first asthmatic attack; flexible scheduling; scheduling cleaning and maintenance to occur when the employee was gone; allowing the employee to leave when she may be exposed to allergens; allowing the employee to use her prescribed breathing apparatus at work; allowing the use of paid and unpaid leave; and testing the employee's work area. Further, in Heaser v. AllianceOne Receivables Management, 2009 U.S. Dist. LEXIS 6079 (D. Minn. Jan. 27, 2009), the court held the employer's proposed accommodations went above and beyond what was required by the ADA. Specifically, the employer made no fewer than 20 accommodations, including: special equipment; a private bathroom; training other employees; a voluntary scent-free policy to discourage fragrances that might trigger the employee's allergies; and specialized seating and scheduling to minimize the employee's contact with other employees. The court rejected the employee's claims that the company's unwillingness to provide further-improved ventilation, a mandatory scent-free workplace or permission to work from home was unreasonable.
What If Employee Refuses Accommodation?
Employers are not obligated to provide the specific accommodation requested by the employee; rather, employers are required to provide a reasonable accommodation. That said, an employee may refuse a reasonable accommodation offered by the employer; however, if the employee cannot perform the job without it, the employee will not be considered "qualified" under the ADA. In Yovtcheva v. City of Philadelphia Water Department, 2013 U.S. App. LEXIS 9247 (3d Cir. 2013), the court held that the employee with the chemical sensitivity was not a "qualified individual" under the ADA because she refused to try the employer's proffered accommodation of a partial-face respirator. The court explained that because the employer offered the employee a reasonable accommodation and she refused it, the court would not consider the possibility that she could have been reasonably accommodated by a transfer.
What Should Policies Include?
If an employer is considering implementing a fragrance-free policy, the policy should generally include the following language:
• In consideration of employees, clients or other visitors to our office who may have sensitivities or allergies to various fragrances or scented products, our office maintains a fragrance-free workplace.
• This means employees should refrain from wearing fragrant products in the workplace that others can smell, such as perfumes, colognes, powders, scented body lotions and similar products.
• Scented products such as candles, scented oils and similar products are also prohibited in the workplace.
• Any employee with a concern about scents or odors should contact his or her manager or human resources.
If an employer institutes a fragrance-free policy, the employer does not have to prevent all violations of the policy. Courts have held that it is unreasonable to expect an employer to create a perfectly sealed environment, explaining that demanding a completely scent-free environment to be policed by supervisors and enforced with disciplinary punishments would not only be impractical, but virtually impossible. For example, in Kaufmann v. GMAC Mortgage, 229 Fed. App'x 164, 168 (3d Cir. 2007), the court held that it was unreasonable to expect the employer to prevent all violations of its perfume policy, because the fragrances were not necessarily noticeable by others, so it would have been difficult to identify employees wearing lightly scented products before the employee with the sensitivity was exposed to them. The court held that the employer fulfilled its obligation because when employees were suspected of wearing scented products, the employer responded appropriately, reminding employees of the importance of keeping a perfume-free environment. Moreover, knowing that some scents would likely enter the environment, the employer improved air quality by changing the air filters and providing a fan to the employee with the chemical sensitivity.
Responding to a Request
Once an accommodation has been requested, the employer should initiate an interactive process with the individual. Courts have generally held that the interactive process requires employers to: (1) analyze job functions to establish the essential and nonessential job tasks; (2) identify the barriers to job performance by consulting with the employee to learn the employee's precise limitations; and (3) explore the types of accommodations that would be most effective. Employers can demonstrate a good-faith attempt to accommodate by meeting with the employee, requesting information about the limitations, considering the employee's requests and discussing alternatives if a request is burdensome. Employers should document the discussion about the accommodation and the final determination about how the accommodation request is resolved, including any undue hardship analysis.
In sum, while an employer is not obligated to provide a fragrance-free workplace, the employer still must engage in the interactive process with an employee requesting an accommodation for a chemical sensitivity to determine if a workplace modification is available that would not place an undue hardship on the employer's business.
Tiffani L. McDonough is a labor and employment attorney with Obermayer Rebmann Maxwell & Hippel in Philadelphia and the editor of HRLegalist (www.hrlegalist.com). Her national practice includes representing employers in employment litigation and counseling on human resources matters, including disability accommodation issues and the implementation of workplace policies.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Reprinted with permission from the May 14, 2014 edition of THE LEGAL INTELLIGENCER © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 347-227-3382, email@example.com or visit www.almreprints.com. # 201-05-14-09