Does Banishing Scents Make Sense 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.

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.

How Do You 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.

In 1999, 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.

You should be careful not to get hung up on semantics. In a 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.

Wrapping Up

In light of court rulings on the issue, you 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, you 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.

• California Employment Law Letter
  Excerpted from California Employment Law Letter, and written by attorneys at the law firm of Freeland Cooper & Foreman LLP.The contents of CALIFORNIA EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel. The State Bar of California does not designate attorneys as board certified in labor law. Contact the attorneys at Freeland Cooper & Foreman LLP