Yesterday, we looked at various issues relating to employees with allergies or sensitivities to various scents and smells. Today: Must you permit the scent-sensitive to work from home?
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:
Chemical Sensitivities in California Workplaces: Tips for Sniffing Out Your Compliance Obligations―webinar next week! Learn more.
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.
The Bottom Line
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 v
irtual impossibility of enforcing them. In addition, you are advised not to 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.
Chemical Sensitivities in California Workplaces: Tips for Sniffing Out Your Compliance Obligations
Live webinar coming Tuesday, September 10, 2013
10:30 a.m. to Noon Pacific
Millions of individuals suffer from allergies or asthma, which can be exacerbated by common environmental agents, such as pollen, dust, latex, nuts, exhaust from commonly used appliances, ink, toner, cleaning supplies, fingernail polish, lotions, cologne, and more.
Chemical sensitivities can result in dermatitis and eczema.
Because many of the offending substances are regularly found in workplaces―including shared workspaces, common areas like restrooms, lunchrooms, and employee lounges―employers must understand their duty to accommodate those who develop an aversion to odors and allergies in the workplace under the ADA and FEHA, the California counterpart.
In California, there is case law on multiple chemical sensitivities being a disability, but very little on specific policies beyond the requirement that the employer ban all such substances in the workplace if that is what it would take to avoid exposure by the employee. Many accommodation options identified in a few California cases probably won’t work here, such as giving the employee a private work space and separate restroom facilities, telecommuting, and extended discretionary leave of absence.
The quandary for California employers is how to balance compliance obligations with a number of practical issues that often arise when odors and allergies cause flare-ups in the workplace.
Join us on September 10 when our presenter, a seasoned California labor and employment attorney with an extensive background litigating disability discrimination claims and providing clients with practical guidance on how to comply with ADA/FEHA in everyday practice, will provide tips on how to properly handle chemical sensitivities in the workplace.
Participate in this interactive webinar, and you’ll learn:
- Tools for dealing with demands for a scent-free, chemical-free, allergen-free workplace, including legal obligations under the ADA/FEHA
- Practical strategies for managing the workplace when an employee has a chemical sensitivity due to odors and scents
- How to identify potential compliance obligations under the ADA/FEHA when fragrance, odor, and other chemical sensitivity issues erupt in the workplace
- The difference between fragrance sensitivity and allergies
- When an individual’s scent-based ailments are likely protected under the ADA/FEHA and how California law provides broader protections for employees with allergies than the ADA
- Practical strategies for accommodating scent-based allergies in your workplace and the variety of accommodation options you should consider
- What you can and cannot ask for in medical documentation to establish that the affected employee’s chemical sensitivity or allergy is a FEHA disability
- How to respond to overly broad or ambiguous work restrictions from medical providers
- How to recognize when an employee’s gripe about a coworker’s fragrance is actually a request for reasonable accommodation under FEHA
- Three things your organization should never do when an employee with a scent allergy requests an accommodation
- Tips for handling interpersonal conflicts that may arise between coworkers when one’s perfume or soap is allegedly making the other sick
- When telecommuting may be a reasonable accommodation to consider for mitigating the effects of a chemical sensitivity
- When a leave of absence is an appropriate (and last resort) reasonable accommodation―and when it’s not
- How to develop a policy on fragrances that passes the legal sniff test in California, including sample policy language to include
- How a supervisor’s insensitivity to a subordinate’s claim of chemical sensitivity can result in liability far in excess of what a routine accommodation would have cost the employer
- Why training is absolutely critical for your front line leaders in California
- Whether implementing a perfume-free workplace may be a reasonable accommodation that you must make and how to satisfy California’s tough undue hardship defense
- Case studies involving real organizations that have faced allergy and odor accommodation challenges
- And much more!
In just 90 minutes, you’ll get the facts behind asthma and allergy sensitivities and when these ailments are considered disabilities under the ADA and FEHA. Register now for this timely event risk-free.
Download your copy of Training Your New Supervisors: 11 Practical Lessons today!