Disabilities: Possible accommodations for chemical sensitivities

Millions of individuals suffer from allergies or asthma, which can be exacerbated by common environmental agents, such as pollen, dust, latex, nuts, ink, toner, cleaning supplies, fingernail polish, lotions, cologne, and more. Since many of the offending substances are regularly found in workplaces, employers must understand their duty to accommodate those who develop an aversion to odors and allergies in the workplace.

This can become complex because employers must balance compliance obligations with a number of practical issues that often arise when odors and allergies cause flare-ups in the workplace.

Chemical sensitivity and disability accommodation

Chemical sensitivity definitely falls under the definition of disability under the ADA and FEHA. This means that in California an employer is liable for failure to engage in a timely, good faith interactive process – even if there is no reasonable accommodation that can be found. This needs to be an individualized analysis.

To determine what accommodations might help an employee with chemical sensitivity, here's sample language to include in a questionnaire for the medical provider:

• Please describe any substances, allergens or other environmental factors that are relevant to this patient's functional limitation(s).
• Please identify specific substances, products, fragrances, scents, or other environmental factors to which she may not be exposed at all, or for specific increments of time (e.g., 10 minutes, 20 minutes, 30 minutes, 60 minutes or 60+ minutes).
• Please identify specific substances, products, fragrances, scents, or environmental factors to which she may not be exposed at all or within specific distances within her personal work area, in shared areas, or in some combination of locations (e.g., specify how many inches or feet away from the substance the patient may perform work).
• Please identify any mitigating measures that may be taken to minimize or prevent adverse reactions when exposure to the substances or conditions you identify.

While every situation needs to be assessed individually to see what reasonable accommodations might be appropriate, here are some suggestions we've seen from doctors and from other employers that may help accommodate someone with chemical sensitivity:

• Remove all scented products from the workplace
• Transfer to a different department, team, or work group
• Create a completely chemical-free work environment
• Install ventilation, fans, temperature controls, filters (including HEPA filters if needed) or other environmental modifications to confined workplaces
• Allow telecommuting or calling into meetings
• Reassign the employee to a different position or facility
• Allow longer or more frequent breaks for fresh air
• Limit the time in large meetings
• Allow a short-term leave of absence for the illness or allow intermittent leave
• Grant a long-term leave of absence for recovery
• Remove the employee from the work area, and/or modify the workstation location within the facility
• Alter where, when or how a particular essential function is performed
• Designate a fragrance-free or chemical-free zone within the workplace
• Use only unscented cleaning products
• Provide scent-free meeting rooms and restrooms
• Reduce or otherwise accommodate travel requirements
• Modify dress code, where appropriate, for treatment issues
• Provide training to inform and "sensitize" co-workers to the adverse effects of reactions to scent-based products at work
• Provide part-time work schedules, or otherwise modify the work schedule (if you are accommodating with modified schedule, you cannot count it as FMLA intermittent leave)
• Adjust the employee's start time or break schedule
• Address attendance policies with flexibility
• Maintain good indoor air quality
• Provide a private area for medication adjustments
• Grant extended unpaid leave beyond expiration of available leave as a last resort

"If, at the end of the day, the only thing that's going to work is an absolute ban on all fragrances and chemicals in the workplace, then you have to determine whether you can provide that or whether it is an undue hardship. And what is the workplace? Is it the whole building? Is it some parts of the building where the employee works? You want to look at all of that, rather than just looking at the issue narrowly." Patricia Eyres advised in a recent CER webinar.

The above information is excerpted from the webinar "Chemical Sensitivities in California Workplaces: Tips for Sniffing Out Your Compliance Obligations." To register for a future webinar, visit CER webinars.

Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers' comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.