Chemical sensitivities in the workplace: Common scenarios employers face

What might trigger chemical sensitivity for employees in the workplace? Here we provide a list of possible triggers and resulting symptoms, as well as common scenarios employers may need to face regarding employees with sensitivities.

Some examples of things that could trigger chemical sensitivity include:

• Perfumes, scented cologne or aftershave
• Shampoo and conditioners
• Hand or body lotions or creams
• Air fresheners and deodorizers
• Hair sprays
• Scented candles, potpourri or scented items on desks or in restrooms
• Soaps or detergents with lingering scents
• Sun screen used throughout the day within confined areas
• Deodorants, hairspray or other personal hygiene products
• Cleaning products for floors or desk surfaces
• Toner cartridge
• Exhaust from common office products or
• Exhaust from machinery like leaf blowers used on the grounds
• Nail polish and/or nail polish remover
• Latex in health care or classroom settings
• Strong food odors in lunchroom areas (such as microwave popcorn)

Someone who has a chemical sensitivity might experience a range of symptoms, including:

• Asthma triggered by an exposure
• Sneezing
• Gasping for breath
• Rashes, itching or other "contact" reactions
• Nausea or other stomach disturbance or gastric distress
• Blurred vision
• Dizziness
• Fatigue
• Impaired memory or concentration
• Headaches or migraines
• Insomnia or other sleep disturbance that affects job performance

Additionally, affected individuals may have situational or interpersonal issues within their work group, resulting in the inability to work in a particular environment. It's easy to see how problematic chemical sensitivities are for those who suffer from them.

Employers have an obligation to use the interactive process to try to find a reasonable accommodation for these employees (as these chemical sensitivities do typically qualify as disabilities in many cases), but finding an accommodation may indeed require a lot of questions to get to the heart of the matter.

Chemical sensitivities in the workplace: Common scenarios

Here are some common scenarios employers might encounter:

Scenario #1:

A teacher informs the school district that she must have a scent-free environment in the classroom, in common areas such as the cafeteria or lounge and in faculty meetings. This triggers the interactive process.

Employer reaction:

"Often in this area, the employee will come with a note from their healthcare provider where the healthcare provider has said 'no exposures' – zero exposures in the workplace – and that is the employee's preferred accommodation. If you do an interactive process effectively, you [will ask]: What are all of the ways that we might reduce or eliminate exposures to allow this employee to come to and stay at work and perform at an effective and productive level and not be made sick or injured or have chronic allergy conditions? What can we do? What are all the things we might be able to do?” Patricia Eyres explained in a recent CER webinar.

"If you're fortunate, you might have 5 or 6 different things you can do with the air filters and other things . . . the employee may still say 'my preference is that we ban all chemicals and all scented products.' In this area of reasonable accommodation – as in all areas of reasonable accommodation – every decision is an individual decision, looking at the employee's restrictions or functional capacity, the essential job functions, where and how the job is being performed, and your business needs in that window of time.

"You have the right as the employer to offer, if you find one, a reasonable accommodation. You have the duty to engage in the interactive process and explore all potential reasonable accommodation. You then have the right to offer the one that is most compatible with the employee's needs and your business needs and performing the essential job functions—even if it is not the employee's first choice."

You can always question the doctor about potential alternatives if the first suggestion is not practical for the employer.

Scenario #2:

An information technology professional, who must visit different departments to provide services, submits a doctor's note stating that he must work in an "allergen-free" and "chemical-free" work environment at all times.

Employer reaction:

This is much more difficult than it would be to simply have a zone that is allergen or chemical free. But you can still perhaps limit it – it could be chemical free on certain days of the week in which the individual will be in those areas.

Scenario #3:

A new clerical employee asks her co-worker to stop using scented moisturizer and lotions because they give her migraines. The co-worker refuses and then stops providing any work assistance to the clerical worker. The clerical worker asks HR for a change of workstation location or a scent-free policy but HR refuses. The clerical worker complains the work environment is harassing and retaliatory.

Employer reaction:

This situation represents a complete failure to engage in the interactive process, which is a violation of FEHA, even if there is no reasonable accommodation in the end.

Whether or not it is truly an example of harassing the employee is up for debate, since we don't know whether the individual was actually harassed or whether there is merit for this claim. We do have clear evidence of retaliation, however, because the new clerical worker made a request for accommodation (and thus has exercised her rights), and was denied assistance from the co-worker.

This situation will not only require the interactive process to be followed to see if a reasonable accommodation can be found, but it also – completely separately – calls for an investigation to see whether there is a harassment or retaliation occurring.

Scenario #4:

Instead of ignoring the issue outlined in Scenario #3, HR immediately institutes a "fragrance-free" zone for the whole department, but without any interactive process. Three employees complain to HR that environment is hostile and that the clerical lied about her migraines to cover up her poor performance.

Employer reaction:

While there is an obvious friction issue here between co-workers, there's also the issue of not using the interactive process.

"The interactive process is designed to – we hope – evaluate all the potential reasonable accommodations so that, for your business purposes, you can find the one that is most compatible with the affected employee's needs, and with the business needs of your organization or your department in mind." Eyres noted.

You need to review the restrictions, where he or she can effectively perform the essential functions, and what your business needs are –

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.