The human resources department often finds itself in the position of mediating disagreements about thermostat settings, noise levels, perfume sensitivities, and an array of other workplace issues. But when employee preferences—or even prescriptions—intersect with the law, the job gets more challenging. Recently a group of attorneys was asked whether an employee’s use of aromatherapy at work is protected under the Americans with Disabilities Act (ADA) even if the scent bothers a coworker. 
A “holistic doctor” has prescribed aromatherapy for an employee suffering from anxiety. The employee uses the therapy as sparingly as possible, but it apparently bothers one of her coworkers. Although he has complimented her on the scent, he also has emailed her supervisor complaining about it.
HR’s task now is to figure out whether the employer is obligated to allow the aromatherapy as a reasonable accommodation for the employee’s anxiety or whether it infringes on the complaining employee’s rights.
Qualifying disabilities and reasonable accommodations
“This is an interesting question because both employees could, in theory, claim they have a protected right” under the ADA, Allison Wannop, an attorney with Dinse, Knapp & McAndrew in Burlington, Vermont, wrote in the February issue of Vermont Employment Law Letter.
“An individual has a disability if she has a mental or physical condition that substantially limits a major life activity,” Wannop says, adding that the ADA Amendments Act (ADAAA), which became effective January 1, 2009, makes clear that “disability” is to be construed broadly. Therefore, the employee’s anxiety likely qualifies as a disability requiring the employer to provide a reasonable accommodation.
If the employee has a disability and the aromatherapy enables her to perform the essential functions of her job, “then her use of aromatherapy is protected by the ADAAA,” Wannop says. “However, you also have to consider the rights of her coworker.”
Wannop explains that a growing segment of disability litigation involves employees with allergies or sensitivities triggered by fragrances. But the complaining employee may merely dislike the smell rather than being harmed by it.
“If that’s the case, it might be worth explaining to him that the company is treating his coworker’s use of aromatherapy as an accommodation protected by the ADA,” she says. “Be aware, though, that he may be able to say that he has a right to be free from annoying fragrances. If he asks for an accommodation because of an allergy or sensitivity to the fragrance, he would also need to be accommodated.”
“Holistic doctor”
Besides deciding whether to allow the aromatherapy, the employer needs to decide whether it’s obligated to allow an accommodation prescribed by a nontraditional health care professional. “As more and more employees seek treatment from alternative practitioners, this issue is sure to become more prevalent in the workplace,” Jane Wipf Pfeifle and Kassie McKie Shiffermiller, attorneys at Lynn, Jackson, Shultz & Lebrun, P.C. in Rapid City, South Dakota, wrote in the February 2015 issue of South Dakota Employment Law Letter.
Pfeifle and Shiffermiller point out that the ADA doesn’t prevent an employer from requiring an employee to go to an appropriate healthcare professional of its choice if the employee provides insufficient information from her practitioner to substantiate that she has a disability and needs a reasonable accommodation.
“For now, a discussion with the employee about her stress levels at the workplace and her use of essential oils to relieve stress may be appropriate,” Pfeifle and Shiffermiller wrote. “Perhaps she can ask her holistic doctor about alternatives to aromatherapy that won’t be disruptive to her coworkers.”
H. Mark Adams, a senior partner at Jones Walker LLP in New Orleans, Louisiana, says the employee’s holistic doctor is likely to fit the definition of healthcare provider under the ADA. “Considering how broadly the law now defines ‘disability’ and ‘healthcare providers,’ your employee’s condition probably qualifies as a disability, and you should assume her ‘holistic doctor,’ if he’s properly qualified, is a ‘healthcare provider’ for purposes of the Americans with Disabilities Act (ADA).” Adams wrote in the February 2015 issue of Louisiana Employment Law Letter.
Need to learn more? Tune in for the BLR webinar “Scent-sational Legal Risks: How to Master Odor and Allergy ADA Accommodations.” Join us on April 16, when our presenter, a skilled employment attorney, will explain your ADA compliance rights and obligations when it comes to fragrance and odor allergies.