Perfume, air fresheners, even soap and shampoo are supposed to make the world more pleasant. But that’s not always the case, and those scented products can even present legal risks in the workplace. With many employees claiming an allergy or some other sensitivity to scented products, the human resources department may be tasked with solving an invisible, yet serious, problem that threatens the ability of employees to work together and, even more importantly, implicates the Americans with Disabilities Act (ADA).
If one employee’s cologne is disagreeable to another employee, does the offended employee have a right to make demands? Is it a question of differing tastes, or might the scent present a health risk? If a scent truly does cause or aggravate a health problem, is the employer obligated to do something about it? If so, what options are available?
Fentin addressed fragrance complaints in the workplace in an April 16, 2015, webinar titled “Scent-sational Legal Risks: How to Master Odor and Allergy ADA Accommodations.” She pointed out that under the ADA Amendments Act (ADAAA), more conditions are likely to be deemed disabilities than before it was passed in 2009 and its regulations were implemented in 2011.
Lawsuits filed since the ADAAA came on the scene are still percolating through the system, “but some things are very, very clear,” Fentin said. More employees fit the definition of disabled under the new law.
The question of whether an employee’s sensitivity to a fragrance is a disability depends on the facts and individual circumstances, but if it aggravates a chronic condition, such as asthma, it likely is a disability under the law, Fentin said.
“In many cases, you’re going to need to get further clarification from the employee’s physician as to what actual effect it has on him or her and what the level of severity is, and that’s going to help you in your determination of whether or not this is something you have to pay attention to or not in your workplace,” Fentin said.
Under the law, employers need to explore reasonable accommodations so that employees with disabilities will be able to perform their jobs. Fentin reminds employers that an employee doesn’t need to use any “magic words” to request an accommodation. The employee just needs to in some way inform the employer of the problem.
As for how to start the process, “We always recommend that you work with the employee to identify possible solutions.” Fentin said. “Make a suggestion. Have them come back and tell you suggestions of their own. It should be a back-and-forth dialogue.”
To avoid a claim that the employer didn’t take the issue seriously and failed to enter into the interactive process to explore solutions, “We strongly recommend that you document your conversations with the employee,” Fentin said.
“I even would go so far as to say that you keep a spreadsheet. The minute that somebody identifies themselves as disabled … keep a spreadsheet,” Fentin said. Record the day of the communication, who was present, and exactly what was said. “No editorializing,” she said. “You’re not going to say in the comment section ‘and I think this is a bunch of baloney and I don’t believe her for a minute.’ You’re just going to write down exactly what was said.”
That documentation will be valuable in defending an employee’s accusation that the employer didn’t explore accommodations that would enable the complaining employee to perform the job. Here’s a sampling of accommodations Fentin identified that are generally considered reasonable:
- Allowing a reduced work schedule if less time exposed to a scent helps.
- Allowing regular time off for treatment, such as allergy shots if that will help desensitize the person to the fragrance.
- Allowing a change in work location to get the person away from the source of the scent.
- Allowing a flexible start time.
- Transferring the employee to a vacant position for which the employee is qualified as a way of removing him or her from the source of the scent.
- Allowing a leave of absence for a definite period if a physician believes the leave will allow the person to return to work. Leaves of absence for an indefinite period generally won’t be considered reasonable.
- Providing an air purification system or private air purifier.
- Providing a respirator or paper mask.
- Allowing telecommuting.
Employers may consider implementing a fragrance-free policy, Fentin said, but that requires decisions on such things as whether the policy should require or just request employees to use fragrance-free products and whether a ban on scents is practical.
Job descriptions crucial
Fentin also stresses the importance of job descriptions. An employer’s ability to defend against an employee claiming a violation of the ADA often will hinge on an accurate listing of the employee’s essential job functions. If the employee’s disability prevents him or her from performing the essential functions, termination is justified under the law.
“If your job description doesn’t list all the essential functions, you might find yourself up a creek without a canoe because the employee will say, ‘well, that’s not one of my essential functions so you can’t be requiring me to do it.’ You really do need the paperwork to support your decision and an accurate job description can be your very best friend in an ADA case,” Fentin said.