Most employers have several policies explaining their expectations for employee appearance and hygiene. The policies generally include topics such as appearance, dress, disruption of the workplace, health and safety, and interaction with other employees. Appearance and hygiene policies are generally published in an employer’s personnel handbook. 
Many employers require employees to meet high grooming and hygiene standards as a condition of continued employment, and employers generally retain sole discretion to determine whether an employee’s hygiene and grooming meet their sometimes subjective standards. Employers that do not have hygiene and grooming policies are advised to implement standards as soon as possible because the appearance of employees—especially those who work in the service sector—can have a huge effect on a company’s overall image.
Smelly predicament
Recently, a client was surprised when she was advised not to terminate a loan officer who had been repeatedly warned about hygiene issues. The client’s policy required employees to “maintain good personal hygiene and cleanliness, . . . bathe daily and use deodorant as needed to report to work free of body odor.” The employee was reminded of the company’s policy, admonished to comply with the policy or be terminated, and received progressive discipline for noncompliance.
The client’s customers and employees routinely complained about the loan officer’s body odor and apparent lack of bathing. When the company issued the employee a “final warning” for violating its appearance policy, she said she suffered from trimethylaminuria (a disease that impairs the body’s ability to transform the organic compound trimethylamine and can cause body odor). Although the employee was embarrassed to mention the issue before, she felt her employer should know that the odor was a result of a medical condition, not her willful violation of policy.
As with many issues in the employment context, the client’s situation demonstrates how having a solid policy in place and documenting an employee’s violation of the policy may simply be the starting point of a diligent HR professional’s inquiry.
ADA and state law
Both the Americans with Disabilities Act (ADA) and state laws prohibit employment discrimination against people with disabilities and require covered employers to provide reasonable accommodations to disabled employees unless doing so would impose an undue hardship. Under the ADA and most state laws, disabilities include both mental and physical conditions that substantially limit one or more major life activities, regardless of whether they are severe or permanent. The law protects people who have a medical condition, have a history or record of an impairment, or are perceived by others as having an impairment.
Some metabolic and hereditary disorders that cause body odor and other violations of grooming and hygiene policies have been deemed “disabilities,” including gastrointestinal disorders (flatulence), diabetes (halitosis), hyperhidrosis (excessive and uncontrollable sweating), dermatitis and other skin disorders (infections and flaking skin), incontinence (body odor), depression (disheveled appearance, poor hygiene, and lack of personal care), and trimethylaminuria. Persons with trimethylaminuria generally have an off-putting fishy smell or an unpleasant garbage-like scent that is solely attributable to their medical condition.
Reasonable accommodations required
There are many non-disability-related reasons for poor hygiene. However, when perceived violations of your hygiene policies are caused by medical conditions that qualify as disabilities under the law, your obligation to provide a reasonable accommodation is triggered.
Under both the ADA and many state laws, “reasonable accommodation” is defined as assistance or changes to a position or workplace that enable an employee to do her job despite having a disability. Reasonable accommodations can include modifying or making exceptions to workplace policies. There are certain policies that never have to be modified—e.g., rules that prohibit violence, insubordination, bullying, stealing, destruction of property, sexual harassment, and disrespect to customers and clients. However, other policies may need to be changed. Those policies may include dress codes, some health and safety rules, and rules related to interacting with others and disrupting the workplace.
Whether you must tweak a policy or exempt an employee from compliance altogether hinges on a case-by-case evaluation. You must consider factors such as how often the problem occurs, the nature of the employee’s job, the conduct at issue, and the work environment. Even if you conclude that a policy need not be modified to accommodate an employee’s disability, you still may have to provide another accommodation to allow the employee to comply with the policy.
Under both the ADA and most state laws, it is the employee’s duty to request an accommodation. However, when an employee links a medical condition to a workplace problem, she puts her employer on notice that she may be disabled, and the employer must determine whether an accommodation is required. That is generally done by engaging in the “interactive process.”
The interactive process begins with acknowledging an employee’s accommodation request. In the example at the beginning of the article, the employer was put on notice that the employee may be disabled as defined under the law and may be entitled to a reasonable accommodation. Next, the employer must gather information and confirm that the employee is covered by the ADA (i.e., that she has a disability), which may involve requesting medical certification from the employee’s physician if her disability is not obvious.
If the employer determines that the employee is entitled to a reasonable accommodation (which is usually the case since “disability” is defined very broadly), it must work with her to explore possible accommodations. Accommodations may include exempting the employee from a policy or adjusting the policy to her limitations. In my client’s case, the company could not reasonably delete the rule requiring employees to report to work odor-free, nor could it exempt the loan officer from that portion of the policy.
Instead, the employer and employee explored possible solutions. The employer installed odor absorbers in the employee’s office, installed a ventilation system in her department, and gave her a flexible schedule so she could work from home at her discretion when her condition was particularly challenging. Also, the employer and employee agreed to meet quarterly to monitor the situation, discuss whether both parties’ needs are being met, and evaluate whether the accommodation requires modification.
Bottom line
If you receive information indicating that an employee’s workplace issues may be related to a medical condition, follow the steps above. Before taking disciplinary action that may violate the law, make sure you (1) acknowledge the employee’s accommodation request, (2) gather information, (3) explore accommodation options, (4) choose an accommodation, (5) implement the accommodation, (6) evaluate the accommodation’s success, and (7) seek counsel from an experienced attorney.
Deanna L. Forbush is a partner at Morris Polich & Purdy LLP in Las Vegas, Nevada. She may be contacted at dforbush@mpplaw.com.