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Employee Chemical Sensitivities May Require Extensive Employer Accommodations

    Client Alerts
  • March 01, 2013

Multiple chemical sensitivity syndrome involves employees with allergic or respiratory reactions to scents, odors or other airborne substances present in indoor work spaces. Even since the ADA became effective, employers have struggled with accommodation obligations to employees who claim that exposure to such substances makes it impossible for them to work. In extreme cases, employees have demanded that co-workers refrain from use of any scented candles, air fresheners, perfume or even scented soaps or deodorants. In other situations, employees have requested isolated or separately ventilated work areas to avoid exposure to irritants.

Federal courts have varied in their reaction to these requests.  Earlier this month in Milton v. Texas Dep't of Criminal Justice, the Fifth Circuit Court of Appeals avoided the accommodation issue by concluding that under applicable pre-ADAAA law, the plaintiff was not a protected disabled individual. Undoubtedly, if this situation arose today, the plaintiff would be considered ADA disabled, and the court would have to consider her contention that the employer failed to provide reasonable accommodation because it would not order all perfumed or scented products removed from the workplace.

Employers faced with these requests should avoid immediate judgments. Human resources should take the time to gather medical information and to talk with the employee about his or her specific sensitivities and possible accommodations. If banning scented products from the workplace is not practical, the employer could consider other alternatives such as a separate workspace, telecommuting options or a leave of absence to adjust to allergy medications.

The interactive accommodation process itself provides employers with important legal protections under the ADA. In many cases, it can entirely avoid conflict and later claims. In the worst case scenario, it provides the employer with documentation of accommodation efforts and business reasons why such requests were not accepted.