A recent survey found that potent scents ranked #4 on the list of employees’ workplace pet peeves (see "Overly odorous co-workers" below). Yet for some who suffer from multiple chemical sensitivity, strong odors aren’t just an annoyance—they’re a real health concern. Is it serious enough to warrant ADA accommodation?
In some cases, yes—if an employee complains that certain workplace smells make him or her sick. But you don't need to take any actions that are too expensive or too disruptive. Nor must you accommodate the employee if he or she still wouldn't be able to perform the job's "essential functions."
Still, don't shrug off bad-smell complaints. So-called "multiple chemical sensitivity" can, in some cases, be deemed a protected disability under the ADA. Each complaint must be evaluated on a case-by-case basis, and it will hinge on whether the sensitivity impairs a person's major life activity (such as breathing).
Best bet: Do your best to accommodate such requests by moving an employee's workstation or asking the person's co-workers to voluntarily refrain from wearing perfume. But, as the following case shows, you don't need to turn your business operations upside down to fix the problem.
Example: Desiree Nanette asked to work from home to accommodate her respiratory sensitivity to environmental smells at the office, including perfumes, cleaning chemicals, copy machines, carpets and a nearby building's use of pesticides. The employer declined her work-at-home request, but it offered to transfer her to another facility.
After returning to work from an eight-month absence, Nanette's symptoms resurfaced, and she never came back to work. The employer fired her, and she sued, alleging disability discrimination.
A district court sided with the employer because Nanette couldn't perform the essential job functions from home, including attending meetings, interacting with customers and travel. Her doctor said that even a retrofitted room probably wouldn't eliminate every one of the sensitivities she complained about. In some situations, the court said, a reasonable accommodation simply doesn't exist. (Nanette v. Snow, No. RWT 03-CV-925, D.Md.)
Online resources: For more information on chemical sensitivity in the workplace, go to these web sites:
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- You can discharge if there's no way to tell when employee will return to work
- New govt. guidance on protecting staff from avian flu
- Courts rein in some out-of-bounds employee lawsuits
- Beware desperate 'whistle-blower': Document reason for firing to stop retaliation claim