Is sensitivity to workplace fragrances or odors a disability under the Americans with Disabilities Act (“ADA”)? Can an employee really need an accommodation for the way an office smells or for a perfume another employee is wearing? Believe it or not, this was the issue one of C2’s government contracting clients recently had to confront. C2 received a complaint from a female employee of one of our client’s regarding the offensive smells in her workplace, which were apparently stemming from a fragrance that a few employees were wearing. The employee complained that the fragrance was giving her migraine headaches and exacerbating her allergies. Both the client and the employee wanted to know what could be done. The answer is not always easy, but C2 was there to help them sniff out a solution.
A. Is Smell Sensitivity Really a Disability?
As with any potential disability claim or accommodation request, the first step is to evaluate whether the complained of “disorder” might be a disability. Smell sensitivity is more common than you might think. However, to rise to the level of being a disability an impairment must substantially limit one or more major life activities, must afflict a person who has a history or record of such an impairment, or the employee must be perceived by others as having an impairment. C2 took the claim seriously, and contacted the client to notify them of the employee’s complaint and advised them on the next steps. Typically, sensitivity to smell, standing alone, will not rise to the level of a disability. However, the smell sensitivity can sometimes be a symptom of a more significant disorder that might qualify as a disability. This means some people with fragrance sensitivity may have a disability under the ADA while others may not.
At first, the client was reluctant, and did not want to entertain the employee’s complaint – after all, at first blush, it seems ridiculous to rearrange an employee’s work environment over perfume preferences. But as we pointed out to our client, believe it or not, there have been cases where companies dismissed such employee complaints and were later successfully sued by the employee. Fortunately, C2 was able to explain the potential repercussions of not responding to the client, who then agreed to follow the ADA process for evaluating potential disabilities. That “interactive process” entails allowing the employee the opportunity to go see her physician and having the physician complete a short series of questions in order to determine if the she meets the ADA’s definition of “disability”, and whether her disability necessitates an accommodation.
As it turned out in this case, the employee indeed suffered from a condition that qualified as an ADA disability and which caused her acute sensitivity to perfumes and other fragrances. C2 was able to assist the client and the employee in developing a few cost-effective accommodations to allow the employee to still perform the essential functions of her job. The client first implemented a fragrance-free policy at the office. The client had a relatively small corporate office and staff size (less than 30 employees), so implementation and enforcement was not particularly problematic. Second, the company also allowed the employee to take fresh air breaks as needed, and allowed her to participate in large group meetings by telephone. The client was also able to identify a well-ventilated room in the office and designated that space as “fragrance free” so that the affected employee or others might periodically go to work. Ironically, the employee with the disability was not alone in using that room; other employees liked the concept and ultimately ended up using it as well.
B. What If This Happens to My Company?
The first step is to take all requests for workplace accommodations seriously. Employers should review all requests in good faith and have a dialogue with the employee to determine what steps, if any, the employer can reasonably take. Employers often fail to realize that no formal accommodation request is necessary. Even an informal, verbal complaint by an employee that colognes or other office smells tend to aggravate their allergies, for example, should signal employers to talk to the employee and try to determine whether an actual disability is at issue and whether the company has a legal obligation to provide a reasonable accommodation. Not every employee accommodation request is “reasonable”, and employers are not obligated to implement an employee’s “first choice” accommodation. Rather, employers need only provide an accommodation that allows the employee to perform the essential functions of her position – so long as the accommodation does not provide an “undue hardship” on the business.
C. Fragrance Accommodation Options
Workplace fragrance intolerance is not new, but remediating smells due to employees’ disabilities is relatively novel. There is no right or wrong accommodation; and employers should feel free to craft accommodations (where necessary) that best fit their business and work space. However, some common accommodation solutions have included the following:
- Adopting a fragrance-free workplace policy;
- Re-arranging employee offices or seating arrangements;
- Moving a workstation location to a clean-air filtered area;
- Creating a fragrance-free zone in your work place or a fragrance-free break room;
- Remove scented products from the workplace such as soaps, lotions, and air-fresheners;
- Using unscented cleaning products;
- Allowing fresh-air breaks;
- Teleworking on a part-time or full-time basis; or
- Allowing an employee to teleconference for team meetings.
D. What Do I Need to Do Now?
Even if your company is not currently facing a “fragrance accommodation” issue, there are steps you can take to minimize the risk that such issues will arise in your workplace. For example, if your company does not already have one, adding a “fragrance free” policy to your employee handbook is a good first step. Often times, the offending fragrances stem from perfumes, colognes, lotions, or sprays used by your employees. To the extent you are able, ensure that all office cleaning supplies are fragrance free. And lastly, make sure your office gets consistent ventilation. Change the air filters in the HVAC unit regularly, and try periodically opening windows (although perhaps not during allergy season) to allow fresh air to circulate through the office. While there is no “one size fits all” solution, being proactive to craft solutions is always better (and easier) than having to quickly react to an unexpected issue.
C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only