Are Employers Responsible for Scents and Smells in the Workplace?

pre employment screening, employee background checkThe Americans with Disabilities Act makes it unlawful for employers to discriminate against individuals with disabilities. Since the law passed in 1990, there have been a number of legal decisions to determine who is a “disabled person.” It is an employer’s duty to reasonably accommodate requests made by disabled employees to allow them to perform their job duties. This may include making a restroom accessible, or lowering a work surface so a person in a wheelchair can reach it.

In the case of people who are sensitive to chemicals and scents, how far does an employer need to go to accommodate them? A recent case in Detroit provides a clue. A city planner submitted a claim against the City of Detroit that she was allergic to a co-worker’s perfume. She won a monetary settlement ($100,000) and the City had to adopt a “no-scent” policy, where employers working near her must refrain from wearing scents: cologne, perfume, after-shave and hair products.

The city planner was not only sensitive to the smell of her co-worker’s perfume—she had difficulty breathing. Clearly, it could be argued that the inability to breathe would “substantially impair” a major life activity of the employee. Breathing can certainly be considered a “major life activity.”

The court found that the city did not make a reasonable accommodation for the city planner—there was no policy enacted, asking for restrictions on the use of perfume; there was no attempt to move the planner so she wouldn’t have to suffer the inability to breathe; and there was no attempt to have the perfume-wearer simply stop wearing perfume.

Employers don’t necessarily have to write a “no perfume policy or install expensive air filtering systems when a staff member informs them of chemical sensitivity. Making reasonable accommodations is all that is required. Employers may also ask the suffering employee for verification that the condition actually exists.

But the lesson from the City of Detroit case is clear. When a worker makes a complaint about conditions interfering with their ability to function (like breathing, for instance), the employer may be held liable for ignoring the problem. It’s certainly less costly to enact a simple policy to make the air easier for everyone to breathe than to defend your actions (or inactions) in court!

Legal disclaimer:
The contents of this article are intended for general information purposes only, and should not be relied upon as a substitute for obtaining legal advice applicable to your situation.

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