Are odor-sensitive workers protected by the Americans with Disabilities Act?
Resolving illnesses linked to chemical sensitivities can be tricky
When one worker’s choice in perfume is another worker’s trigger for an allergic reaction, does the Americans with Disabilities Act (ADA) apply?
That’s a question that comes up frequently, employment experts say, and the answer varies with each case. Fragrance-free environments have become commonplace in many hospitals, where patient sensitivities to chemicals, including perfumes, have led to bans on fragrances in patient care areas. But in other workplaces, where some employees’ sensitivity to chemicals is clashing head-on with co-workers’ use of perfumes and air fresheners, employers and occupational health professionals wonder just how far they can and should regulate personal preferences.
Irritants in many forms
According to the Job Accommodation Network (JAN), a Morgantown, WV-based program of the U.S. Department of Labor’s Office of Disability Employment Policy, there has been a steady increase over the past several years in calls related to chemical sensitivity, environmental illness, allergy, and respiratory impairments. The most prevalent issue is fragrance sensitivity.
Fragrances or irritants come from a wide variety of sources, and to make a workplace truly fragrance-free can be a major undertaking.
Perfumes and colognes are obvious sources, but others include shampoos, creams, deodorants, candles or potpourri that might be used in workspaces, and some types of garbage bags. (See Table 1.) Less frequent causes of allergic reactions are odors from foods, she says.
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Table 1. Products that may contain irritant fragrances
Source: Job Accommodation Network, U.S. Department of Labor, Washington, DC. |
Not all irritants are caused by products used by people working in the same area, according to Mandy J. Gamble, MS, MBA, human factors consultant for JAN. “Trigger reactions can be caused by chemical smells coming from the building or fumes from exhaust or ventilation systems that bring in smells from the outdoors,” she explains.
The symptoms reported by people who react to odors range from minor headaches to a constellation of health-threatening symptoms grouped into a diagnosis labeled “multiple chemical sensitivity” (MCS), whose sufferers sometimes become permanently disabled. (See Table 2.)
| Table 2. Reactions reported from sensitivity to odors or irritants
Source: Job Accommodation Network, U.S. Department of Labor, Washington, DC. |
OSHA notes at its web site that MCS “is a highly controversial issue” because there is debate as to whether it is actually a legitimate organic disease. Allergies, immune system dysfunction, neurobiological sensitization, and various psychological theories have been blamed for causing MCS, but OSHA states that there is insufficient scientific evidence to confirm a relationship between any of the proposed possible causes and symptoms.
Gamble says people with asthma are particularly susceptible; there have also been reports to JAN of people who claim they developed asthma as a result of exposure to irritants at work. Employers call JAN to find out what to do when they have employees who report sensitivity to either a material at the worksite or a fragrance that is brought in by another employee. “It’s probably one of the more challenging questions we get, because is it a disability? Do [employers] have to accommodate them [under the ADA]?” Gamble explains.
The ADA defines a disability as an illness or condition that substantially limits one or more major life activities; for a person to be defined as disabled under ADA, he or she must meet the definition of “disabled” and be qualified to do the essential functions of the job at issue.
If an employer who is governed by the ADA determines that an employee is disabled, the employer is required to provide “reasonable accommodations” to allow the employee to work, unless those accommodations pose an undue hardship on the employer. Gamble says employers who are not sure of their requirements under ADA should find out, as well as learn what their requirements are in the state where their businesses are located.
For the occupational health nurse faced with a worker who reports sensitivity to either a co-worker’s perfume or aftershave or to another environmental irritant, there is no hard-and-fast rule for eliminating the problem or making the situation more palatable, Gamble says. “Every situation is different, so it has to be handled on a case-by-case basis,” she says. “It depends on the situation, depends on the ADA.”
But before plunging into the pros and cons of mandating employee fragrance use, experts recommend taking a less heavy-handed approach — explain the situation to employees and ask them to voluntarily stop using scented products.
The Maine Department of Labor in 2004 implemented a policy on chemicals and fragrances in the workplace that seeks to educate the work force about the effects chemicals and fragrances can have on people with sensitivities, and makes going fragrance-free optional, although encouraged. “It really depends on your situation,” says Gamble, “and it depends on the ADA and case law.
“Employers wonder what they’re obligated to do. The courts indicate that an employer is not required to provide an irritant-free environment, and you can’t guarantee someone won’t be exposed,” she adds.
Maine’s Department of Labor suggests to its employees that their personal fragrances should not reach beyond 2 feet of the wearer, according to spokeswoman Michaela Loisel. The state labor department also has let customers know, through mailings and posted notices in department buildings, of the policy. Announcements for conferences and large meetings carry the following statement: “In order to accommodate people with sensitivities to fragrances, please refrain from using fragrant products at this event.”
Gamble says she advises employers that if they choose to accommodate the employee who is sensitive to odors, they can either get rid of the irritant through voluntary or, occasionally, mandatory bans, or they can create barriers between the affected employee and the irritant. This can mean moving the employee to another area, putting him or her in a workspace that has an air purification system in place, or moving the source of the offending odors.
“You just really have to look at it case by case,” she says. “There is no case law that says this is a protected population under the ADA, but can you get a claim under workers’ comp? Sure. If an employee gets ill at work, he or she can say, ‘You’re exposing me to a risk at work, and it’s making me sick.’”
She says irritant odors and mold in buildings have led to workers filing claims that they have developed MCS.
Employers are hesitant to dictate personal fragrance use, however. Gamble says she frequently gets calls from hospital administrators wondering if fragrance use is permissible in nonpatient care areas. “But where employers get the idea that there is a law saying that they can’t dictate that their employees not wear fragrances, I don’t know,” she says. “If an employer can tell you what to wear and how to wear your hair, they can indicate whether you can wear fragrances or not.”
Gamble says one approach is for employee health managers to apply the rule of “Is this necessary for your job?” She says if candles or potpourri at a work station, scented perfumes and lotions, or other odiferous products are not necessary for an employee’s job, they should perhaps be discouraged or banned. “Most people are going to understand that,” Gamble says. “If I’m causing someone to be sick, I am not going to wear that product. It’s pretty practical advice.”
Employees with sensitivity issues should be encouraged to approach managers or the occupational health nurse, rather than confronting a co-worker about his or her perfume or cologne. “At that point, the manager or nurse could elect to conduct some education of the staff and make a voluntary request of all the staff, and not make it too personal [about the one person whose perfume might be causing health problems],” Gamble suggests.
What occupational health nurses at work sites should definitely do is take the chemical-sensitive employees’ concerns seriously. “Sometimes, people have a hard time grasping it because it’s not something that you can see, and it may be a substance that causes no reaction at all in anyone else in the office,” says Gamble.
Not all solutions involve fragrance bans, she notes. JAN suggests employers consider all options, including maintaining good air quality in the workplace (cleaning filters and maintaining cooling, heating, and ventilation systems); discontinuing use of scented cleaning products used by contract or in-house housekeeping staff; and modifying the affected employee’s work schedule, including telecommuting, if possible.
For more information, contact:
- Mandy J. Gamble, MS, MBA, Human Factors Consultant, U.S. Department of Labor, Office of Disability Employment Policy, Job Accommodation Network. Phone: (800) 526-7234. E-mail: [email protected].
- Michaela Loisel, Equal Opportunity Office, Maine Department of Labor. E-mail: [email protected].
When one worker’s choice in perfume is another worker’s trigger for an allergic reaction, does the Americans with Disabilities Act apply?
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