Law: Fragrances and other odors in the workplace

Nice cologne - but must you marinate in it?

All of us have sat next to people who smell as if they've dunked themselves in perfume. As a younger lawyer, in fact, I had a judge tell my client at a noon recess to go home, shower and come back in the afternoon not wearing any perfume.

Around 60 million Americans suffer from either asthma or allergies - or both - and an estimated 50 million are allergic to nuts, perfume, pollen, dust, dander, foods, drugs, latex, insects and other items commonly found in the workplace.

There are legal consequences for employers who fail to take these health conditions seriously. For example, the city of Detroit paid more than $100,000 to settle a disability lawsuit filed by a city employee, claiming it violated the American with Disabilities Act (ADA).

She claimed an allergy to perfumes used by co-workers made it hard to breathe and work. When the city failed to give her what she saw as a reasonable accommodation under the ADA, she sued.

What is an employer to do?

First, have an odor and fragrance policy. It could be diplomatic, yet strict: 'This is a fragrance-free office. Please help us to accommodate our co-workers and clients who are chemically sensitive to fragrances and other scented products. Thank you for not wearing perfume, after shave, scented hand lotion, fragranced hair products, and/or similar products.”

Or your policy could be broader but more lenient: 'All employees must observe good habits of grooming and personal hygiene. Body odor, from any cause, should not create distractions. To accommodate sensitive individuals, employees are discouraged from wearing or applying excessive amounts of perfume, cologne, scented lotions or body washes in the workplace; using hair sprays, air freshener, or other scented products in the workplace; and eating or keeping fragrant foods or items at your desk.”

Second, be aware of the ADA - and the state law counterpart - and the interactive process requirement. Because fragrance sensitivity easily may rise to the level of a disability under the ADA, employers are faced with the challenge of accommodating such conditions.

The latest ADA amendments make it easier for employees to file disability claims for allergies and other scent-related conditions. While there are not many cases, some case law already exists that is shaping how employers must react to remain compliant.

For example, in that Detroit case, the court found that the employer may not have engaged in a proper interactive process when the employee raised the issue. Representatives of the employer allegedly stated that 'if she's allergic to perfumes and colognes then she has the problem, not the employer” and 'the problem is (employee) and her symptoms.”

Wrong approach.

In an older case from the 8th Circuit Court of Appeals, the federal district in which Iowa sits, the employee suffered from acute recurrent rhinosinusitis, a condition that can create allergic reactions and triggered by irritants such as heavy perfumes, smoke, nail polish and various adhesives.

In response to the employee's condition, his employer created a work station for him with better ventilation and prohibited the use of nail polish in the department.

The employee had frequent absences throughout his employment, and when he exhausted his vacation and sick time, the employer met with him to create a procedure to deal with any attendance problems associated with his condition. The agreed-upon process permitted the employee to sign off his phone, notify his supervisor of the potential problem and leave the area while an investigation took place and a remedy was implemented.

When the employee was fired for continued absences, the court found that - even if the employee was disabled under the ADA - the accommodations provided by the employer were in fact reasonable because they sought to avoid exposure to irritants.

The court concluded that the employer should not be required to create a wholly isolated work space for an employee that is free from all of the numerous possible irritants, nor is the employer obligated to provide an unlimited absentee policy.

The court held that the employee could not identify a reasonable accommodation that would permit him to perform his job.

Accordingly, an employer must try to prevent problems at work with proactive policies and rules. And note that not every condition is a disability.

Just because someone dislikes a co-worker's perfume or the air freshener in the restrooms doesn't mean an employee has a disability.

Finally, employees should use common-sense solutions of their own - if the offender is someone you know and feel comfortable around, ask him or her to limit the amount of scent used. Or ask your supervisor to intervene.

That may quickly solve the problem with limited hassle.