office fragrances

Office Fragrance’s Becoming Real Issue

Office fragrance is becoming a real issue.

Asthma.

Fragrance sensitivity.

Allergies.

It may sound “rash,” but many types of fragrances in the workplace can trigger anything from breathing issues to hives to nausea to headaches — and everything in-between. These reactions can be so bad, in fact, lawsuits are being filed — and won — by suffering employees.

Case in point, in 2010 a city planner in Detroit won a substantial settlement against her employer under the Americans with Disabilities Act (ADA). In addition, this led the employer to adopt a strict “no-scent” policy office-wide.

How did it come to this?

These lawsuits typically arise because employees feel their sensitivity to fragrances disable them, and the workplace has done nothing to attempt to reasonably accommodate them.

But how do you determine if fragrance sensitivity is a disability? And how do you handle the awkward situation in the office?

First, determine if the employee(s) suffering does, in fact, have protection under the ADA.

This is a sometimes tricky situation because, according to the ADA, there is no one list of conditions protected under the act. Rather, there is a definition that a person must meet to qualify: A person has a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment, or is regarded as having such an impairment.

If the employee or employees do not specifically fall under this act, some questions you can ask internally to help determine the degree of the issue:

  • Has the employee met previously about the issue with anyone in human resources?
  • Does it appear to be a seasonal or everyday issue for the employee?
  • Is the employee showing physical or mental signs of distress based on the sensitivity?
  • Are these sensitivities limited work production?
  • Are there resources that can be made available to implement any types of accommodations?

If you determine the employee does, in fact, have a legitimate claim, there are several steps to take.

Most often, employers first look into simply moving the fragrance-sensitive employee and the employee(s) using excessive fragrance farther away from each other in the office. In other instances, employers ask their employees to voluntarily refrain from wearing or using fragrances at work. If taking this route, however, one must be crystal clear on fragrances.

For example, are scented candles allowed? And what about scented deodorants? Or lotions?

It is also important to never blame one or a few complaining employees, as that opens them up to office embarrassment and potential harassment, causing a litany of new issues in the workplace.

In some cases, one can also look into a fragrance sensitivity training session for the office to help educate everyone on the degree of stress scents may be causing co-workers.

Some additional accommodation ideas may include:

  • Testing and improving the overall air quality in the office.
  • Modifying work schedules or allowing telecommuting.
  • Providing air purification systems for sensitive employees.

In some extreme instances, the employer may have to develop a “no fragrance” policy in the office, complete with punishments for employees who continue to wear or use scents in the workplace.

The good news?

It usually doesn’t come to that.

In fact, according to the rule itself, all activities performed on behalf of the suffering employee must be reasonable to the employer as well. As such, drastic tactics that may hinder the office, such as a no fragrance policy, are often unnecessary.

The best way to handle the situation?

Sit down and listen to the employee’s issues, determine a plan of action together, document it for all parties involved, and follow up with the employee regularly.

For more information about office fragrance lawsuits, no fragrance policies and the other topics discussed in this column, call (602) 281-3406 or visit laborlawyers.com.

 

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Shayna Balch

About Shayna Balch

Shayna H. Balch is an associate at Fisher & Phillips LLP in Phoenix where she handles matters across all facets of labor and employment law, including employment discrimination, sexual harassment, retaliation, wrongful termination, restrictive covenants, preventive counseling, employee training, personnel policies and employment agreements. She is also an incoming member of the Valley of the Sun Human Resources Board of Directors in 2012 and currently serves as chairperson of the organization’s Legislative Action Committee, where she is focused on educating members about current and pending legislative changes as well as influencing the legislative process by bringing the voice of human resource professionals to lawmakers. For more information, please visit www.laborlawyers.com.