What’s That Smell? Fragrance Sensitivities and the ADA

Among the conditions that may qualify as a “disability” under the Americans with Disabilities Act (ADA) and thus require the provision of job accommodation, an employee’s sensitivity to fragrances is probably not near the top of the list that comes to the mind of most employers.

But guess what? Fragrance sensitivity is real – and may qualify as a covered disability under the law.

That means employers would do well to have a plan in mind should an applicant or employee with a disability ask for a fragrance-related accommodation.

Is fragrance sensitivity a ‘disability’?

First things first: When is a sensitivity to fragrances a covered disability under the law?

The ADA’s definition of disability essentially requires a condition or impairment that substantially limits at least one major life activity, such as breathing and working.

Legions of cases have considered what it means to be “substantially limited” such that a particular condition or impairment is severe enough to meet the required threshold and cross over into protected status as a covered disability under the law. An implementing ADA regulation says the term is to be construed broadly, while adding (somewhat circularly) that an impairment is a disability “if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”

Amendments to the ADA, which took effect at the start of 2009, broadened the definition of disability, clearly making it possible, if not more probable, for the condition to qualify.

Rulings say yes

Also, courts have ruled that the condition can be a disability.

In McBride v. City of Detroit, for example, an employee asserted that her co-workers’ perfumes had a negative impact on her health. The court rejected the city’s bid to dispose of the case, finding that her condition was an ADA disability that triggered its duty to engage in the interactive process of trying to find a reasonable accommodation.

The city later settled the case, paying the employee $100,000 and amending its ADA handbook by asking employees not to use scented products at work.

Bottom line for employers covered by the statute: Fragrance sensitivity can be a covered disability. And that means employers need to be ready to deal with accommodation requests relating to it.

An employee who asks for an entirely fragrance-free environment is almost certainly asking for too much, as placing such a burden on an employer will, in the great run of cases, produce undue hardship.

But there are certainly other accommodations that may be effective without producing undue hardship for the employer.

The Job Accommodation Network (JAN) has advised that there are essentially three options to consider when an applicant or employee approaches an employer with this issue.

First, the employer can remove the offending fragrance from the workplace. In some cases, this may be a feasible alternative; in others, it may not be practical.

Consider, for example, a case where an employee is particularly sensitive to only one fragrance – and that fragrance is emitted from an air freshener or cleaning product. This is clearly a case where it is likely that a non-offending replacement to the problem product can be made without causing the employer an undue hardship.

On the other hand, an employee who is sensitive to a broader range of common fragrances that in combination permeate the workplace will have a more difficult time defeating an employer’s argument that removing all of them would impose an undue hardship.

Option two for employers, JAN says, is to separate the employee from the area where the fragrances are located. Depending on the source of the fragrance and its location as well as the particular job at hand, this may be a simple and workable solution.

Finally, employers can consider reducing the employee’s level of exposure to the offending fragrance or fragrances in an effort to mitigate their negative effects. This can be done, for example, by allowing the employee to wear a mask or respirator, JAN suggests.

HR’s Compliance Toolkit: Stay Ahead of Changing Federal and State Regulations

Other possible accommodations: Allowing the employee to take breaks to get fresh air; purchasing an air purifier; and asking other employees to reduce or eliminate their use of fragrances at work.

Decision Provides Example

In Ali v. Regan, an employee with an allergy to fragrances asked for a job accommodation. The employee said he wanted to move from a cubicle to an office and that the only accommodation he was offered was to telework on a full-time basis. He didn’t want to do that because he could not print things at home and would not be able to become a team leader or communicate adequately with others.

He sued under the Rehabilitation Act, which applies the same accommodation standard as the ADA. A district court ruled against him, but a federal appeals court reversed. The appeals court said a jury could find that the employer’s proposed accommodation was not reasonable.

Don’t dismiss fragrance-related accommodation requests out of hand. Instead, carefully evaluate whether a reasonable accommodation can be provided.