An employee is sensitive to strong scents and has complained about a few co-workers’ fragrances. What’s the best way to address this?
Quick Answer
If an employee’s sensitivity to fragrances qualifies as a disability under the Americans with Disabilities Act, covered employers must engage in an interactive process to determine whether a reasonable accommodation is feasible. Even if it does not, the employer should explore the possibility of either removing the fragrance or reducing the employee’s exposure to it, such as by moving them to another area or improving ventilation.
Legal Perspective
Thompson Coburn LLC.
Los Angeles, California
Chemical sensitivity and reactions to fragrances can constitute a disability under the Americans With Disabilities Act (ADA) if exposure to fragrances interferes with one or more major life activities, explains employment law attorney John Viola. In such cases, employers are required to engage in the interactive process with the employee to reasonably accommodate the employee’s sensitivity.
Employers, however, are not required to totally ban fragrances from the workplace. And, of course, there may be fragrances that are unique to the workplace or over which the employer has no control. Some employers have elected to implement a voluntary, fragrance-free policy that asks employees not to wear fragrances. Such a policy, of course, can be difficult to enforce and may result in complaints from employees. In addition, such a policy would not affect environmental factors, manufacturing processes that result produce odors, or non-employees wearing fragrances.
What’s an employer to do? If you have an employee with fragrance sensitivity, you can remove the fragrance from the workplace by instituting a voluntary ban on fragrances. Employers also can create “scent-free” areas in the workplace, use unscented cleaning products (if feasible), and, of course, if all else fails, simply relocate the employee to another location in the workplace that is free of fragrance, such as a private office, provide a mask or respirator, or allow the employee to work remotely.
Relevant Case Law
McBride v. City of Detroit
Kaufmann v. GMAC Mortgage Corp.
Davis v. Utah State Tax Commission
HR Insight
Westside Family Healthcare
Wilmington, Delaware
Sensitivity to strong scents may be considered an allergy, says HR Director Aggie Flores. Allergies can be a serious health concern depending on the severity of that allergy.
We had an individual who was allergic to any scent to the point of hives and difficulty breathing, and having to vacate the area. Without letting anyone know who the individual was, we had to let employees know there was a scent sensitivity and required them to be very cognizant of everything they use, including lotions, deodorant, and even the substance they use to clean their workspace.
While the employees may be able to figure out who the sensitive person could be, I have also found that employees with strong sensitivity will generally warn their co-workers for their own safety.
L&R Human Resource Consulting LLC
Bossier City, Louisiana
The best way to address an employee’s sensitivity to strong scents and fragrances is to simply ask employees not to wear the scents to the office, says HR Consultant Mary Webber. Without offending the individual, politely let them know that their fragrance has triggered someone’s allergies and ask them to refrain from wearing the scents/fragrances to the office.
The Hicksville Bank
Hicksville, Ohio
First, I’d talk to the employee who has the sensitivity to seek her opinion on the ideal solution, says HR Generalist Carley DeLong. Since she’s most familiar with her sensitivity, she may have a great suggestion to resolve the issue. For example, she may suggest that there would be a better office space for her that is more isolated from other employees. Listen to her suggestions, and ask if any immediate accommodations would help her. If needed, we may talk to other employees to kindly ask them to refrain from using strong perfumes or cologne.
The Cost of Noncompliance
Fragrance sensitivity: City employer pays $100K to settle ADA dispute
Who was involved: The City of Detroit and an employee who filed an ADA lawsuit based on her alleged sensitivity to fragrances.
What happened: The woman said she had a chemical sensitivity and was bothered by a co-worker’s use of perfume and air fresheners. Specifically, she alleged the scents affected her breathing and caused her to suffer migraines, nausea and coughing. She further asserted that the symptoms she suffered made it difficult for her to do her job. The woman’s lawsuit claimed her supervisor failed to engage in the interactive process to find a reasonable accommodation that would enable her to do her job.
Result: The employer paid $100,000 to settle the woman’s suit. It also implemented a policy turning the woman’s office building – as well as two other buildings she often uses – into fragrance-free workspaces.
Info: Stink Over Perfume at Detroit Workplace, 3/16/10.
Jury finds company retaliated against worker who filed EEOC complaint
Who was involved: Infinity Broadcasting Corp. d/b/a WYCD-FM, a media company in Detroit, and a deejay with fragrance sensitivities.
What happened: The deejay asserted that the company retaliated against her after she complained that perfume worn by a co-worker made her ill and filed an EEOC complaint.
Result: A jury awarded the employee $1.5 million for past and future lost income, $2 million for mental anguish and $7 million in punitive damages. A court later reduced the award to $1.25 million, plus attorneys' fees.
Info: Jury verdict in Weber v. Infinity Broadcasting Corporation, Inc., 5/25/05.
Employee with allergies faces workplace retaliation: Jury awards $3M
Who was involved: The California Department of Transportation (Caltrans) and a state employee with fragrance sensitivities in Nevada County.
What happened: The worker claimed his supervisors ignored his allergies and subjected him to chemicals and fragrances despite having documentation outlining his medical condition. He further alleged that when he filed internal complaints, his supervisors retaliated by moving him to different parts of his building, at one point putting his cubicle in the office lobby.
Result: He sued the state, and a jury awarded $3 million to the worker.
Info: Caltrans Worker Gets $3 Million After Supervisors Ignore His Allergies, 5/18/17.
Key Takeaways
- Employees with a strong sensitivity to fragrances may be entitled to job accommodation under the Americans with Disabilities Act. The question is whether the sensitivity is a condition or impairment that substantially limits a major life activity.
- Depending on the source, it may be feasible to simply remove or replace the offending fragrance. For example, there may be a simple and easy substitute for a cleaning product that is causing the issue, whereas it is much less feasible to seek to entirely remove all foreign offending fragrances if they are commonly encountered in the workplace.
- Employers should consider whether it is feasible to relocate the employee to a location where the fragrance is not present.
- If it is not feasible to remove the fragrance or relocate the employee, employers can also consider whether it can reduce the employee’s level of exposure in their current location, such as by providing an air purifier or implementing other changes relating to ventilation.
- Allowing affected employees to take more frequent breaks to get fresh air and permitting affected employees to telework are other potential accommodations.