Question:

I have received several complaints from my employees about their coworkers’ use of perfume, cologne and aftershave. These individuals do not like the smell and want me to tell their coworkers not to use these products before work. I really don’t want to get involved in this, but I feel like I need to do something about the complaints I’m getting.

Answer:

Many employers feel that their employees’ use of personal fragrances like perfume, cologne and aftershave is a personal choice that is up to the individual. However, the use of such products may not only irritate other employees, but may also create legal liability for employers with regard to disability laws.

Under the Americans with Disabilities Act (ADA), an employee may be considered disabled if a workplace odor or substance causes asthma or an allergy to become severe. The ADA is the federal law that gives civil rights protections to individuals with disabilities. Those protections are akin to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA requires that employers with 15 or more employees provide equal opportunities to individuals with disabilities with regard to an array of employment practices, such as hiring, firing, advancement, job assignments, pay, benefits, and training. In addition, California’s Fair Employment and Housing Act (FEHA) provides similar protections for individuals with disabilities. The FEHA’s rules regarding discrimination apply to California employers with 5 or more employees.

In light of the ADA and FEHA protections, courts are taking issues related to odor sensitivity very seriously. A city employee in Detroit, Michigan recently won a $100,000 settlement after her employer failed to take action when she complained that a coworker’s perfume and room deodorizer made it difficult for her to breathe while at work. The employee’s severe sensitivity to fragrances and other cosmetics constituted a disability under the provisions of the ADA, and her employer’s failure to address the situation was held a failure to accommodate her disability.

In another recent case, a radio DJ won $10.6 million in a federal lawsuit in which she claimed that she was fired because she complained that she was being sickened by a coworker’s use of perfume. The employee claimed that her exposure to the perfume caused her to lose her voice and take lengthy absences from work, and that she required “heavy medication” to combat the effects of the exposure. While a jury award of this size is unusual, this case illustrates the potential for significant liability if an employee’s sensitivity to odors in the workplace is not taken seriously.

In fact, some experts believe that approximately 4 to 6% of the population suffers from Multiple Chemical Sensitivity (”MCS”), a chronic condition that causes susceptible persons to experience adverse physical reactions to chemicals and related odors. These individuals may experience nausea, headaches, blurred vision, dizziness, fatigue, impaired memory, rashes, itching, or difficulty breathing due to exposure to an irritating substance. Cleaning agents, cologne and perfume, ink, pesticides, fingernail polish, and even copier toner can be problematic for a chemically sensitive individual. While this condition and its diagnosis is somewhat controversial in the medical community, the foregoing decisions clearly show that this type of sensitivity may be considered a disability under state and federal law.

An individual has a “disability” under the law if he or she has a physical or mental impairment that substantially limits one or more defined “major life activities” such as working. If a worker is qualified to perform his or her essential job functions except for limitations caused by a disability, the employer must then determine whether the worker could perform those functions if she or he were given a reasonable workplace accommodation. Both federal and state law requires employers to engage in a “good faith interactive process” with employees in order to identify appropriate reasonable accommodations. Depending on the circumstances, reasonable accommodations for an odor/chemically sensitive disabled individual might include such things as improving workplace ventilation by using fans or other means, moving an employee’s work station, using special cleaning products that do not contain respiratory irritants, or restricting the use of colognes and perfumes by coworkers.

In an effort to avoid address this problem, some employers have adopted policies restricting the use of personal fragrances in the office. While this may be unpopular with some employees, most people can appreciate that their use of a particular fragrance or product may be irritating to their coworkers, or that it could even cause medical problems for them. If you decide to implement such a policy, you may wish to meet with your employees to explain why you are making this change so they will understand the reasons for the restrictions you have implemented, and will be respectful of your new policy.
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