Workplace Odors (Perfumes, Body Odor, Etc.) Another Landmine For Employers!
Workplace odors continue to be burdensome. Employees complain that a co-workers perfume, cologne or body odor is too strong thereby creating an uncomfortable working environment and placing employers in a dilemma as to their possible options. Well, a recent case may shed some light on one possible solution.
“Japanese Cherry Blossom” sounds like a lovely perfume. But one employer’s refusal to provide a “fragrance-free” workplace from that scent caused a major disability issue that landed an employer in court. Here are the facts. The employee suffered from asthma and a severe chemical sensitivity to certain perfumes and other scented products. When one of the employee’s co-worker began wearing a “Japanese Cherry Blossom” perfume. The impacted employee complained to her manager. The only problem: Her complaint wasn’t addressed. Her issues with the scent became so severe that she eventually had to have emergency medical treatment and when things went from bad to worse. Following her medical emergency, her co-workers began mocking her chemical sensitivity on Facebook. Those staffers also continued to wear the perfume on purpose, knowing it would have an adverse effect on her. A note from a nurse practitioner eventually convinced the company to email staff asking them not to approach the employee personally. They were asked to only communicate with her via phone or email however, the employee eventually was forced to take leave because her symptoms continued to worsen.
The employee asked to work from home as an accommodation, but her company said no. The firm eventually agreed to ask staff not to wear the Japanese Cherry Blossom perfume, but the employee said that wasn’t enough –she wanted every staff member to be prohibited from wearing any scent near her. The company said no. So the employee sued, alleging that the company failed to accommodate her request for a fragrance-free workplace.
The company asked the court to throw the case out. First, it said it was impossible to provide the employee with a fragrance-free workplace — her job required that she interact with members of the public. Second, the firm argued that it had already accommodated the employee’s disability by requesting that employees not wear the Japanese Cherry Blossom perfume. But the court ruled in the employee’s favor.
Here’s the kicker. Since the employee had worked with customers, the court said the company was right that it couldn’t provide a completely fragrance-free workplace. But it did say doing so would “at least minimize and limit the employee’s exposure to perfumes.” And the court found that the employee’s “no-fragrances” request might actually be reasonable — especially because of the employee’s co-workers’ behavior and the lack of disciplinary action taken by the company.
The case has a number of important takeaways for both accommodation and telecommuting requests. Employers need to consider that just because an accommodation would be unpopular with staff doesn’t mean it’s unreasonable. Second, the court punished the company for failing to take action sooner in stopping the harassment. But most importantly, the court went out of its way to note that telecommuting-as-reasonable-accommodation requests will be looked at differently than they have in the past. This is perhaps unsurprising — the court notes that technology has changed a lot since one of the first work-from-home accommodation requests was examined in court in 1995.
Employers may want to consider the following steps to be ready in case a staffer requests to work from home as an accommodation for a disability:
1. Prepare job descriptions detailing the need for time spent in the office;
2. Research the costs of maintaining a telecommuting program;
3. Engage in an interactive dialogue with disabled staff and come to agreement on alternatives;
4. Address all complaints immediately and;
5. Take disciplinary action against those who seek to create a hostile work environment.