Spring is beginning to bloom and for many of us this means taking time to stop and smell the flowers. However, those delightful smells of spring can trigger annoying and sometimes painful physical reactions for many who suffer from asthma and allergies. The fresh (almost) spring air reminds us here at HR Legalist that many people may face similar physical reactions throughout the year due to sensitivities to chemicals in their work environments.
Multi-Chemical Sensitivity and Environmental Illnesses (“MCS/EI”), like allergies, impact an affected person’s ability to tolerate an environment that has been tainted by allergens or chemicals. For people who suffer from MCS/EI, reactions can be triggered by breathing the chemical or through direct contact with skin. The manner in which a person manifests a reaction is as varied as its potential causes. A particular fragrance or chemical may cause some people to have difficulty breathing, while others may get migraine headaches. Also, the severity of an individual’s reaction to a chemical can differ. The same person may have nausea the first time he encounters a triggering chemical but a subsequent encounter may cause an asthma attack. Given the unpredictable nature of MCS/EI reactions and their causes, it can be very difficult for employers to manage MCS/EI issues when they surface. This blog entry provides employers with tips for handling such issues in compliance with the requirements of the Americans with Disabilities Act (“ADA”).
Are MCC/EI Covered Disabilities Under the ADA?
Some employees with MCS/EI may be considered disabled under the ADA, while others may not be. The critical question is whether the specific individuals’ MCS/EI substantially limits one or more of their major life activities. Although this is determined on a case-by-case basis, the EEOC recognizes the following as major life activities: breathing, concentrating, seeing, performing manual tasks, and interruption of skin function. To determine whether an employee is substantially limited by MCS/EI, the employer should individually assess the employee’s limitations as compared to most people in the general population. This assessment does not usually require any scientific or medical knowledge and should not take into consideration whether medication might help the sufferer.
What Should Employers Do When Asked for an Accommodation for MCS/EI?
Because MCS/EI may not necessarily be an obvious disability, an employer may only know of its existence once the employee brings it to the employer’s attention. Once an employee reveals that she or he may need a workplace accommodation due to MCS/EI, the employer must then engage the employee in what is commonly referred to as the interactive process. As part of this process, the employer should meet with the employee to discuss what types of irritants are known to trigger a reaction, what that reaction is, and how it affects the employee’s ability to do his or her job. During this meeting, the employer should also ask what accommodations, if any, it can provide to enable the employee to perform the essential functions of his or her job.
The employer may also ask the employee to provide reasonable documentation from an appropriate health care professional to support the employee’s need for the requested accommodation. When making the request for medical documentation, the employer must be careful to request only information related to the MCS/EI that is needed to verify the disability and to determine an accommodation that is reasonable and meets the employee’s needs. The employer should not ask for a specific diagnosis but may ask for documentation that describes: trigger(s) for a reaction; the nature, severity, and duration of the reaction when the sensitivity is triggered; what activities are limited by the impairment; the extent to which the sensitivity impacts the employee’s ability to perform those activities; whether the impairment is permanent or temporary; and, whether there are mitigating measures that can be taken to reduce the limitation.
Must Employee Requests Be Strictly Honored?
Employers are required to provide reasonable accommodations, but need not grant the specific accommodations requested by a disabled employee. If an employee’s requested accommodation would impose an undue hardship on the business, the employer may deny that particular accommodation and suggest another potential accommodation. Requested accommodations that require significant financial commitment, would fundamentally alter the nature or operation of the business, or are unduly extensive, substantial, or disruptive will satisfy the undue hardship exception. Whether a particular accommodation would impose an undue hardship on the employer must be assessed on a case-by-case basis. If an employer denies an employee’s request for a specific accommodation because it would impose an undue hardship, it should be prepared to provide alternative accommodations for the employee’s consideration.
What are Reasonable Accommodations for MCS/EI?
In past decisions, some courts have found that the following can be reasonable accommodations for a person with a chemical sensitivity:
Moving the employee’s workstation away from the problem scent or chemical;
- Providing better ventilation, air purifiers / filters or a fan at the employee’s workstation;
- Allowing the employee to take fresh air breaks;
- Providing the employee with a mask or respirator;
- Educating employees about fragrance sensitivities;
- Adopting a voluntary fragrance-free policy or designating certain work areas as fragrance-free; and
- Banning certain proven triggering fragrances or scents.
Generally, courts have not required employers to provide a mandatory fragrance-free work environment. However, each case is decided based on its unique facts. The same accommodation will not be reasonable for every person with MCS/EI. Because every situation is different, employers faced with employee requests for accommodation should seek the advice of an experienced employment attorney.
Terri Gillespie is an attorney and partner in the Labor Relations and Employment Department at Obermayer Rebmann Maxwell & Hippel LLP. Terri exclusively represents employers in employment litigation matters and counsels employers in all aspects of employee relations. She can be reached at 215.665.3271 or Terri.Gillespie@obermayer.com
Thomas T. Hearn is an attorney in the Labor Relations and Employment Law Department at Obermayer where he concentrates his practice in labor and management relations, employment discrimination and employee contracts. He can be reached at 215.665.3013 or Thomas.Hearn@obermayer.com.
Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or firstname.lastname@example.org.
Tara Dickson also contributed to this article.