Fragrance Sensitivities Raise Bouquet of Legal Issues

When someone with a fragrance sensitivity asks for a reasonable accommodation under the Americans with Disabilities Act (ADA), an employer should take the request seriously, even if an accommodation isn’t immediately apparent.

Fragrance sensitivity runs the gamut from mild, akin to seasonal allergies, to severe, setting off acute migraine headaches or asthma attacks.

Small workplace adjustments may be all that are needed. But sometimes identifying a reasonable accommodation just isn’t workable, particularly when scented co-workers stage a revolt.

ADA Coverage

“Depending upon the underlying medical condition, an employee with a fragrance sensitivity may well have legal protections under the ADA,” said Jonathan Mook, an attorney with DiMuroGinsberg PC in Alexandria, Va.

“As a best practice, employers should seek to accommodate an employee who has fragrance sensitivity regardless of whether the symptoms rise to the level of a disability, as defined by the ADA,” added Esther Lander, an attorney with Akin Gump in Washington, D.C.

That said, David Fram, director of ADA and Equal Employment Opportunity Services for the National Employment Law Institute, told SHRM Online that if someone is allergic to many different smells in the workplace, the employer may not be required to provide a smell-free workplace. That just simply may not be reasonable. But reasonable accommodations must be determined on a case-by-case basis.

Accommodation Options

The employer should always talk with the employee with a fragrance sensitivity to try to identify a reasonable accommodation.

“The most common accommodation employees request is to ask co-workers who sit close to them to refrain from wearing any fragrance,” said Patricia Perez, an attorney with Ogletree Deakins in San Diego.

Lander noted that other accommodation options may include:

• Moving the employee’s work location to an area with a closed door and a clean-air filter.
• Creating a fragrance-free zone or floor.
• Using unscented cleaning products.
• Creating a fragrance-free bathroom or break room.
• Allowing fresh-air breaks.
• Adopting a fragrance-free workplace policy.
• Allowing the employee to phone in for meetings with a higher likelihood of exposure to fragrances.
• Allowing the employee to telework.

But like Fram, Lander noted that sometimes there is no reasonable accommodation, such as with a worker in a retail or food services environment that caters to the public.

Refusals to Comply

One of the biggest hurdles to accommodating employees with fragrant sensitivities can be co-workers who simply won’t stop wearing fragrances.

“Requiring that an entire department or work area refrain from wearing any scents can lead to people refusing to comply,” Perez noted.

“Additionally, some employees might say that many of their grooming products are scented—not only perfume, but deodorant, shampoo and conditioner, moisturizer, hair spray, as well as therapeutic products, such as Bengay or Vicks VapoRub,” she said. “An employer might be hard-pressed to enforce a no-fragrance zone if an employee continues to wear scented products.”

Moreover, Perez observed that moving the sensitive employee to an area isolated from others has been deemed by some courts as a failure to accommodate.

“Even if an employer can get an agreement from employees in a particular area to agree to be scent-free, the employee with a fragrance sensitivity might still be exposed in other ways—because of employees from other departments or members of the public who visit their area,” Perez noted. “It is often easiest to implement changes that are completely under the employer’s control, such as shutting off automatic scent dispensers, and to talk with co-workers to craft a solution that is feasible and that everyone buys into.”

If it’s just one particular fragrance that someone has a severe allergy to, the employer might well be required to get rid of that particular smell in the workplace, Fram noted. Should a co-worker continue to wear a particular fragrance that causes a health problem, the employer may discipline the co-worker for insubordination, Mook said.

“However, employers should ensure that they are applying the fragrance-free policy or requests consistently to all fragrance-wearing employees to prevent claims of disparate-treatment discrimination, such as where an employer asks only women to refrain from wearing perfume, but takes no action with regard to men who wear cologne,” Lander cautioned.

Growing Trend

“It has become increasingly common for employers to request that employees be mindful of their co-workers and not use strong fragrances in the workplace,” Mook noted. “The worst thing that an employer can do is to ignore or brush off an employee’s request that something be done in the workplace because strong fragrances or certain types of fragrances [can] trigger adverse reactions.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.