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What’s That Smell? What’s That Smell?

What’s That Smell?

We’ve all been there—you walk into an elevator or walk by a coworker, and all you can smell is the person’s cologne or perfume. Or you walk into a room with a diffuser or plug-in that is intentionally trying to flush ‘good’ fragrance into a room. How about perfumed toiletries, air fresheners, soaps and cleaning products that infiltrate the workplace? It is inconvenient, a nuisance. 
Are there health effects of fragrance chemicals? Certainly, with the public’s awareness on chemicals and health, it’s not surprising that attention and concern are moving toward fragrance chemicals.
But what if it is more than focused attention? What if employees say a fragrance impacts their asthma or flares up their allergies? Does an employer have a legal obligation to accommodate an employee who claims fragrance sensitivity? The answer might be yes.  
Allergies or sensitivity to fragrance chemicals can be a disability under the American with Disabilities Act (ADA). Fragrance chemicals can interfere with the major life activity of breathing and cause migraine headaches or skin reactions. The city of Detroit, for example, faced such an issue, when the city’s human resources refused an employee’s request for an accommodation without engaging in any interactive process. The employee successfully won her legal challenge based on the employer’s utter failure to engage in any discussion or process to determine if a reasonable accommodation existed.
So what is required when an employee informs you of a medical condition relating to fragrance chemicals? Learn more, talk to the employee, consider the employee’s request on how to solve it, consider whether reasonable accommodations exist and be creative in your problem-solving.  This is the interactive process. And it is a case-by-case inquiry. 
Of course, this is complicated by the fact that an accommodation solution might affect others in the work environment besides the person requesting the accommodation. Let’s say two coworkers share neighboring cubes, and one’s perfume or desktop diffuser negatively impacts the other’s allergies. You can move the physical locations of coworkers, ask the perfume-wearer to stop wearing perfume, prohibit the diffuser, alter work schedules, create a fragrance-free zone or floor, allow fresh air breaks, establish optional calling in to meetings with many employees or permit remote working.
Broader considerations include the implementation of a fragrance policy or notice requesting that all employees refrain from wearing or using scented products at work. Another consideration is to limit the use of fragrance IN the workplace—such as to prohibit the use of diffusers, plug-ins, scented candles and aerosol sprays. This is not the same as a 100% fragrance-free environment, which would be nearly impossible to enforce. Implementing such a policy should be consistent with the development and roll-out of any other employer policy and can be included in the employee handbook.
In conclusion, if an employee raises such an issue, take it seriously, inquire and discuss options with the employee. Alternatively, consider implementing a fragrance-free policy now which could start with the elimination of fragrance such as diffusers or plug-ins without yet addressing personal use of fragrance. If you would like to discuss this or similar issues, please contact Catherine Strauss, a partner in Ice Miller’s Labor and Employment practice.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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