TX LEGAL EDGE

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Tips to Finding a Resolution For Scent Disabilities

Carol Keough May 20, 2013

Everyday somewhere in the United States an employee asks his employer for a reasonable accomodation under the Americans with Disabilities Act (ADA).  When the Act was amended, disabilities were more broadly interpreted to include employees who have allergic reactions including breathing and coughing problems when exposed to a variety of fragrances or other chemical scents at the workplace.  As part of our regular routine, how many of us put on a dash of cologne, aftershave or maybe just use a great smelling soap? If you go to workout you would not think of coming to the office without washing off the sweat or putting on some deoderant.  However, what may be commonplace smells to many of us such as deodorant or cologne, could send a fellow employee into a coughing spasm or asthma attack.  So just how far does an employer have to go to provide a reasonable accommodation for employees with scent disabilities?

Under the ADA an employer is expected to respond with an interactive process to an employee who may be unable to work due to a scent allergy and determine if the employer can provide a reasonable accomodation for the scent disability.  The key to a reasonable accommodation is to first determine what are the essential functions of the employee’s job.  Second, communicate with the employee to discuss what is the problem and specifically determine what the employee is asking the employer to do to accomodate the scent disability.  Third, determine what the employer can do to reasonably accomodate the employee’s scent disability, if the employee is otherwise qualified to perform the essential functions of the job.

For example consider these facts: the employee is the front desk receptionist who has an asthma attack whenever she is faced with a client or customer wearing any type of cologne or who smells of cigarette smoke.  The employee goes home and often misses work due to this scent allergy.  The employee asks the employer if she can change the location for her job or if the employer can institute a fragrance free policy for employees.  Neither of these accomodations would assist the employee in performing the essential functions of her job which is to meet and greet clients, customers and the public who come into the employer’s office.  Based on these facts, generally this employee would not be qualified for the receptionist job with or without a reasonable accomodation.  The final tip on a reasonable accomodation in this scenario is if the employer were to terminate this receptionist employee for excessive absences, there should be good written documentation to show what the employer did and why in this case because of the job itself, a reasonable accomodation was not available.

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