Practice Areas

Scent Issues at Work

June 2014

By: Nancy E. Joerg

FRAGRANCE ISSUES IN THE WORKPLACE: With millions of Americans suffering from either asthma or allergies, it's no wonder that employers are fielding more requests from employees for perfume and scent workplace policies.

Unfortunately, once an employee has developed a fragrance type irritation, it is likely that the employee's sensitivity will grow over time and with repeated exposure to the fragrance in the workplace.

Physical reactions to fragrances in the workplace may include such problems as: difficulty breathing; asthma attacks or asthma-like symptoms; contact dermatitis (an itchy and inflamed skin rash); hives; nausea; dizziness; and headache.

Naturally, employers want to minimize the risk of employees having physical reactions to fragrances in the workplace. Employers should consider that fragrance sensitivity may rise to the level of a disability under the law.

HOW DO EMPLOYERS ACCOMMODATE SCENT ALLERGIES AND REACTIONS? If allergies and sensitivity to odors are in fact disabilities, the issue becomes whether an employer can reasonably accommodate an employee with a scent allergy.

The Americans with Disabilities Act ("ADA") provides that reasonable accommodations may include "job restructuring, part-time or modified work schedules, reassignment to a vacant position... and training materials or policies." However, an accommodation isn't reasonable if it imposes undue financial or administrative burdens on the employer or requires a fundamental alteration to the nature of the job.

Recently, the Third Circuit Court of Appeals in Pennsylvania determined that an employer reasonably accommodated an employee's disability of being allergic to various scents by instituting a perfume-free workplace policy, providing the employee with a fan and a new air filter, and changing old air filters throughout the workplace.

When faced with employees claiming sensitivity to odors, employers should remember to engage in "the interactive process" (and document the process in writing). Employers should discuss the problem with the complaining employee and brainstorm with the employee about possible solutions. Take detailed notes of these discussions.

EDUCATE THE ENTIRE WORKFORCE: Don't just focus on one or two employees wearing scent. They may be insulted. It is better to educate the entire workforce about problems with odors and scents in the workplace. Educating the group as a whole makes the employer's requests sound less like personal attacks on just one or two employees. Employers should only pull employees aside when necessary, after they have made the scent policy clear to everyone.

WORKPLACE ACCOMMODATION IDEAS: There are many effective workplace accommodation ideas (and most cost little or no money to the employer): maintain good indoor air quality; discontinue the use of fragranced products; use only unscented cleaning products; provide scent-free meeting rooms and restrooms; modify workstation location; work from home; modify the work schedule; allow for fresh air breaks; provide an air purification system; modify communication methods; and modify or create a fragrance-free workplace policy.

THE BOTTOM LINE: Do not ignore complaints from employees about scents in the workplace.

Questions? Call Attorney Nancy E. Joerg of Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com. For free samples of fragrance-free workplace policies, contact Legal Assistant Tammy Nelson at 630-377-1554 or via email at tanelson@wesselssherman.com.