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Hi Matt,
I took the liberty to ask about your situation at a legal forum.
If someone is super-sensitive to chemicals, and everybody in their work environment is wearing cologne, burning scented candles, and making the person intolerable ill, does the employer have an obligation to accomadate the person's illness under the ADA? The employer says they can't make a rule that would interfere with other's ''personal choices''
This is the question I posted and the reply I received to it:
A: Possibly. It depends on what you are looking for as an accommodation. Accommodations must be reasonable and typically having everyone in the workplace stop wearing cologne or doing something else may not be considered reasonable. Reasonableness is sometimes difficult to judge and depends on the facts of the situation. That is why the ADA requires that the employers and employees engage in an interactive process to determine what sort of reasonable accommodation is available.
For more information about reasonable accommodation, you can visit my website, www.memphisemploymentlawyer.net, click on the link to determine what is illegal and follow the links to disability discrimination. Additionally, the EEOC website has resources that will help you to determine your course.
If you would like to discuss this issue further, I can be contacted at jbecker@memphisemploymentlawyer.net. I consult with people around the country on these types of federal law issues.
In Reply to: To Matt re: MCS posted by lisa [2032.8] on December 30, 2006 at 18:49:20:
I certainly don't think asking other people to stop wearing fragrances is unreasonable. It it more unreasonable that they continue to wear it when it's making someone else in the office sick!! It's just plain inconsiderate!! And why do they have more rights to the air? Why don't managers see the decreased productivity?
In Reply to: Re: To Matt re: MCS posted by annod [7200.1351] on December 30, 2006 at 22:46:11:
I agree.
I think what he was saying was that it has to be determined that it is affecting Matt poorly, and then it would be reasonable...as each case is different.
I don't think it would hurt a soul to go without their perfume...but it will hurt someone (Matt if they do) I don't think it's unreasonable either.
In Reply to: To Matt re: MCS posted by lisa [2032.8] on December 30, 2006 at 18:49:20:
Hi Lissa,
Would it also be considered against the ADA to promote someone who was an alcoholic and then expect them to be the emcee at the company Christmas party if it were held at a licenced pub?
In Reply to: Re: To Matt re: MCS posted by Ron [1013.3209] on December 30, 2006 at 23:02:23:
It would not be appropriate to insist an alcoholic employee go to a pub, they would have to find another emcee and could not do a thing about it if the person refused.
In Reply to: Re: To Matt re: MCS posted by lissa [2032.8] on December 30, 2006 at 22:49:01:
typically having everyone in the workplace stop wearing cologne or doing something else may not be considered reasonable.
We may not be speaking of "typical" here. It may seem unreasonable to the people who don't understand it, and it isn't affecting, but it's not really.
If I knew something I was doing was making someone sick, I'd sacrifice a scent for them...it is inconsiderate, and yes production will be affected to as you point out.
In Reply to: Re: To Matt re: MCS posted by lissa [2032.8] on December 30, 2006 at 22:49:01:
At the very least they are required to work with Matt to find a solution that works. Putting a door on his office, for instance might help, I don't know if that would work, but they aren't allowed to just brush it off.
Although it did say something about policies in that section of the website, so it's possible they could institute a no-fragrance policy.
In Reply to: To Matt re: MCS posted by lisa [2032.8] on December 30, 2006 at 18:49:20:
Thanks, Lisa.
Walt
In Reply to: To Matt re: MCS posted by lisa [2032.8] on December 30, 2006 at 18:49:20:
Thanks for this thread. I appreciate you going out of your way to help me out. At some point I might take the legal route with this, but at the moment I am honestly too scared to.
Being 24, with this as my first job, etc, I am afraid of not only losing my income, but sacrificing my employability for the future if this becomes a shit-storm, so to speak.
But if all other avenues fail, it's good to know that I can give this a try.
In Reply to: Re: To Matt re: MCS posted by Matt [7671.3211] on December 31, 2006 at 15:44:30:
Hi Matt,
I understand. But your employer may not know what the law requires he do in such a situation as yours, with it not being a typical disability type thing. It doesn't have to come across as "you have to do this, the law says so" type thing.
The purpose of the law is so that you will be able to work while disabled.
In Reply to: Re: To Matt re: MCS posted by lissa [2032.8] on December 31, 2006 at 16:00:39:
Or the purpose is for you to have the same opportunities available to you as any other person, and not have to say I can't work here or there or anywhere because it will make me sick.
In Reply to: Re: To Matt re: MCS posted by Matt [7671.3211] on December 31, 2006 at 15:44:30:
I'd contact a disability attorney just to see what your rights are, Matt. They can't fire you for a disability; that would be discrimination.
In Reply to: Re: To Matt re: MCS posted by lissa [2032.8] on December 31, 2006 at 16:00:39:
Regardless of intentions, once an employee brings up the subject of regualtions/law with the employer, things change and the employer begins to try and defend and protect itself. At that point, they are likely to dig in to their current position and even less likely to accomodate Matt. They may not be able to fire him for disability, but if they want him gone, they can always find something else. Matt's got this right, use as a last resort. He has a better chance of accommodation by just trying to convince his employers to help him.
In Reply to: Re: To Matt re: MCS posted by Pat [3894.3210] on December 31, 2006 at 17:35:59:
Hi Pat,
What do you think the law would think of someone who presumably is a good employee,but has certain needs that have to be met in order to continue working, bringing it to their employer's attention that they have this need and (Doctors reports are essential here to back it up) and all of a sudden finding themselves with no job?
not a good thing at all, many attorneys would fight for this, if it came down to that and he'd be compensated.
In Reply to: Re: To Matt re: MCS posted by Pat [3894.3210] on December 31, 2006 at 17:35:59:
I think in some cases it's better to nip it in the bud before the situation can't be controlled anymore.
I'm not talking about threatening with anything, just exercizing rights the law has given him. He may have to tell the employer it's a disability for the employer to think it's a disability and do the appropriate thing, but first he needs to get a doctor to say it's debilitating and make limitation suggestions in writing.
In Reply to: To Matt re: MCS posted by lisa [2032.8] on December 30, 2006 at 18:49:20:
An interesting website. And you can get free "ban perfume" buttons.
In Reply to: Re: To Matt re: MCS posted by annod [7200.1351] on December 31, 2006 at 22:49:25:
Oops here is the link I forgot in my last listing.
http://www.users.globalnet.co.uk/~aair/perfume_corr.htm
In Reply to: Re: To Matt re: MCS posted by annod [7200.1351] on December 31, 2006 at 22:51:09:
LOL. I thought you went to the memphisattorney website and found this button......didn't make any sense, but now I get it.
In Reply to: Re: To Matt re: MCS posted by lissa [2032.8] on December 31, 2006 at 16:10:10:
I think what Pat's trying to say (and I agree with her to a degree) is that as soon as a disability is brought up, an employer might start looking for legal reasons to get rod of that employee. They might start to scrutinize on little things that they wouldn't normally have cared about...anything to get the problem out of the office legally. I worry about this.
In Reply to: To Matt re: MCS posted by lisa [2032.8] on December 30, 2006 at 18:49:20:
Your legal right in the workplace to end perfume use
A.K. (USA) writes: (25 Nov 1999)
" Though you are adverse to being labeled as one with a disability, all of us are actually protected by the Americans with Disabilities Act of 1992. "Breathing is a 'major life activity' as defined by the ADA. Fragrance bans meet the 'reasonable accomodation' clause of the ADA, since elimination and substitution are not expensive." This quote is from the website: http://members.tripod.com/~Enviroknow/Perfume.html.
You have the legal right to ask your employer to require that your co-worker stop wearing scent entirely. Your employer has the legal duty to do so. Your coworker does not have the right to wear perfume if it harms your health, any more than s/he has the right to smoke in the workplace. In a nice and firm manner, inform your employer that your right to breathe supersedes your coworker's cosmetic pleasure (i.e. slavery to advertising), legally and morally. "
In Reply to: Re: To Matt re: MCS posted by Matt [7671.3211] on December 31, 2006 at 23:21:51:
I understand what Pat was saying, but I don't agree. If your employer doesn't know that it's a disability the employer doesn't know how to treat it.
Most employers wouldn't risk a discrimination suit, and most are willing to accomodate people with disabilities temporary or permanent, but if they don't know they should they wouldn't.
For example when my bf couldn't do his regular job due to a hernia he was moved to another position for a while.
In Reply to: Re: To Matt re: MCS posted by lissa [2032.8] on December 31, 2006 at 22:52:47:
This is the site where I download "ban perfume" buttons.
http://www.ourlittleplace.com/buttons.html
I wear them to work--I'm sure most people think I'm crazy. I continue
to dialogue w/ my boss and he seems receptive. He does ask people
not to wear perfume, but most do anyway. I don't think anybody really
takes my disability seriously.
Lu
In Reply to: Re: To Matt re: MCS posted by lissa [2032.8] on December 31, 2006 at 20:10:10:
I guess my point is, once you take this to the law, Matt's goal pretty much has to change. At worst, his employers fire him and, at best, his working environment becomes much more challenged than it is now. If his goal now is to keep his job (which it sounds like he enjoys), then pursuing legal means will NOT achieve it. It "may" in the end save his job, but at the cost of a healthy working environment and the respect of some of his peers. I'm not even sure the courts could or would force the company to re-hire him, they'd probably just give him a financial settlement, and that only after a fight.
Bottom-line is his services will likely become un-wanted by his employer once legal avenues are pursued and that's never a good thing, regardless of the circumstance. To answer your question, yes the courts probably would favor Matt and yes, a financial compensation is very possible, but he won't be any better off. That's why I originally stated legal avenues as a last resort, the very last resort.
In Reply to: Re: To Matt re: MCS posted by Pat [3894.3210] on January 01, 2007 at 11:32:08:
O.K. If there is another option I'm all for it, this can be used as a last resort, I don't see an alternative and it may just prolong the suffering to wait, he has to approach them about something whether it's this or something else...he already has tried just asking.
In Reply to: Re: To Matt re: MCS posted by Lu [2211.2791] on January 01, 2007 at 03:19:57:
Start presenting your employer any of your medical bills related to it, and they'll start taking it seriously.
In Reply to: Re: To Matt re: MCS posted by Matt [7671.3211] on December 31, 2006 at 23:21:51:
Matt,
Actually, I'm not a her, I'm a him. It may not even be that obvious (looking for reasons for dismissal), you simply just get labeled a problem employee and things that normally get ignored become noticeable as problems. They may not consciously look for things, they just kindof notice them now that your a "problem".
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