The employee worked in a large, open-space area surrounded by dozens of other employees when she developed allergies to spicy foods, e.g. pepper, Szechuan peppercorn, ginger, especially those made with oils. She brought in a MD’s note outlining the need for her to avoid contact with those contaminants lest she develop immediate problems swallowing and breathing as well as shock. Management responded by asking the employee’s fellow team members to eat pungent foods in a separate area away from the team workspace and that spicy food products had to be kept in air-tight, covered containers in the workspace. However, as time progressed, management stopped enforcing that request and refused to even inform employees of the issue—leaving it to the allergic employee to do so.  Moreover, it took no action when co-workers ignored the problem. All this earned her the nickname “allergy lady” and the agency an EEO complaint, which could have been just as easily raised as a grievance.

EEOC found this agency behavior amounted to “…discriminatory harassment based on management’s failure to enact and enforce a policy that prohibited at least foods with pungent smell from the workspace shared with Complainant. The prohibited area could have been distinguished in a manner that did not identify Complainant. However, with the Agency instructing Complainant to inform her coworkers of her allergy restrictions rather than management issuing a general policy, it does not appear medical confidentiality was of concern for the Agency.”

Aside from giving the employee $75,000 in compensatory damages and over $25,000 in attorney fees, the Commission ordered the agency to “issue a new written policy or amend a current relevant policy which explicitly states that allergies to food or other odors may constitute a disability under the Rehabilitation Act. The policy is to contain specific safeguards for employees with such allergies. The policy is to contain specific, pro-active, enforcement mechanisms regarding those safeguards. The policy will require that the Agency engage in an interactive process to determine the nature of the allergy and reasonable accommodation for the employee.”

Unions would be wise to find out if there are workplace allergy problems in their unit and propose that the agency take the same kind of education, policy and enforcement steps.  It would be a great use of the union’s right to initiate bargaining over a matter during the life of a term agreement.  For more details on the case check out Rebecca L., v. Janet L. Yellen, Sec’t’y, Dep’t. of the Treasury, EEOC No. 2021001759 (2021)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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