WHAT IS THAT SMELL?

That can be not just an idle question, but also the first sign that employees need union help. There is a near endless source of scents in modern offices, e.g., perfumes, paint, flooring, ink, dust, furniture fabric, soaps, food, etc., and for some employees they can cause illness or even death. Here is what unions can do about offending smells.

First, unions need to familiarize themselves with the widely recognized medical condition called Multiple Chemical Sensitivity (MCS). It can trigger runny noses, watery eyes, headaches, rashes, coughing, wheezing, dizziness, asthma and other near-crippling reactions in those who cannot tolerate one or more odors.

Second, unions need to consider the many options they have for dealing with an offending scent once it arises in the office. They might be able to argue that they have a right to negotiate if the scent comes from something newly introduced into the office.  For example, if employees are placed in a position of working around a new rug as the floor glue dries or the fabric off-gases, that can be a change in working conditions.  If the change was made without advance notice, the union might be able to force management to reimburse employees for any sick leave the change caused. They might also have a grievance alleging some health and safety violation, or even a worker’s compensation claim on behalf of the sickened employee(s).

But aside from those options, there is no doubt that they have a right to request “reasonable accommodations” be immediately granted for those employees adversely effected by the smell. EEOC made that clear as far back as a 1997 case when it ordered FAA to accommodate an employee’s MCS request for a disability-related reasonable accommodation. (Ella Roberts v. Slater, Secretary, Dept. of Transportation) Roberts had an adverse reaction to another employee’s use of a certain perfume and requested accommodations which management was either slow to grant or never did. After a while, it asked employees not to wear that scent of perfume while at work, but refused to let the employee work at home or issue a policy prohibiting employees from wearing any perfume. Here is a list of what EEOC ordered the employer to do once the hearing concluded:

• · provide Roberts with an upgraded Air Purification System deemed appropriate by engineering standards and/or as deemed necessary for proper clean air standards by appropriate consultants.
• · restore any leave used and/or wages and other benefits lost due to the agency’s failure to accommodate Robert’s MCS as well as compensatory damages.
• · restore the employee to the Alternative Work Schedule Program.
• · immediately provide training to the Air Traffic Manager and Assistant Air Traffic Manager concerning their duties and obligations pursuant to the Rehabilitation Act and Title VII.

While it did not order FAA to allow the employee to work from home, a recent Federal district court case out of Ohio (Core v. Champaign County Board of County Commissioners) may have signaled that teleworking is about to become a recognized “reasonable accommodation” for MCS.

With regard to the assertion that working from home is an unreasonable accommodation as a matter of law, such blanket assertion is not necessarily supported by Sixth Circuit precedent. Certainly, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home[;]” however, the court also recognizes the possibility of exceptions to the general rule “in the unusual case where an employee can effectively perform all work-related duties at home[.]” Certainly, communications technology has advanced to such a state that the proposition of employees working from home is not quite as burdensome or untenable….Today, in this Court’s view, it may not “take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.” Nevertheless, the ultimate determination of reasonableness is a fact specific inquiry and a question for the fact-finder

FEDSMILL.com also wants draw to your attention is a 2011 EEOC decision out of the Postal Service where an employee was disciplined for repeatedly wearing perfumes that were causing coworkers to become ill. The employee claimed that was disparate treatment discrimination, but EEOC found the management order to be perfectly legitimate. (See Gilvey v. Postmaster General, EEOC No. 0120101010 (2011))  This gives the union the right to insist that management order the offending employee to avoid bringing the MCS-triggering scent to the office.

Finally, unions should get out ahead of this problem by educating its members about the MCS condition and how employees themselves often cause it with the material they bring into an office.  We cannot expect employees to seek our help to solve their problems if they are not even remotely aware that they may have rights related to the problem.