Use Common “Scents” on Valentine’s Day, or, Why Don’t You Send Me Flowers Anymore
All employers should be well aware of the dangers of expressing amorous feelings in the workplace and Valentine’s Day is no exception. However, the dangers don’t end there. Many employees receive flowers on this holiday – trust your lawyer to find something negative about some colorful flowers to brighten your workplace.
A scent allergy can constitute a disability under the ADA and MHRA if it results in an impairment which substantially limits one or more major life activities (or, under the MHRA, significantly impairs physical or mental health). Major life activities include things like breathing, concentrating, thinking, and working.
If the allergy meets the definition of a disability and if it interferes with an employee’s ability to do his/her job, or breathe, or concentrate, etc., an employer will likely have to engage in the interactive process to determine if a reasonable accommodation exists.
As with any other potential need for reasonable accommodation, an employer should follow several initial steps, including assessing the physical or mental limitations the employee reports and any effect on job performance; engaging in the interactive process as to any particular accommodations requested; determining whether the proposed accommodations are reasonable or, if they are not, determining whether there are other accommodations that would be equally as effective.
With regard to allergies in particular, the Job Accommodation Network has offered some suggestions. Short of a total ban on all scents in the workplace, which may be nearly impossible to enforce and is likely not reasonable, JAN suggests attempting to create a voluntary fragrance-free workplace with education offered to employees. Beyond that, examples of reasonable accommodations may include allowing the complaining employee to work from home, relocation of the employee’s office/work space, installing air filters or air purification systems, allowing “fresh air” breaks, or allowing paid or unpaid leave. No proposed accommodation should be retaliatory or give the impression of retaliation.
In the case of flowers delivered to the workplace, if there are one or more employees with an expressed scent allergy, an employer should consider a total ban since that is within their control. Short of that, the employer might find other creative solutions such as (gasp) plastic flowers only.
Happy Valentines’ Day!
Anne-Marie Storey | Partner
The Graham Building | 84 Harlow Street
P.O. Box 1401 | Bangor, Maine 04402-1401
tel: 207.947.4501 | fax: 207.941.9715