Consider this scenario:
Your employee has an extreme allergy to perfume and other scents, which is verified by a doctor. In other words– she likely has a disability covered by the Americans with Disability Act (ADA).
You know the drill — you engage in the interactive process and in an effort to accommodate her you purchase face masks for the employee, purchase a portable air cleaner for use at the employee’s work station, and distribute multiple notices to all personnel asking them to refrain from wearing perfumes, colognes, and anything scented to the office. Next, you shampoo the rugs to eliminate any odors and even relocate an employee who has to wear a medically-prescribed lotion.
Despite going to these great lengths to accommodate your employee’s illness, however, she is still impacted by lingering scents and is unable to regularly attend work. She also declines to wear the mask that you purchased for her.
Because regular attendance at work is an essential function of her job, you have no choice but to terminate her employment. To your surprise, the former employee files a disability discrimination law suit. And to your greater suprise (and likely to the surprise of your lawyers and many other lawyers reading this blog) the judge in Brady v. United Refrigeration (US District Court of the Eastern District of Pennsylvania) DENIES the company’s motion for summary judgment on these facts, and allows the former employee’s claims to go to the jury.
In this case the judge was concerned that the former employer (the company that bought the mask and portable air cleaner, prohibited theuse of perfume and cologne, shampooed the rugs and relocated other employees, all in an effort to reasonably accommodate) did not do enough. Why? Because the company ultimately fired the employee because she did not come to work, and the Court reasoned that the employee’s absences were not “unexplained” and that the irritants were “somewhat within [the company’s] power to control.” Therefore, it was reasonable that the employee would need Family Medical Leave Act (FMLA) and other leave.
If you think this decision seems incredibly unfair to the employer, I’m with you. The decision is especially confounding in light of the fact that the Third Circuit (which governs the court where this case was heard) had previously held that offering a scent-afflicted employee a mask constituted a reasonable accommodation. But it is a good reminder that even with the best facts and the law on your side, litigation is risky business. Perhaps this company is wishing it had offered a reasonable severance package to “ease the transition” in exchange for a release of claims at the time it terminated the employee? Sometimes a little money up-front gives the employer peace of mind even when the company has done nothing wrong.
Contact info: Meredith S. Campbell Co-Chair, Employment and Labor Group, Shulman Rogers [email protected] | T 301.255.0550 | F 301.230.2891