Agency Effectively Accommodated Employee with Sensitivity to Smells

By Deryn Sumner

Sometimes during EEOC Law Week and webinars, we’ll get questions about if and how agencies can accommodate employees with chemical sensitivities.  EEOC’s Office of Federal Operations recently issued an interesting decision in Martina S. v. Department of Defense, Appeal No. 0120140227 (August 19, 2016) addressing allegations that the Agency failed to effectively accommodate an employee who was sensitive to scents.  Martina, who as we know because of EEOC’s naming convention is not actually named Martina [Editor’s Note: Or, is she? Hmmm.], worked as a Security Specialist in an office in Washington, D.C. that underwent construction.  She complained that the fumes and dust made her sick and requested to be able to work in another office space, but the Agency conducted tests and determined the space was safe and denied her request because of the sensitive nature of her job.  The Agency did ask the co-workers not to spray anything in the office. Also of note, Martina did not, at the time, respond to requests for medical documentation.

However, more than a year later, Martina did provide a medical note, stating she was “intolerant of stray perfumes or scents” and submitted her own list of items she was allergic to, which included cleaning supplies, markers, and Lysol. Her supervisor stated that if Martina provided medical documentation to support this list, she would send a message to staff members.  But again, Martina did not provide medical documentation.  Fast forward two years when a co-worker sprayed Lysol on her telephone, causing Martina to leave the building.  After that incident, Martina submitted a medical note saying she was “intolerant to strong fumes and odors” and “should not be exposed to aerosols.”

After another incident involving Lysol which caused Martina to go to the hospital, she submitted a request to be moved to another office location and included a letter from her doctor stating that she suffered from “reactive airway disease.”  The Agency, in coordination with the occupational health office, determined that Martina was not disabled as she only experienced symptoms in one location, and could work there if there were no strong perfumes or Lysol. Based on that, the Agency denied the request for relocation to another office space.

Martina filed an EEO complaint alleging harassment and failure to accommodate, and after an investigation, an administrative judge granted summary judgment in the Agency’s favor.  On appeal, the Office of Federal Operations agreed.  The Commission found that the initial medical documentation Martina submitted did not show that she was an individual with a disability because it did not state that she had an impairment or how she was substantially limited in a major life activity.  However, assuming for the sake of argument that Martina did provide sufficient medical documentation, the Commission found that the Agency did accommodate her by instructing employees not to use strong smelling products and Lysol, which included posting signs about the prohibition of their use.  The Commission, noting that Martina was only entitled to an effective accommodation and not the one of her choice, assuming she was entitled to an accommodation at all, found that the Agency was not liable for the claims raised in Martina’s formal complaint.

The lessons to be learned from this case include making sure that employees with similar allergies or sensitivities provide effective documentation and considering alternate accommodations that may be effective to accommodate such medical conditions. Sumner@FELTG.com