Americans with Disabilities Act – Allergies Unlikely to Support Claim

Q:  I have been suffering severe migraine headaches and other symptoms for the last year or so.  My doctor and I have slowly figured out that it is a perfume allergy triggered by my work environment.  My sister advises me that I can demand that my employer accommodate my severe allergies as a disability under the Americans with Disabilities Act (ADA).  My husband found several articles on the Internet indicating to me that this information is correct.  However, I demanded that my employer insist on a scent-free workplace, and they have refused to do anything.  Now what should I do?  If I quit, can I still file a claim under the ADA?  Can I collect unemployment?

A:  By:  Saphronia Young

In my opinion, you do not have a claim under the Americans with Disabilities Act.  Although this federal law was amended in 2008 to make filing claims a bit easier, a claimant still must prove that the condition or disability substantially impairs a major life activity.  Several published federal cases have held that allergies do not constitute a disability.

You also need to know whether your employer would even be covered by this federal law.  This will depend upon how many employees work for the company, the dollar volume of business, and whether the company engages in interstate commerce.

However, Washington state law is more generous than federal law.  For Washington, the Washington Law Against Discrimination protects more employees in more situations than does the federal law, and more employers come within its coverage.  Additional details about your situation would be needed to analyze whether you have any basis to demand accommodation under State law.

As for quitting and receiving unemployment, there are some circumstances where an employee can still receive unemployment after quitting, but it is a gamble.  The employee must claim that the employer’s actions constituted a “constructive discharge.”  Some situations in which this has been found would be where: (a) the employer’s payroll checks were returned for insufficient funds; (b) the employer failed or refused to pay the correct prevailing wage (on public works projects) or minimum wage (for private work); (c) the employer otherwise behaved in a manner that was so unreasonable that the employee could not be expected to remain (such as severe and ongoing sexual harassment).  Failure to accommodate an employee’s sensitivity to fragrance may very well NOT meet the test.

The problem with quitting a position and hoping to have unemployment is that the employer will probably contest unemployment.  Then, an administrative hearing examiner would weigh the evidence and decide if a reasonable person would have behaved as the quitting employee did.  Many of our clients have been surprised to learn that what seemed obvious to them…that a person could not possibly work for this employer under these circumstances…was not nearly as obvious to the hearing examiner.  All “quits” should be undertaken with extreme caution, if the employee intends to rely upon unemployment during the transition to new work.

What is the solution?  Attempt to “self accommodate” the allergy by taking daily medications, ensuring that your non-work environment is allergen free, and even attempting to use a small, quiet, energy efficient air cleaner at work (you may need to obtain permission, where computers and other equipment could be impacted by additional electrical loads, however small).  There may even be some relief by using commercial sprays that eliminate odors from the air.  Again, ensure that such sprays would not adversely affect others in the office who may have asthma or other conditions.

Remember to document all conversations, emails, and communications with management that surround the issue.  Document all of your efforts through your own physician, medication, home environment, etc. to remain healthy.  Document all attempts to be the most productive employee that is possible.  Do not take company time to attempt your self-accommodation, if at all possible.  Document any accommodations that you observe being made for others, although one must be careful about assumptions based upon third-party observation.  Keep a policy of the employee policy manual, and ensure that you abide very strictly by its terms.  If the manual indicates a company attitude asserting that all efforts to ensure employee productivity, safety and comfort will be made, then you must ensure that you are complying with your obligations before then requesting your attorney to take action for the employer’s breach of such promises.

Finally, be aware that many materials found on the internet concerning legal issues are self-promotional marketing materials placed there by companies that charge law firms for advising that you “may have a claim.”

This summary is not intended to be legal advice. You should consult an attorney in regard to your particular situation.