Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As most employers are aware, or should be aware, the indoor air quality at the workplace and its health effects on employees can lead to potential liability under several laws:
• Workers’ compensation for employee illness;
• Occupational Safety and Health Administration (OSHA) citations; and
• Employment law claims, including Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).
In a recent jury trial in federal court in Detroit, MI, an employer was found liable by a jury for $10.6 million because of alleged failure to accommodate an employee’s allergies to a co-employee’s perfume and other indoor air conditions.
The plaintiff, who claimed to be a country music personality, worked as a disc jockey for radio station WYCD, owned by Infinity Broadcasting Corporation. According to the employee, she developed a severe allergy to certain chemicals, including fragrances and perfumes, which caused her to experience breathing difficulties and laryngitis after a claimed spill of toxic chemicals. As typically happens, the employer disputed these assertions, claiming that there was no toxic spill, rather she was exposed to acetone in manicures and pedicures given during one morning show. Other than this exposure, the employer indicated that the only exposure in the studio was to Glade air freshener.
Alleged Failure to Accommodate
The employee alleged violations of the ADA, contending that she had a “disability” related to her difficulty in breathing and that the employer failed to “accommodate her disabil-ity” by eliminating her potential exposure to the perfume worn by another radio announcer at the station. She requested that the other employee either stay away from her or that she not report to the station prior to her shift so that there would be no opportunity for exposure.
The employee claimed that the radio station repeatedly refused her requests for these accommodations and that she had numerous allergic reactions requiring her to take FMLA leaves of absence from work due to illnesses and that she filed a workers’ compensation claim.
In defense, the employer claimed that it had required the co-employee to stop wearing perfume and had modified working schedules so the two employees would not come in contact. Eventually, the employer obtained an opinion from a physician indicating that no accommodation was necessary and when the employee failed to show up for work on a weekend, she was fired.
The jury considered a variety of employment law claims, but decided that the employer had discriminated under the ADA and that the ADA violations were committed with malice or ruthless indifference, resulting in the multi-million dollar verdict. It should be noted that the Civil Rights Act of 1991 sets caps on awards against large employers under the Civil Rights Act and the ADA at $300,000.
Respiratory Illness
According to various studies, there is an increase in respiratory illnesses, including work-related asthma. In addition, many employees may have pre-existing respiratory illnesses which may be aggravated at the workplace by exposure to a variety of substances, including cleaning agents, organic materials in paints, carpeting adhesives, vapors or fumes resulting from manufacturing processes, welding, cutting oils, and combustion by-products from mechanized equipment such as forklifts.
Since, under OSHA, every employer is responsible for providing a “healthy” workplace, free of recognized hazards to an employee’s health, it is necessary to do a “hazard assessment” to determine if respiratory hazards exist. If so, the employer may be required to adopt engineering controls (ventilation), work practices (job rotation to reduce total exposure), or utilize personal protective equipment (respirators). A qualified industrial hygienist should conduct air monitoring. The hygienist’s exposure monitoring records must be maintained by the employer for the length of the employee’s employment, plus 30 years. Once the hygienist’s monitoring is reviewed, the employer is required to take appropriate action to address any hazard that may be identified.
If an employee approaches the employer claiming to have a respiratory illness and/or “disability,” the employer must engage in an “interactive process” or dialogue with the employee and should obtain all available medical information and other information from the employee regarding the health condition to determine whether there is any foundation for the health condition and, if so, whether the condition constitutes a substantial impairment of a major life activity (such as breathing) and, therefore, qualifies as a “disability” under the ADA that must be reasonably accommodated by the employer.
When deciding on whether there is a “disability” and whether there is a requirement for or reasonable means of accommodation for the employee, the employer should seriously consider using a qualified licensed health care provider as part of the decision making process. If the employer utilizes a qualified health care provider, there are two potential benefits. First, there will likely be a defensible position taken by the employer that the accommodation provided (if necessary) was a reasonable one under the ADA. If the employee rejects the accommodation and the matter proceeds to litigation, it is likely that the employer can avoid liability, particularly for any type of punitive damages based on malice or reckless disregard, because the employer made a “good faith” effort at compliance.
Obviously, the disc jockey case discussed above appears trivial, a dispute over the wearing of perfume in the workplace. A jury may, however, see it quite differently and the employer must develop and follow a reasonable protocol to respond to such complaints if it is to avoid such high profile liability.
Labor and the Law - August 2005 Render