Multiple Chemical Sensitivity and the Law
At one time or another, almost everyone has experienced an allergic reaction. For most people, these reactions involve sneezing, coughing, runny noses, etc. For some people, however, allergies mean more than routine sniffling and sneezing. To them allergies can literally be life-and-death. Most people are familiar with nut allergies, which can be deadly to those who suffer from them. Recently, though, the law has begun to recognize Multiple Chemical Sensitivity (MCS) as a disability. Those afflicted with MCS have allergic reactions to perfumes, deodorants, laundry detergents and other scented consumer products. Often MCS sufferers have a particularly strong asthmatic reaction to one specific scent, with lesser reactions to other scents. These reactions tend to become progressively more and more severe with each exposure and, at their most severe, they can be life-threatening.
From a legal perspective, recognition of MCS as a disability has been slow in coming. At the beginning of 2009, though, the Americans with Disabilities Amendment Act (ADAA) went into effect. Congress enacted the ADAA largely because too many claims were being dismissed under the original ADA based on courts’ refusal to recognize certain conditions as disabilities. The “Findings and Purpose” section of the ADAA states “lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” Based on this language, Congress intended for the ADAA to include more people in the definition of disabled.
Recently, an employee of the City of Detroit with MCS sued her employer for a violation of the ADA based on its failure to limit fragrances in the workplace. She won a monetary settlement, and the employer adapted a policy requesting that employees “refrain from wearing scented products, including but not limited to colognes, after-shave lotions, perfumes, deodorants, body/face lotions, hair sprays or similar products . . .” Also, the Center for Disease Control (CDC) adopted a similar policy to limit the wearing of fragrances in the workplace. Obviously, only so much restriction can be placed on the hygiene items employees wear to work, and enforcement of the policy is more difficult than enforcing a dress code, just as an example. However, these policies indicate a recognition of MCS as a legitimate disability, which could require a reasonable accommodation under the ADA.
An employee who thinks he or she might suffer from MCS and might need an accommodation from the employer, must first ask the employer for a reasonable accommodation under the ADA. The employer then has an obligation to engage in a dialogue regarding the accommodation. The employee might not get the exact accommodation requested, but it needs to be reasonable under the circumstances. If an employee does not believe the employer is negotiating the accommodation in good faith, a lawyer might then need to get involved.