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Allergies in and to the workplace

July 15th, 2015  |  Kathy Kapusta

According to the American College of Allergy, Asthma, & Immunology, allergies are a major cause of illness in the United States, affecting as many as 50 million people, or one in five Americans. One common allergy trigger, mold, can be found both in and out of the workplace, and can cause a variety of reactions, including for some, severe respiratory problems. Several recent decisions highlight issues faced by employers when dealing with employee allergies in and to the workplace.

No disability for undiagnosed mold allergy. On June 1, a federal district court in Oklahoma found that an employee for an air conditioning and heating equipment manufacturer, who insisted she was disabled by a mold allergy triggered by her workplace environment, could not show she was disabled or regarded as disabled, or that she could fulfill the essential functions of her job from home.

Two years into her employment, she sought treatment for a respiratory problem she believed was caused by her work environment. After being relocated to a newly renovated building, she submitted medical records showing she was allergic only to cockroaches.  

She continued to experience breathing difficulties at work, however, and was placed on leave. Environmental testing of the workplace indicated no mold problem. When she reported being asymptomatic since leaving work, her doctor concluded she could return without restrictions. While the employee suggested she could work from home, her employer disagreed and she was ultimately terminated for failing to provide requested medical documentation. She then filed suit under the ADA.

The employee presented no evidence of an “identifiable respiratory problem.” Nor could she establish she was disabled by an actual physical or mental impairment or that her employer regarded her as having an impairment. Though she had breathing problems at work, that was not enough. Not only was there some evidence her coworkers believed her breathing problems were the result of anxiety issues, her physician found no medical evidence of any particular breathing problem. Further, medical documentation did not show a disabling condition.

. . . mystery illness. Without an ability to actually identify the underlying medical condition, the employee also could not specify accommodations that would allow her to perform her job’s essential functions. While the employer did move her office, it refused to do so again. Because she could not identify a “trigger” for her problem, there was no reason to believe a second move would help. Even diagnosing her with a mold allergy would not have made a difference, said the court, because there was no evidence of mold at the workplace. Thus, her disability discrimination claims failed.

Sick teacher ‘could not work, period.’ In a decision just days earlier, a federal district court in Connecticut found an art teacher with severe allergies, who alleged that the environmental conditions in her building caused or exacerbated her health problems, led to her cancer diagnosis, and ultimately required her to take a series of medical leaves, could not show her eventual termination was the result of disability discrimination. Nor could she show she was fired in retaliation for her complaints in the face of undisputed evidence of her employer’s sustained efforts to respond to her concerns about the air quality in her room.

After the school converted the teacher’s room into two classrooms, she became ill almost immediately, informing the principal that there were odors from the paints, sealants, and adhesives in the windowless room. Upon learning she was being treated for bronchitis, asthma, and allergic rhinitis her doctor believed might be due to environmental issues, the school made multiple accommodations, including allowing her to teach “art on a cart,” installing an air conditioning unit and a window in the room, reconfiguring the door to provide air from the hallway, providing air cleaners, and allowing her to take several leaves of absence. She was ultimately diagnosed with multiple myeloma. She then filed suit, asserting claims under the ADA, the Rehab Act, and state law. The school removed her from its payroll and eventually placed her on retirement status.

The court found she could not show she was qualified or able to perform her job’s essential functions at time her wages and benefits were terminated. Not only did her own doctor state she was not able to return to work in any capacity for the foreseeable future, no doctor had authorized her to return to work at any time since before the prior school year.

Further, she was not terminated for being unable to perform a job she could in fact perform with the right accommodations; rather, at the time she stopped receiving her salary, she could not work as an art teacher, period, said the court. In addition, she failed to show the school’s reason for her termination—that it no longer made sense to keep her on the payroll when she could not perform the job’s essential functions and there was no suggestion of when, if ever, she would be able to return to work—was pretextual.

As to her argument that she received ineffectual accommodations, the court found no reasonable jury could conclude that the multiple accommodations were provided in bad faith with the purpose of terminating her employment.

. . . holding position open longer. And while she argued that the school should have held her position open at least for the duration of her accrued sick leave, she cited no law to support her position that after multiple extended medical leaves (the last of which was a full year long) and a doctor’s letter stating she would not be able to work in any capacity for the foreseeable future, the board was nevertheless obligated to accommodate her by continuing to keep her on the payroll. Nor was there evidence that a longer medical leave would have allowed her to perform the essential functions of her job. Thus, she failed to show she was denied a reasonable accommodation.

. . . bad faith. Finally, the court found no evidence showing that the school board’s efforts to accommodate her amounted to bad faith or even a breakdown in the interactive process. Although she found the accommodations inadequate or undesirable, and they did not ultimately solve her health issues, that did not indicate a communication breakdown.

Employee with mold allergy states ADA claim. Just a few weeks later, a federal district court in the Virgin Islands found that a Department of Justice employee, who alleged her allergic reactions to workplace mold forced her to work out of her car and use sick leave and that her requests for relocation and air quality testing were denied, stated a claim for disability discrimination in violation of the ADA.

Shortly after she started working at the VIDOJ, she began experiencing pressure headaches, aggravated sinus pressure, pain around her left eye, and a numbing sensation on the left side of her face. These symptoms occurred only at work and in order to deal with them, she worked out of her car and used sick leave. She also purportedly asked her supervisor to perform an air quality test and temporarily relocate her but her requests were denied.

. . . mold in the building. Shortly thereafter, she learned the building had mold issues. Although she told her supervisor, he again denied her requests for an air quality test and relocation, advising her instead hat he was extending her probationary period and recommending termination if her attendance did not improve. Her physician then sent her supervisor a note recommending that the employee “refrain from work until the mold issue is resolved at her work place.” A second doctor recommended that she be relocated to some place free of mold and dust. She subsequently sued, asserting among other things that her employer discriminated against her in violation of the ADA by refusing to reasonably accommodate her disability.

Allegations that the employee informed her supervisor of her allergies and medical ailments on multiple occasions and that it denied her requests for temporary relocation and air-quality testing were sufficient to state a claim that her employer failed to make a reasonable accommodation to her known physical limitations, said the court. In addition, she sufficiently alleged she suffered from a physical impairment. She averred that she experienced “recurring headaches and severe allergies” while working in the VIDOJ’s office. Further, she had to work out of her car and use her sick leave to deal with the allergic reactions. Her headaches and sinus problems, caused by a mold allergy, constituted a physiological condition affecting her respiratory and immune systems. And, said the court, she sufficiently alleged that her allergic reactions substantially limited the major life activity of working. Therefore, she stated a claim that she was disabled.

And while the employer argued that she could not perform the essential functions of her job because she could not work while physically present in the office, the court pointed out that it unwittingly conceded her allergic reaction to conditions in the workplace prevented her from doing her job. Finding that the employee sufficiently averred that she was qualified for her job, the court denied the employer’s motion to dismiss her claim.

Chemical-sensitive employee. That same month, a federal district court in Pennsylvania  ruled that an employee fired after almost a year’s worth of wrangling with her employer to obtain a fragrance-free work environment to accommodate her chemical sensitivity could present her disability discrimination and FMLA claims to a jury.

. . . fragrance free zone. Five years into her employment, the employee developed a heightened sensitivity to chemicals and fragrances, which led to severe headache. She asked her employer to provide a fragrance free zone in which she could work and in response, the company moved her to another area, provided her with an air purifier, and issued a penalty-free “No Fragrance Memo” to employees on that floor. The worker seated next to her, however, wore perfumes every day and many workers openly objected to the policy.

When the employee complained, the memo was re-circulated, again without any associated penalties for violation. Upon learning that the coworker she sat next to had been specifically exempted from the policy because of a skin condition, the employee complained and the coworker was finally moved to a different location. The employee also noted that the air purifier was broken and not necessarily effective. She subsequently took nine days of FMLA leave.

. . . reissued memo (again). Four months later, the employee again requested that the no-fragrance policy be circulated, complaining that the fragrances were getting worse instead of better. The employer modified the memo to include body lotions and sprays, as well as a threat of disciplinary action for non-adherents, and reissued it.

. . . laid off. The employee continued to complain about migraines from perfume fragrances. She requested intermittent FMLA leave and worked with her supervisors and HR to find a location where she could function. However, she ultimately received a letter informing her that she had been laid off because, in spite of the employer’s self-proclaimed “extraordinary efforts to accommodate” her, she still had not been able to consistently perform the essential functions of her job. The employer explained that the accommodations it had provided had not allowed her to report to work regularly and it did not have work available that met her restrictions. She subsequently sued, alleging violations of the FMLA, the ADA, and state law.

. . . FMLA claims. In arguing that the employee was not eligible for or denied FMLA leave, the court noted that the employer appeared to rely on the fact that it never responded to her final request for intermittent leave. Here, the court found that the employer had, at the very least, constructively denied her request by firing her, which could constitute interference. Moreover, although it claimed that the requested leave was indefinite and unpredictable, when viewed favorably to the employee, her request would have accommodated her flare-ups and allowed her to work for a substantial number of hours each week. Material fact disputes persisted, therefore, regarding her interference claim.

As to her retaliation claim, the court found no evidence that her supervisors had expressed concerns about her absences or any other performance issues prior to her leave request. Additionally, the correlation of the employee’s request to her termination, only a few days later was suggestive of a retaliatory motive, said the court.

. . . disability discrimination. Further, the employee presented sufficient evidence that she was “disabled” within the meaning of the ADA. She asserted that several major life activities had been substantially limited by her condition, including “breathing, thinking, concentrating, perception, taste, and work.” She also demonstrated that she sought medical treatment from several physicians and specialists and alleged that she suffered frequent and debilitating headaches. She provided substantial documentation of her condition to her employer, as well.

She also presented evidence that she was a qualified individual. While the employer contended that the ADA does not protect employees who have “erratic and unexplained absences,” the court noted that her absences were not unexplained. In fact, her condition was triggered by stimuli that were at least somewhat within the employer’s power to control. If it would not sufficiently administer or enforce its no-fragrance policy, then, said the court, it might have to accept that the employee would have to take some time away from that environment. Observing that her request for a few hours off of work for flare-ups was distinguishable from an employee who is completely missing in action for months with no end in sight, the court found the employee had sufficiently shown that, with reasonable accommodation in the form of finite periods of medical leave, she was able to perform the essential functions of her position.