By Gina McAndrew – June 22, 2015
In a recent case, an employee alleged that she suffered from a fragrance allergy and “multiple chemical sensitivity” to fragrant chemicals, perfumes and scented lotions, which impacted her in several ways, including migraines, nausea and difficulty concentrating and focusing. After suffering for several years, she informed her employer of her sensitivity and asked for a “fragrance-free zone” at work. Over the course of the next ten months, the employer made various accommodations, including providing (and later replacing) an air purifier for her desk, relocating her workstation, purchasing face masks (which she refused to wear), distributing a “no fragrance memo” to employees (no less than four times), and cleaning and replacing the panels of her work station. The employee continued to suffer the adverse effects of her allergy and even took a brief medical leave, for which she was subsequently notified was FMLA-eligible.

Despite these efforts, the employee continued to suffer adverse effects and was unable to work her full schedule. She ultimately took additional time off and was notified that she was potentially eligible for leave under the FMLA. However, just one week after submitting a request for medical leave- and before receiving a response- she was terminated, allegedly for her failure to regularly report to work and consistently perform her essential job functions. The employee filed suit alleging FMLA, ADA and PHRA violations, and the employer subsequently sought summary judgment.

In reviewing the employer’s request for summary judgment, the court was not convinced that the employee was ineligible for FMLA leave as argued by the employer, both because her request could be construed as a request for intermittent or reduced leave and the employer had notified the employee less than two weeks before her termination that she was potentially eligible for such leave, and further, that there was evidence of retaliation and a pretextual reason for her firing.  The court also found that the employee offered enough evidence to meet the definitions of disability (under both the old and new ADA standards) and qualified individual, as well as “at least some evidence of… hostility” towards the employee as a result of her condition case in regards to her ADA and PHRA claims of disability discrimination. As it had in regards to retaliation, the court opined that the employee provided sufficient evidence to show that the employer’s reason for terminating her was pretextual.

In denying the employer’s motion for summary judgment on all counts, the court’s opinion provides a few key reminders about the FMLA:

• Terminating an employee who has made a valid FMLA leave request may amount to interference and retaliation, which are both prohibited under the FMLA.
• Intermittent or reduced leave is permissible under the FMLA.
• Timing may be “unusually suggestive of retaliatory motive.”

Source: Can a Fragrance Allergy Lead to an ADA or FMLA Claim? | McNees Wallace & Nurick LLC – JDSupra