Under the law, a “disability” is not limited to physical impediments to movement, but can also include impairments to other activities. Courts have recently become receptive to a new category of disability — allergies and fragrance sensitivity.
A New York County Supreme Court judge ruled yesterday that an officer previously employed by the New York City Department of Correction may sue the City for failing to accommodate an allergy to his own workplace. The officer had taken what the City considered an “excessive” number of sick days, as he found that the Rikers Island prison, where he was assigned to work, caused him to go home with inflamed lips and hives.
Although New York City law has not yet found allergies to fall into the definition of “disability” under its anti-discrimination laws, federal law has recognized allergies as a disability for the last few years. Under the Americans with Disabilities Act, an employee has a qualified disability if he or she has a physical or mental impairment that limits one or more major life activities. In most cases, if an employee’s breathing is hindered by a certain fragrance or allergen, the employee has a qualified disability that must be reasonably accommodated, unless the accommodation imposes an undue hardship upon the employer.
Accommodations that have been found reasonable include banning a particular fragrance from the workplace, providing improved ventilation to the employee, offering a partial-face respirator, and permitting intermittent breaks when the employee becomes affected by an allergen. Where employees were unable to identify the particular fragrance that was causing the irritation, federal courts have refused to require employers to mandate a blanket fragrance-free policy.
In the Rikers Island case, the officer had requested that the City transfer him to a different prison that did not cause irritation. The New York County Supreme Court will determine whether this accommodation would have caused an undue burden to the City under New York City law. This issue of allergies or fragrance sensitivity as a disability is likely to appear in other jurisdictions across the country, following the trend of federal law.