FMLA and ADA: Fragrance-Sensitivity Protected at the Workplace

In Brady v. United Refrigeration, (June 3, 2015, E. D. Pa. no. 13-cv-06008-ER) (Robreno, J.), the court held that an employee with fragrance sensitivity whose employment was terminated may proceed to trial with her claims for interference and retaliation under the Family and Medical Leave Act (FMLA) and for discrimination and harassment under the Americans with Disabilities Act (ADA).

In Brady, the employee developed adverse reactions in the form of headaches and burning of the throat, to perfumes and other fragrances. The employee contacted the employer’s human resources manager to inform the employer that she suffered from “multiple chemical sensitivity” and requested a fragrance-free zone within the office. The record before the court established that the employer took certain measures to address the employer’s condition, such as multiple memoranda to other employees banning fragrances at the workplace; the purchasing of air purifiers and breathing masks; and the relocation of the employee to another area of the office location. However, there was evidence the employees ignored the memoranda, the air purifiers were substandard, and the employee refused to wear a mask. When the fragrance scents arose at the workplace, the employee’s symptoms were triggered and at times caused absences from the workplace. After being notified that she may qualify for FMLA leave, the employee presented a note from her doctor which indicated that the employee would experience three-hour flare-ups once or twice a week during the following one year period.

Ultimately, the employer terminated the employee and in the termination letter the employer stated, “After what we consider to be extraordinary efforts to accommodate you, you have still not been able to consistently perform the essential functions of your job. These accommodations have not allowed you to report to work regularly, which we need you to do. We do not have work available that meets all of your restrictions. Accordingly, effective today you are being laid off.”

The court held that the fact that the employee technically did not receive a final approval or disapproval of her request for FMLA leave prior to the termination of employment does not end the inquiry: “Just because plaintiff’s employer may have sat on her request for FMLA leave without deciding to grant or deny it does not mean that defendant is not legally responsible for denying said leave. And moreover, defendants did at least constructively deny her request with her firing.” In ruling that the employee could proceed to trial, the court held that the evidence could support a finding that the employer terminated the employee based on her request for leave. The court was persuaded by the fact that prior to the employee’s FMLA request, management did not express concern with excessive absences or any other performance issues. Further, the court held that “logically speaking, simply because an employee may have attendance or performance issues prior to a request for FMLA leave does not necessarily preclude an employer from improperly retaliating against the employee as a result of her request.”

In its ruling the court noted that the temporal proximity- the length of time between the FMLA request and the termination – was “unusually suggestive” and could be a retaliatory act under the FMLA.
The court also found that there was evidence of hostility existed toward the plaintiff’s medical condition on the part of the employer in the form of disgusted looks by management and a statement made by management when the employee stated that fragrances in the office persisted even after corrective measures were taken, “Well, let’s go down and we’ll sniff everybody.”

In Brady, the court also held that the employee could proceed with her disability discrimination claims under the ADA and Pennsylvania Human Relations Act (PHRA) because the facts support a prima facie case finding in that (1) the employee has a disability, (2) the employee was a qualified individual, and (3) the employee suffered an adverse employment action because of that disability. While the court found that the employer provided a legitimate, nondiscriminatory explanation for the adverse employment action- the employee’s inability to report to work regularly the court held that the evidence supported a finding of sufficient evidence to disbelieve the employer’s articulated legitimate reason, and instead conclude that there was disability discrimination and harassment under the ADA and PHRA.

For more information on the Family and Medical Leave Act (FMLA), Disability Discrimination and Abramson Employment Law, see,,

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Filed under Americans with Disabilities Act - Disability Discrimination, FMLA, Retaliation

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