It happens to Migraineurs again and again - we go to work and the people around us wear perfumes or strong scented deodorants or lotions or aftershaves. Their scents trigger Migraines, and we can't work. We have to go home, use our sick leave, maybe our pay is docked. Our work performance suffers, our budget suffers. If we complain to our employer, we are often told to put up with it. Or we are told that the employer cannot restrict the other worker's freedom to wear the scents, or we're told to be a team player and not make waves. This issue has been raised here on My Migraine Connection dozens of times. The great news is that there is a recent Federal case which makes it clear that employers can indeed, and in fact must, restrict employees from wearing perfume if it impacts your health and makes it impossible for you to work!
*** This sharepost is legal education, not legal advice. No attorney-client relationship is created. ***
Recently Miles posted this question in the Q & A section of the site:
"Need women at work to quit wearing perfume: Perfume is a horrible migraine trigger for me. The women in the office where I work wear it all the time -- lots of it. Talked to my boss. He said "live with it," but gets ticked when I get a migraine. Isn't there some kind of law about workplaces that should protect me?"
Yes, Miles, there is a law that protects you. It is the Americans with Disabilities Act (ADA) as amended by the Americans with Disabilities Amendments Act of 2008. The ADA prohibits employment discrimination against persons with disabilities, and what is significant about that is that it is considered discrimination if you are unable to perform your job because your employer failed to make reasonable accommodations to your disability which would have made it possible for you to work.
Does this apply to Migraineurs and perfume? Until recently I would have said the jury was out on that question, but two things happened in the past few years. The first was McBride v. City of Detroit. Susan McBride worked for the City of Detroit and she sued her employer under the ADA when the City refused to institute a no perfume policy as an accommodation to her extreme chemical sensitivity. The City moved to dismiss her claim, stating that Ms. McBride had not made out a case for disability under the ADA. A coworker's perfume caused Ms. McBride to become ill, miss work, and receive medical treatment. Her employer had refused to recognize her chemical sensitivity as a disability, or to provide accomodations. The US District Court denied the motion for summary judgment, holding that Ms. McBride had made out a sufficient case for a disability under the ADA, and that enforcing a no perfume policy could have been a reasonable accommodation. Although the McBride case did not deal with Migraine specifically, the facts are exactly parallel to a Migraine case, and the court ruling is such that the door is open to future lawsuits brought by Migraineurs.
Secondly, under the amendments to the ADA passed in 2008 (which went into effect on January 1st of 2009), protections for diseases like Migraine are much clearer than ever before. Under the original ADA it was difficult to make out a case for discrimination if your disability was episodic, rather than constant. The new amendments make it clear that episodic disorders like Migraine are a disability if they "substantially limit a life activity" when active. In other words, the fact that you are not impaired in between Migraine attacks has no relevance. If you are impaired during an attack (and we all know just how impaired Migraineurs can be during an attack), it is sufficient to be considered a disability.
What does all this mean in real life? A law like the ADA only protects you if your employer complies with it. Employers don't want to be sued, and making your employer, or the Human Resources department at your workplace, aware of your rights under the ADA, may get you what you need. Ultimately, if it doesn't, you would have to bring a lawsuit to defend your rights.
Miles, you might think about bringing a letter from your doctor stating that perfume is a trigger for you, and that a Migraine attack makes you unable to work. You aren't required under ADA to give your employer notice in writing, but it wouldn't hurt!
I will be writing more about the ADA next week, including more details of your rights under the ADA, accommodations Migraineurs have gotten from their employers, how to talk to your employer about accommodations.
- Megan Oltman
© Megan Oltman, 2009.
Last updated April 20, 2009.
This sharepost is legal education, not legal advice. No attorney-client relationship is created.