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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7642
Experience:  Significant experience in all areas of employment law.
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I ask my job in California to ask a coworker not wear perfume.

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I ask my job in California to ask a coworker not wear perfume. I have Asthma Allergies. I got a doctors note, and gave the accommodation list to my boss. HR called and said they need a few days to think about it, and placed me on leave, but they are using my vacations day or sick days so I can get paid while I'm out. Why do I have use my earned vacation days or my sick days. Almost feels like I being penalized for asking to be accommodated. Not sure why can't I go to work, while they look into this?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Good evening and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

Employers are legally prohibited from retaliating against employees for requesting disability accommodations. The question here is whether a compelled leave of absence during which you are involuntarily docked vacation days amounts to a legally actionable form or "retaliation" that, in itself, is worthy of pursuit in civil court. Most likely it's not, as you are not being made to forfeit the days--your employer is simply dictating when they will be used, and thus, the only "damage" you are suffering is the inability to use the days at another time, which is difficult if not impossible to quantify as a loss.

Nonetheless, the conduct of your employer is very concerning. To me it demonstrates that they are unhappy with your request and may signal more serious (and actionable) retaliation to come. At this stage, however, since you are being paid for your absence (albeit through your accrued vacation), you are not sustaining a quantifiable harm and, thus, legal action at this stage is likely premature.

If you suffer any actual wage loss, or you are reinstated but stripped of responsibility or demoted, you would then have quantifiable damages that could form the basis for a retaliation claim. Moreover, if you are ostracized, harassed, or otherwise treated differently for having made a request for accommodations, that can support a claim for emotional distress. In theory, being put on leave as you presently are can support such a claim as well, but the "value" and such claim on its own at this stage would be simply too small to be worth pursuing on its own.

Therefore, your best course of action is likely to ride things out and wait for a quantifiable change in your employment status or substantial harassment that can give rise to a claim for emotional distress.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes and kindest regards.

Customer: replied 1 year ago.

great. Then the only other thing is , they want me to make a claim to FMLA through the company insurance that I am out on leave due to a medical condition that stops me from doing work. And to apply for disability through the state. Should I do that, even before they make a decision on my accommodation request? I asked my HR director today, am I being fired? She said no, they just need time to think about what they can and cannot accommodate.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you very much for your reply.

Are you suffering from a "serious health condition" separate and apart from your reaction to perfume in the workplace? If not, and you are otherwise able to work, then FMLA leave is inappropriate, as is disability insurance.

You cannot and should not make inaccurate representations to the governmental agencies responsible for administering these programs simply because your employer has asked you to.

If I were in this circumstance, I would advise my employer in writing that I am fully able to perform my work but simply require the reasonable accommodation that I be be provided a work environment free of perfume. That is the issue here, and when you start applying for FMLA and disability, that sends the message that you are simply "unable to work" when in fact that is not the case at all.

Please let me know if I can be of any further assistance.
Customer: replied 1 year ago.

Under the ADA asthma is listed as a disability. And perfumes triggers my Asthma, which makes get headaches, feeling dizzy and I can't think, and can't breath well. So this make its difficult to complete my job tasks under these conditions.


 


does this make me unable to work or serious health condition?

Expert:  Patrick, Esq. replied 1 year ago.
No, not at all. What is inhibiting your ability to work is an environmental factor within your employer's control. You are perfectly able to work (as I am understainding things) provided your employer simply institutes a policy of no perfume or cologne in the work place. Unless your employer can demosntrate that instituting such a policy will result in "undue hardship," thus making it "unreasonable" as an accommodation, you are entitled to such accommodation, and with the accommodation, you are able to work. Thus, disability and FMLA leave are entirely inappropriate.
Customer: replied 1 year ago.

Oh I see. Then maybe that's what they are doing. They may not be able to institute a no perfume or cologne policy due how they like to market there business, and this would cause a hard ship for them. The doctors note I gave them says I should minimize ALL exposure to scents, perfumes, and cleaning chemicals. I rent apartments for a living, and they may not be able to control this for me. But I did give them examples of easy solutions to make it work for me and them. The only sticky one is what happens when co-workers wear perfumes and when customers walk wearing perfumes. Luckily I work at a place that is garden style so I am really always outside, except for the reception portion of my tour of the facility.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you again for your reply.

For some reason I was assuming you were in a traditional office environment, where it would be much easier to control the "scents" that are introduced. If customers are walking in and out and you need to go into apartments, your employer obviously has limited control over the scents you are exposed to, and that does pose a problem with regard to your accommodation request.

Still, it seems that FMLA and SDI are inappropriate because it is not that you are physically unable to work, it's just that you are unable to perform work in certain environments. Unless your athsma is so severe on its own that you are unable to perform work, regardless of whether you are exposed to perfume, it is not a disbability.

I hope this makes sense.
Customer: replied 1 year ago.

I feel as if I have a disability, since my sense of smell attacks my lungs with not being able to breath the toxic air in. But otherwise, yes I can work. My environment is scented all the time, and they don't like it when I have to turn it off so I can breath. The solution is to be able to turn it off, if it gets too toxic for me to breath, open windows. The solution is to allow me to start the tour quickly and go outside, if someone comes in with perfume. The solution would be not have plug ins or scents in a few vacant units or no fragrance in the model apartments so I can complete a tour. I can deal with the customers since not all will come in with perfume. I have been working there for a year, so I created a work around that works for me. Also the place is spanking brand new, they don't really need all the scents. People do love smelling new everything, not scents all the time. Most recently we hired a new hire with a strong smelling cologne that works 8 hours a day right next to me, and thats the issue. I can't escape this, and without my jobs help I really can't be around her. I need there help with this.

Expert:  Patrick, Esq. replied 1 year ago.
Thank you again for your reply.

Whether or not a disablity accommodation is "reasonable" is a fact-intensive query that goes beyond the scope of this limited online forum. It certainly sounds like you can make the argument that your accommodation requests are reasonable, though.

Now with more information and a better understanding of the complexities of the situation, it seems like your employer is taking your request under careful consideration to determine whether they are able to accommodate you without undue hardship on company operations.

If they reject your request for accommodations such that you are unable to work there any longer or if they simply terminate your employment, your options at that point in time would be to file a complaint with the Department of Fair Employment and Housing for a failure to accommodate your disability under the Fair Employment & Housing Act or to file a lawsuit in civil court for the same.

For information on how to bring a claim through the DFEH, visit this link: http://www.dfeh.ca.gov/Complaints.htm

To find an attorney who could assist you with a civil suit, see here: http://www.cela.org/?page=4

If this answers your question, I'd be very grateful for a positive rating of my service. If you require any further clarification, just let me know. Have a very pleasant rest of your evening and good luck to you.
Patrick, Esq., Lawyer
Satisfied Customers: 7642
Experience: Significant experience in all areas of employment law.
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Patrick, Esq.
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