An employee sets up two large desk fans and uses them to regularly spray alcohol disinfectant in hopes of keeping her workspace free from Covid-19. However, the strong-smelling sanitizer triggers headaches in a nearby co-worker, who complains.
This dispute occurred between two employees at a Midwest accounting firm, according to Philippe Weiss, president of Seyfarth at Work, a consulting division of management-side law firm Seyfarth Shaw LLP.
The employer ultimately resolved the situation by separating the two employees and providing “low-aroma” cleaning kits to all its workers, Weiss said. But the fight over the fans shows the potential for litigation over pandemic return-to-work issues, he said.
“With allergies, sensitivities, and the general risks related to rising employee tempers, other employers facing a similar set of facts may not be as fortunate,” Weiss said.
It’s not just employee cleaning that can set off disputes. Employers taking extra sanitation precautions as part of their coronavirus safety measures need to be mindful of their responsibilities to accommodate workers with allergies, respiratory issues, migraines, and other potential disabilities, said Peter Gillespie, an attorney at Laner Muchin in Chicago.
“You run into employers saying they need to take additional measures, and employees saying they can’t tolerate that” because of medical conditions that may be covered by the Americans with Disabilities Act, Gillespie said, adding that at some point this will percolate up into lawsuits.
Employers facing possible ADA claims should ask for medical documentation, both for the issues being experienced by the workers and for underlying conditions that might be covered under the federal disability law and require accommodation, Gillespie said.
It’s not always simple to pinpoint the reasons for the problems, he said.
“If somebody says out of the blue, ‘I’m having headache symptoms,’ the new cleaning chemical might not be the culprit. If employees have been out of the workplace for a while, it’s that much harder to narrow down where the concern is coming from,” he said.
Litigation is a risk both for cleaning done by the housekeeping staff and for cleaning done by other employees if it’s at the request of the employer, Gillespie said. If an employer tells its workers that they need to wipe down their surfaces every hour and this results in medical issues covered by the ADA in other workers, for example, this could expose the employer to liability.
Employers should be aware not only of the risks to office workers but also to the cleaning staff, said Julia Judish, an attorney at Pillsbury Winthrop Shaw Pittman LLP in Washington. For example, guidelines from the Centers for Disease Control and Prevention on known Covid-19 exposures in workplaces specify that areas shouldn’t be cleaned for 24 hours from the time of exposure to reduce the risks to cleaners, she said.
“One of the big risks here is the lack of clarity” on what exactly employers need to do to avoid legal complaints in the current environment, Judish said.
‘Still Early’ for Lawsuits
Neither Weiss, Gillespie, nor Judish were aware of any lawsuits related to chemical sensitivities triggered by Covid-19 cleaning.
“A huge number of employees are still teleworking. It’s still relatively early for this to have bubbled up to the level of litigation,” Judish said.
It will likely take at least six months for lawsuits related to Covid-19 cleaning to make their way to the courts, said employee-side attorney Lawrence Morales II with The Morales Firm P.C. in San Antonio, Texas.
That’s how long it generally takes to get a right-to-sue letter from the Equal Employment Opportunity Commission after the agency has been given the opportunity to respond to an administrative complaint, Morales said. His firm hasn’t yet taken on a chemical sensitivity case related to Covid-19.
Telework as Accommodation
To reduce the risk of litigation, employers should engage in the disability accommodation process with workers who have allergies or sensitivities to cleaning agents.
In a recent case involving sensitivities to cleaning chemicals outside the context of the pandemic, a federal district court in California ruled Sept. 2 that Allegiant Air LLC may have failed to accommodate an employee whose hands broke out in blisters in August 2013 because of a cleaning agent the airline used on its planes.
The airline said it engaged Michelle Budwig in the interactive accommodation process required by California anti-discrimination law and accommodated her by placing her on leave while the process played out. Unpaid leave can be a reasonable accommodation and Budwig ultimately returned to work as a flight attendant, using gloves when she was around the cleaning agent. But a jury could agree that it wasn’t reasonable to place her on leave, and that it took Allegiant too long to reassign her to the job, the court said.
Telework is also a possible accommodation, depending on the facts of a case.
Employers that deny a requested telework accommodation may be hard-pressed to establish that they’ve met their ADA obligations, assuming that the job can be done from a remote location. That’s particularly relevant in the current environment where so many employees have been working effectively from home for months, said Julie Bittner, an attorney with MWH Law Group in West Des Moines, Iowa.
On the other hand, employers that offer telework as an accommodation can point to that even if the employee doesn’t want to work from home, Bittner said. In Hollen v. Chu, for example, the employer offered up to 20 hours per week of telework as an accommodation to an ADA plaintiff who said her asthma was exacerbated by dust, pollen, and perfume at her workplace. The plaintiff “never took advantage of this time,” the court said in ruling for the employer on the worker’s failure-to-accommodate claim.
Sometimes, an employer’s efforts don’t result in resolution, Bittner said.
In Milton v. Texas Dep’t of Criminal Justice, where the plaintiff said she was “allergic to everything,” the employer among other things offered three months of leave while it searched for an accommodation. The court ultimately found for the department, ruling that the plaintiff’s “allergies may annoy her and cause her discomfort, but they are not disabling.”
“If you are the employer, you will rely on that case,” Bittner said, adding that her research showed the ruling, rendered by the U.S. District Court for the Southern District of Texas, had been cited more than 40 times.
Other accommodations for employees with chemical sensitivities may include changing to a different cleaner, either for all employees or for the area occupied by the person with the sensitivity, or changing the cleaning schedule so that cleaning isn’t done during work days to the extent possible, said Amber Clayton, knowledge center director at the Society for Human Resource Management.
“Don’t ignore it” when an employee says they have an issue with how cleaning is done, Clayton said. That’s where a difficult but manageable situation may become a litigation risk, she said.
Employers that face potential lawsuits generally need to think not just about the current legal environment, but about what the environment might be like by the time a court rules on the lawsuits, Bittner said.
“What will a jury think in two years?” is the question that employers should be asking themselves as they look to protect their employees from Covid-19 through enhanced cleaning and mask- and social-distancing rules, she said.