Employees with hypersensitivity to certain chemicals may request that their employer ban the use of such chemicals or make other changes to accommodate them. How should the employer respond to such requests?
Hypersensitivity to certain chemicals is a physical “impairment” for purposes of the Americans with Disabilities Act (ADA), which generally applies to most employees. A physical or mental impairment is a “disability," however, only where it substantially limits one or more of the individual’s major life activities (e.g., caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working). This determination is always based on an individualized inquiry. Accordingly, one cannot say that a person with a specific impairment is or is not an “individual with a disability” without first determining the impact of the impairment on the specific individual. For example, one person with a diagnosis of Multiple Chemical Sensitivity (MCS) may have a "disability," while another person with the same diagnosis may not have a "disability" (e.g., because his symptoms are less severe).
An individual is “substantially limited” if she is unable to, or is significantly restricted in the ability to, perform a major life activity that an average person can perform. This determination is based on the nature and severity of the impairment, the duration of the impairment, and the permanent or long term impact resulting from the impairment. If an employee’s impairment is aggravated solely by her workplace environment, the impairment must foreclose her ability to work in a broad class or range of jobs (as opposed to one particular job) in order for the employee to be substantially limited in the major life activity of “working.”
There are a number of ADA cases in which employees have claimed that MCS or other respiratory sensitivity to airborne agents (e.g., asthma, allergies, acute mixed rhinitis, chronic sinusitis) constituted a “disability.” In several of these cases, the employee presented enough evidence to defeat the employer’s motion for summary judgment. In other words, it is clear that MCS can constitute a “disability” in some circumstances.
The issues in litigation are a bit more complicated because some courts have held that medical evidence regarding MCS does not meet the established standards for admissibility of scientific evidence. This position could change, however, based on greater acceptance of MCS in the medical community. More importantly, from a compliance perspective, the government agencies that enforce the non-discrimination laws view MCS as an impairment that could constitute a disability.
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