Thus, she was subjected to these types of irritants, including the smell of smoke on employee’s garments, on a regular basis.

While the employee was still on medical leave, the Supervisor gave her a performance evaluation, stating that she met the employer’s performance expectations.  The employer terminated her employment because she was unable to return to work after exhausting her FMLA leave.

The employee filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) alleging violations of the Americans with Disabilities Act (ADA). The EEOC issued a Letter of Determination finding reasonable cause to believe that the ADA was violated and invited the employer to settle the matter through the EEOC’s “conciliation” process.  When the EEOC decided that it was unable to secure from the employer a conciliation agreement acceptable to the EEOC, the EEOC filed a lawsuit in federal court against the employer in July 2017.  The lawsuit claims that the employer failed to provide a reasonable accommodation to the employee and discharged her because of her disability.

The EEOC alleges that at no time did the employer approve the employee’s requests to telework as a reasonable accommodation for her disability. The EEOC claims that the employee could have performed the essential functions of her position with the reasonable accommodation of telework.

The employee was again hospitalized for COPD related symptoms, and she went out on medical leave and remained on medical leave until her employment was terminated a few months later.  During that leave, the employee’s direct supervisor told her on more than one occasion that the employer would terminate her employment if she could not return to work without restrictions when her FMLA leave ended. She again asked the Supervisor if she could telework, but the request was denied.

A female employee collapsed at work after a heavy bout of coughing. She was hospitalized following the incident and diagnosed with chronic bronchitis and Chronic Obstructive Pulmonary Disease (“COPD”).

She was out of work for three weeks on medical leave under the Family and Medical Leave Act (“FMLA”), due to this condition.  Shortly after she returned from leave, the employee asked her supervisor if she could telework either part-time or full-time because of her disability.  By teleworking, she would be away from actual and potential respiratory irritants at the employer’s facility. The Supervisor said she would get back with the employee.

Meanwhile, the employee continued to work onsite. Over the next four months the employee asked the Supervisor if she could telework on at least three separate occasions, but the Supervisor ignored the repeated requests to telework.

Fragrances, scents, and odors aggravate the employee’s COPD and asthma. She worked in a cubicle at the employer’s job site, along with hundreds of other employees.

Can your Florida business be sued over perfume, cologne, cigarette smoke smells in the workplace?

Law Office of David Miklas, P.A.

management labor & Employment law

Employers are cautioned that as a consequence of asthma, bronchitis, and COPD, employees may experience wheezing, severe bouts of coughing, and asthma attacks. Such physical impairments may be viewed by the EEOC and Courts as substantially limiting the employee in the major life activity of breathing.  The physical impairments may also substantially limit the operation of the employee’s respiratory functions and constitute a disability under the ADA. As a consequence of this type of disability, the employee may have difficulty talking continuously for extended periods of time.

Florida employers who are covered by the ADA should realize that the EEOC will likely claim that if an employer rejects a request to telecommute, without first conducting an individualized assessment of the requested accommodation, it will be a violation of the ADA.

If you need any assistance in handling employee requests for accommodations concerning your Florida business, please promptly email or call the Law Office of David Miklas, P.A. at 1-772-465-5111.

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