Multiple Chemical Sensitivity and the ADA

Posted on May 03, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

Americans with Disabilities Act.

Post by Michael Walkup, attorney at law.

I get a lot of emails from people who are still trying to work and are attempting to get their employers to provide them with some type of accommodation for their chemical sensitivities. Basically, they are trying to force a reluctant employer to do something that the employer is not willing to do and want to know if they can use the Americans with Disabilities Act (ADA) or the federal counterpart.

Until very recently, this has not been a fruitful approach. When the ADA was first passed, a lot of people were hopeful, or apprehensive depending on their situation, that it would revolutionize the workplace. If you just read the language of the ADA, it would seem to require employers to do all sorts of things to accommodate people, and might have a substantial impact on how work injury claims are handled as well.

I remember being deluged with seminar offers in the early 90′s about the ADA. Speakers went into dizzying detail about all of the provisions and their impact on employment law, workers compensation, and disability benefits. A lot of these were really thinly disguised marketing efforts by lawyers looking to get hired by employers. They put quite a scare into them.

Then the federal courts got a hold of the cases on appeal and basically shut down the entire ADA by the restrictive way they interpreted it. I think they were trying to avoid having their already crowded dockets flooded by a wave of ADA cases, but the end result is that the law in its application was essentially gutted. The seminars mainly stopped as well. Employers no longer needed to worry and hire lawyers.

Under the ADA, you have to file a complaint with the Federal Equal Employment Opportunity Commission. They will try to informally resolve the matter, and may schedule a conference or hold a hearing. The EEOC is also charged with handling all cases involving racial, gender, age, and other forms of discrimination prohibited by the Federal Civil Rights Act, and already had their hands full before the ADA came along.

As a practical matter, it is difficult to ask an employer to make an accommodation for someone with Multiple Chemical Sensitivity and/or Environmental Illness (MCS/EI). An employer does not want to regulate the wearing of perfume by other employees, pull out the synthetic carpet, install windows that open, or change what chemicals the cleaning crew is using. Similarly, they may not feel comfortable with having an employee work solely from home. This, at least, seems to be the way the EEOC has viewed it up to now.

There have recently been some minor language changes in the ADA pertaining to the definition of disability so we will have to wait and see what effect that has on MCS/EI cases. There is also a recent Canadian study where they suggest a number of accommodations that employers could make (although they mention in the same study that the American rules are much more restrictive).

In the meantime, although I can work with clients in any part of the country on ADA issues, I also tell them that they may wind up having to quit and apply for disability. These are actually the reasons that people with MCS/EI are disabled. It’s not that they can’t do the job, it’s that people won’t cooperate, and these exposures can’t be avoided outside of the home environment.

Link to all columns by Michael Walkup.

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This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Michael is an experienced disability practitioner with more than 25 years experience in the disability law field. In 2001, he became disabled due to Multiple Chemical Sensitivity (MCS), Chronic Fatigue Syndrome (CFS) and Fibromyalgia Syndrome (FMS). He now provides a service to advise clients with potential disability claims who have MCS, CFS and/or FMS. As these programs and law are usually federal, he is able to practice in all 50 states and, therefore, represent clients regardless of location.

Michael is a long time Sustaining Member of the National Organization for Social Security Claimants’ Representatives, the only national body for disability representatives. He is also certified as a Federal Trial Lawyer and is admitted to the U.S. Court of Appeals for Veteran’s Claims.

Michael would welcome the opportunity to possibly help with disability claims. For more information, visit his website MCS Legal Help at walkuplaw.com. Contact info: email MJWalkup@Amertech.net or call 866-880-4878.

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Tags: ADA, Disability Rights, Environmental Illness, Law, MCS, Multiple Chemical Sensitivity, Worker's Rights

5 Responses to “Multiple Chemical Sensitivity and the ADA”

Sherri Myers

04. May, 2009

I am an attorney and I have Multiple Chemical Sensitivity. A person’s rights often depends on who the employer is, such as a private business or governmental entity. The ADA governs private businesses and state governments. However, 504 of the Rehab Act governs federal agencies and even private businesses that have government contracts. Furthermore, Title II of the ADA which applies to state agencies has a standard that is highter that Title I or III of the ADA.

There are many things an employer can do to accommodate persons with MCS. Some of these accommodations can be found on the Job Accommodation Network website.

I believe that one of the most powerful tools we have is the indoor environmental air quality study funded by the United States Access Board. This is the federal agency that designs all of the ADA accessibility guidelines known as ADAAG. The Access Board as a study called IEQ by the National Institute of Building Science. According to the NIBS air fresheners, perfume and fragrance are a major contributor to indoor air pollution. They recommend that these chemicals not be used in buildings. They also recommend building and creating safe rooms for people with MCS. To read this 80 page study and report just google United States Access Board and then in the search box type in multiple chemical sensitivity. The reason this report is usefull is because employers should be interested in the overall health of employees.

There have also been some successful lawsuits against employers for failing to accommodate employees who have chemical sensitivity. Google Erin Webber lawsuit. A jury award her 10 million dollars against her employer. The award was later reduced by an appeals court.

My point is don’t give up. There is a new administration in Washington and with more emphasis on going “green” people are begining to listen to us.
If you live in the State of Florida, the Florida Constitution Article I, Section II prohibits discrimination against person with phyisical disabilites. That means a government entity in Florida would have to show a compelling state interest in denying accommodations to an employee. A much higher standard than the ADA.

Reply to this comment
Susie Collins

04. May, 2009

Aloha Sherri, Thank you for stopping by and adding info. I’ve added a couple of links to your comment for easy access for our readers.

I’ve had very good response by my employer– a state university– regarding safe accommodations that I need due to my Multiple Chemical Sensitivity. The on-campus ADA officer has always been 100% supportive of my need for safe accommodations, and she uses as a guideline the ADA. When I first started work at the university 10 yrs ago, my boss allowed me a home office, but required I come in for some mtgs, which got me sick, but I could handle. Then, as the yrs went by, I couldn’t come in for mtgs, so I was included through a speaker phone. Then I had to stop going in altogether, and they have been 100% supportive. I attend all mtgs through speaker phone. The campus ADA officer has always been very supportive and clear about my rights, and my boss has always willingly complied, even though she’d really prefer to have me in an office on campus. Never have they considered letting me go. The ADA officer often forwards to me information on MCS and EI as it comes into her office, including info from JAN (the Job Accommodation Network). So never has it gotten to the point of me having to push anything legally to assert my rights. My point is, I think it does depend where you work on how supportive your employer is about executing the ADA in regards to MCS.

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Jeanne

08. May, 2009

Susie,

I just wanted to THANK YOU for providing me with Michael Walkup’s name and contact information (recently) regarding my friend. She had had an initial consultation with a different attorney prior to you giving me Mr. Walkup’s info. Some comments were made by this other attorney that concerned me and made me wonder if if really comprehends MCS at all. I am so thrilled that my friend is now in the hands of something who “gets it”.

Thank you again!

Jeanne

P.S. Susie, I think it’s awesome that your employer is so supportive. That’s wonderful. If only that kind of supportive attitude could be more common amongst employers. I didn’t realize you work for a university.

Reply to this comment
Susie Collins

08. May, 2009

Aloha Jeanne! We’re very lucky to have Michael as part of our MCS community. I’m happy your friend was able to consult with him about her claim.

Reply to this comment
Michael Walkup

10. May, 2009

I want to thank Sherri Myers for her comments. I am not disagreeing with her that there may a light or two at the end of the tunnel. What I wanted to show people was that it is a difficult row to hoe trying to compel an employer to accomodate someone with MCS and people shouldn’t get their hopes up in that regard. Some states are more enlightened than others so a lot will depend on where you live. The reason that people with MCS should be considered “disabled” by Social Security and insurance policies is precisely that most employers won’t make the necessary accomodations and can’t be easily forced to do so. Unless you can get the rest of the world to stop wearing perfume, as just one example, it is going to be very difficult for people who are sensitive to co-exist unless they are in an area, such as their own home, where they can exert at least some control.

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