ADA | The Canary Report

Changes in the Americans with Disabilities Act may affect people with Multiple Chemical Sensitivity

Apr 282011

The Americans with Disabilities Act Amendments Act, effective May 2011, may make it easier for people with Multiple Chemical Sensitivity to secure accommodations at work.

By contributor Michael J. Walkup, Esq.

Michael J. Walkup, Esq.

Effective May 24, 2011, new changes to the Americans with Disabilities Act, called the Americans with Disabilities Act Amendments Act (ADAAA or Amended Act), will go into effect after implementation of federal regulations.

The previous Act had been misinterpreted by the U.S. Supreme Court shortly after it’s enactment in the early 90′s to place the focus on first establishing if the individual worker was “disabled enough” to qualify under the Act, instead of the Congressional intent of focusing on the discrimination and the reasonableness of accommodations that would be required to allow the worker to function in the job.

People with Multiple Chemical Sensitivity were universally unable to meet the definition of disability due to lack of official recognition of MCS by the mainstream medical community, and their cases were dismissed.

Under the Amended Act, this will no longer be so much of an obstacle. The focus has now shifted to determining if discrimination has occurred and if it there is a reasonable method of accommodating the employee without undue burden to the employer, rather than analyzing the claimed disability of the employee. This should make things a bit easier for people who are still trying to hold onto their jobs who have MCS.

Although many MCS sufferers will still require such extensive accommodations that it may not be realistically possible for the employer to meet their needs, there are others for whom some simple things, such as not placing their workstation near other employees who wear fragrances, allowing them to work next to a window that can be opened, not placing them next to the photocopier, or allowing them to have a portable air filter machine in their workstation, may be possible. It may also be feasible to do some jobs, or at least portions of some jobs, from home.

Should you require an accommodation, you should request it in writing and cite the Amended Act as the basis for your request. Then try to get a meeting with the employer to see if you can jointly craft a solution. You may wish to consult with an attorney to assist you in trying to work things out with your employer.

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Michael Walkup 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.

Multiple Chemical Sensitivity and the ADA

Posted by Contributor

May 032009

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.

Model building for ADA access opens in Phoenix

Posted by Susie

Feb 112009

Eco-friendly interiors at the new Disability Empowerment Center of Arizona feature products and finishes with low emitting VOC’s, and offer safe rooms for individuals with chemical sensitivities.

The new Disability Empowerment Center of Arizona is being touted as a national model for accessible design. The 64,000-square-foot office building, located in Phoenix has a handicap accessible parking garage and plans for a 44,000-square-foot specialized sport and fitness center.

The center is a fully accessible, transit oriented, non-profit disability services campus serving the Greater Phoenix area. In addition to Arizona Bridge for Independent Living, the center houses the Arizona Center for Disability Law, Raising Special Kids, the Arizona Chapter of the National Multiple Sclerosis Society, Joni & Friends, the Statewide Independence Living Council, Arizona Autism United, the Brain Injury Association of Arizona, the Arizona Spinal Cord Injury Association, and Valley Center of the Deaf.

The center is an adaptive re-use of an existing 1970’s brick and stucco clad office building. The original structural skeleton was expanded to create the eco-friendly facility. The interior now has lots of light with floor to ceiling window walls, and solar shade screens on the east and west façade reduce solar heat gain and control glare. A central courtyard introduces natural light deep within the building, illuminating corridors and common spaces. Utility consumption has been minimized through the use of daylighing, low flow plumbing fixtures, indigenous landscaping, and a high-efficiency centralized mechanical plant.

Eco-friendly interiors feature products and finishes with low emitting VOC’s, and offer safe rooms for individuals with chemical sensitivities.

The unprecedented design fosters collaboration between similar disability oriented agencies. The building is designed around a system of barrier free interior and exterior circulation systems. Social interaction is facilited between agencies through exterior gathering spaces, a café, common classrooms, training facilities, a 180 person conferencing center, and a roof deck plaza overlooking the surrounding buttes. An on-site serving kitchen accommodates larger social gatherings and allows the center to host a variety of events specific to the disabled community.

Link

Chemical sensitivities in the workplace

Posted by Susie

Jan 272009

The Job Accommodation Network is a great resource for people with Multiple Chemical Sensitivity who need to know about their disability rights in the workplace.

The Job Accommodation Network (JAN) is a service provided by the U.S. Department of Labor’s Office of Disability Employment Policy. JAN’s mission is to facilitate the employment and retention of workers with disabilities by providing employers, people with disabilities, their family members and other interested parties with information on job accommodations and related subjects. JAN represents the most comprehensive resource for job accommodations available.

If you have chemical sensitivities and are having a difficult time with exposure to toxic chemicals at work, including toxic perfumes and fragrance, JAN is the resource for you.

You can start with a presentation by Tracie D. Saab, M.S., who shares a wealth of information on Chemical Sensitivities in the Workplace. It’s an hour long presentation and cover topics such as your rights under the Americans with Disabilities Act (ADA), how to seek a diagnosis from a physician to present to your employer, how to inform your employer about your rights to a safe environment, and much more. Saab also covers information to help your employer create a safer environment for you and all employees, choose non-toxic cleaning supplies, maintain proper air systems, and create no-fragrance policies.

The JAN website is full of information about Multiple Chemical Sensitivity, which you can print out and share with your physician, employer, human resource officer and others who need an education about MCS. Here’s a sample:

MCS Research and Definition

The medical community has long questioned the etiology of Multiple Chemical Sensitivity (MCS) or Environmental Illness (EI). According to Cynthia Wilson of the Chemical Injury Information Network, as long ago as the 1950′s physician’s recognized that people were becoming sick due to their environment (http://www.ciin.org). There have been many theories regarding the cause of MCS but due to the lack of reliable scientific research, the medical community and the general public have failed to recognize the physiological effects of chemicals on the body.

In an article providing an overview of MCS, Cynthia Wilson states, “The latest research strongly suggests that chemical sensitivity is most probably some combination of central nervous system damage and enzyme deficiencies that can also cause problems with the endocrine and immune systems. Chemical sensitivity is more often than not characterized by real, verifiable damage to the body, though the implications of these anomalies are poorly understood and need additional research.” (http://www.ciin.org). A researcher by the name of Dr. M.B. Lax of the Central New York Occupational Health Clinic offered his assessment of the current struggle in understanding MCS. In an article entitled, Multiple chemical sensitivities: The social construction of an illness, he wrote, “Multiple chemical sensitivities (MCS) has emerged as an important and highly controversial issue in occupational health. Debate centers on whether the illness is “physical” or “psychological.” A strong corporate-backed campaign has framed the debate and has pushed MCS advocates into a strategy of “proving the physical” nature of MCS.”

An article published in the Archives of Environmental Health (Multiple Chemical Sensitivity: A 1999 Concensus. 1999. Vol. 54, 147-149) provides information regarding a consensus reached by medical professionals who have agreed upon specific criteria to be used in determining a diagnosis of MCS based upon a study by Nethercott et al. published in the Archives of Environmental Health (Multiple Chemical Sensitivities Syndrome: Toward a working case definition. 1993. Vol. 48, 19-26). The criteria, in brief, require that symptoms are reproducible with repeated chemical exposure, the condition is chronic, symptoms result from low level exposure, symptoms improve or resolve when the irritant is removed, response occurs to multiple chemically unrelated substances and symptoms involve multiple organ systems.

Symptoms and Limitations

MCS or EI may develop from exposure to substances in the environment and may result in intolerance to even very low level exposure to chemicals. Symptoms can occur in more than one organ system in the body, such as the nervous system, the lungs and the vascular system. An individual may be exposed through contact with, ingestion of or inhalation of a specific or multiple irritants.

Limitations experienced due to MCS or EI are experienced by each person individually so it is important to evaluate each situation independently. Some of the more common symptoms that develop from exposure to problematic environmental substances may include one or many of the following: headache, nausea, respiratory difficulties, fatigue, dizziness, tightening of the throat, chronic laryngitis, difficulty concentrating, memory loss, rash or hives, arthritis-like sensations or muscle pain. Problematic environmental substances may include: fragrance chemicals used in perfumes, colognes, cleaning products and deodorizers; pesticides; fumes from building products, new furniture and carpet; and tobacco smoke among other irritants.

Accommodations for someone with MCS, should be considered on a case-by-case basis. The following pages provide accommodation ideas and product referrals based upon a non-inclusive list of functional limitations. The material is provided for informational purposes only and should not be considered absolute solutions to all accommodation situations. In addition, you can find more information at JAN’s A to Z Web page at: http://www.jan.wvu.edu/media/atoz.htm.

Please select the limitation that corresponds with the individual needing an accommodation below.

Individual has difficulty working with or around irritants.

Questions to Consider

Accommodation Examples

Organizations