4-11-16; Hello From RIMS!!; Brad Smith on Fragrance-Free Workplaces; Kevin Boyle on Surveillance in Defending EPLI claims and more
/Synopsis: Hello From RIMS!
Editor’s comment: Keefe, Campbell, Biery & Associates is in San Diego for the National RIMS Conference this week. It is a wonderful event and we wish you were here! We will still be around for a couple more days—if you are in town, please send a reply!
The Dynamic Speaker Trio
Today’s General Session featured their much anticipated TED-Style keynote speakers. Each speaker offered their unique brand of insight including the Psychology of Illusion from Vinh Giang, a glimpse into 3D Innovation with Scott Klososky and fine tuning our Lie Spotting skills with Pam Meyer.
Exhibit Hall Opens
The Exhibit Hall opened today and attendees eagerly navigated the busy show floor to network and learn more about innovative solutions from nearly 400 exhibitors. They also revealed their newly-designed RIMS Hub that highlights the Society’s mission and strategic goals.
And the Winner is ...
Congratulations to all of the RIMS '16 award winners and Hall of Fame inductees recognized at the Awards Luncheon. Congratulations to all of the RIMS '16 award winners and Hall of Fame inductees recognized at the Awards Luncheon. Congratulations to all of the RIMS '16 award winners and Hall of Fame inductees recognized at the Awards Luncheon. Read more.
Next Year, RIMS is in Philly! Be There or Be Square!!
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Synopsis: Can You Maintain a Fragrance-Free Workplace? Our Best Thoughts on How to Legally Navigate Implementing a Fragrance-Free Workplace to Avoid an Allergic Workplace. Analysis and comment by Bradley J. Smith, J.D.
Editor's Comment: At first glance, implementing a fragrance-free workplace policy does not seem like a huge deal; just do it. However, upon a thorough analysis, implementing a fragrance-free workplace requires narrowly navigating laws, personal preference, and basic human hygiene necessity. It also requires the implementation of an employee culture change, which requires that employees buy-in to the policy.
Even employees with the utmost concern for their co-workers health, sometimes fail to recognize that the personal care products they are using on a daily basis may have an adverse effect on their colleagues. Particularly, these products could cause respiratory distress leading to acute asthma attacks and even hospitalization. This can occur as a result of lotions with different types of scents and perfumed hand sanitizers. Additionally, “deodorizing” trash bags can cause issues for employees. Fragrance issues could even cost you. According to reliable sources, asthma is responsible for approximately 14.2 million missed workdays every year, which has obvious negative effects on productivity and healthcare costs for an organization.
Notably, issues to consider are employees that have asthma or allergies that culminate in those employees’ breathing issues. Eliminating fragrances that aggravate breathing difficulties can decrease those risks on the job, which, in turn, can lead to more productivity and less missed workdays.
Another consideration is the Americans with Disabilities Act (ADA). When an employee with fragrance sensitivity asks for a reasonable accommodation under the ADA, that request should be taken seriously. An employee’s fragrance sensitivity could have legal protections under the ADA. A prudent employer will seek to accommodate an employee with fragrance sensitivity regardless of whether their symptoms meet the definition of “disability” as defined in the ADA. Options for accommodating fragrance sensitivities can include:
Moving the employee’s work location;
Providing an area with a HEPA-filter or clean-air filter;
Creating a fragrance free specific work location area;
Using unscented cleaning products;
Creating a fragrance-free bathroom or lunch/break room;
Work from home; or
Providing private area on site for the employee to work out of reach of any fragrances.
So why not just implement the fragrance-free policy for your employees? It not only takes an in-depth analysis of particular laws, but also requires that your employees buy-in to the policy. Initially, you will have to explain to employees in a written document the purpose of establishing the policy. Next, you will have to institute complaint procedures. There will need to be follow up related to those complaints. One great way to get employees to buy-in is to educate them on the topic. The Society for Human Resource Management has excellent articles and other research to provide your employees with educational information. Also, articles and blogs such as this can help to inform your employees.
The policy will also require flexibility due to other considerations related to the ADA. For instance, if an employee has certain topical medications or other required ointments that may violate the fragrance-free policy, then the employer may need to accommodate that individual’s use of the product under the ADA. Otherwise, if employers blindly apply the policy against the employee’s request for a possible reasonable accommodation, then the employer could be violating the ADA.
In contrast, employers occasionally deal with employee odor issues, which can also be a very sensitive topic to address. In doing, so the employee with the odor issue should be advised in a thoroughly reviewed manner of the issue. The employer should also engage in an interactive discussion with the employee about how to resolve the odor issue.
Whether you are dealing with implementing a fragrance-free workplace policy, or dealing with an employee with odor issues, a reasonable and sensible approach to the subjective issues your workforce faces will likely be required.
The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding general litigation defense and employment law defense at bsmith@keefe-law.com
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Synopsis: Keep Your Cameras Rolling: Video Surveillance Nixed Plaintiff’s Title VII Claims. Research and analysis by Kevin Boyle, J.D.
Editor’s Comment: Last week, the Seventh Circuit Court of Appeals affirmed Defendant’s summary judgment after surveillance video showed Plaintiff exaggerated her claims and she could not prove that racially offensive conduct came from management. In Chaib v. The GEO Group, Inc., No. 15-1614 (April 6, 2016), Plaintiff alleged a Title VII and 1981 action claiming Defendant terminated her due to her gender, race, and national origin.
Plaintiff filed multiple racism and harassment claims prior to her worker’s compensation claim in 2012 when a metal gate struck her head. She complained of headache, blurred vision, nausea, dizziness and vomiting. However, Defendant became suspicious during her treatment that she was malingering and hired an investigator to videotape her driving her car around town. Defendant’s video surveillance demonstrated Plaintiff improperly extended her medical leave from her work-related injury by exaggerating her alleged impairment that she claimed precluded her from any normal activity including minimal exertion. The video also was given to the treating neurologist who opined that she was malingering.
The Court held she failed to prove that a reasonable jury could find Defendant unlawfully discriminated against her or thattermination was motivated by discriminatory animus. First, she offered no direct evidence that Defendant admitted to discriminating against her. Even though Plaintiff alleged that she was subjected to a series of racially offensive conduct from her co-workers prior to her worker’s compensation injury, she failed to link those individuals to management’s decision to terminate her based on her own misconduct. Management terminated her for “unbecoming conduct” rather than for falsifying her records.
Also, the federal court ruled she could not establish a prima facie discrimination case based on indirect method of proof, where she could show neither that her misconduct was consistent with Defendant's employment expectations, nor that others accused of similar misconduct received more favorable treatment. The information Defendant collected, i.e. the videotape, supported a sufficient basis for termination. She simply did not present evidence for a reasonable jury to find Defendant terminated her for discriminatory reasons, and therefore, summary judgment was properly granted to Defendant.
The research and writing of this article was performed by Kevin M. Boyle, J.D. Kevin can be reached with any questions regarding general litigation defense, workers’ compensation defense, and employment law defense at kboyle@keefe-law.com.