Need to resign - health concern ignored by HR

[PDS321]

Hello. This is a strange one.
I feel I have to resign from a good job that I enjoy because of a co-worker's toxic amount of cologne. Multiple complaints have been filed with managers and HR by no less than 3 employees over the course of 2+ months.

This co-worker was recently moved down to the desk next to mine. The co-worker exercises vigorously to a sweat 3 times per day during break times. He admits he does not bathe regularly, if at all, but instead uses an unbelievable amount of cologne. The cologne gives me instantaneous headaches - not migraines, but quite severe. I have become nauseous in my own waste basket.

After addressing the complaints with the co-worker several times, HR's final response to me was that none of the managers or HR personnel have ever smelled anything when dealing with this co-worker, and therefore do not think there is an issue. I admit, that is a clever way to make the problem go away, at least on their end, but my headaches continue.

My request for a new desk location was denied. My request to speak to the employee personally and sympathetically was also denied.

I visited an allergist who insisted that she write a letter to my HR department, citing the excessive cologne as a health hazard. She also suggested I contact a lawyer for a possible lawsuit. That idea does not excite me, but I would consider it.

The headaches are severe, and I cannot face many more days of them. The only jobs available right now in my field, and they are slim, are contracted positions without any benefits. Mine is the sole income supporting my family of four (2 young children).
Any suggestions?
Thank you.

[eerelations]

If you can get a medical doctor (not an allergist but an actual MD) to write a letter citing that you have allergies to this scent (not that it's a health hazard or that you could have/become allergies/allergic, but that you are suffering real actual medically-defined allergic reactions), then you may have some protection under the ADA. Your employer will then be obliged to accommodate your allergies...if it can do so without suffering undue hardship ("undue hardship" basically means big loss of money/customers/business).

So really all your employer will have to do is move your desk to a place where you don't smell this person's scent. Your employer will not have to force the person to stop wearing the scent, it will not have to fire the person, and it will not have to apologize to you.

If after you present your employer with the doctor's letter as described above, your employer doesn't do anything, you should seek the advice of an attorney experienced in ADA issues.

[ecmst12]

Since when is an allergist not a doctor?

[PDS321]

The allergist/immunologist I visited is an MD. Maybe some allergists/immunologists aren't - I don't know.
I think my burning eyes, inflamed throat, nausea, and headaches (I know, I only mentioned headaches in the previous post) might not be considered allergies as much as sensitivities. Either way, it's getting really tough to bear.

I would hope that a letter from the MD would serve as enough encouragement to relocate me. It's not terribly important where I sit in the building.

I am really starting to lean towards asking, via an attorney, for some sort of agreement for resigning. I'm not looking for bags of money but I wouldn't turn it down. I would ask that my health insurance continue until I can find a new position with benefits, or for an agreed amount of time (say 6 months). I should have mentioned that when HR told me their final position was that they have never smelled anything emanating from this person, and that they no longer considered it an issue, I was told that they did not expect to hear from me again regarding the subject. I have to admit, that did anger me.

I really appreciate the feedback. Thanks.

[ecmst12]

Asking for your desk to be moved definitely sounds like a reasonable accomodation to me. Not sure if your allergies would really qualify under the ADA, but can't hurt to try.

[PDS321]

I asked early on to be moved away to a different desk but was denied. (That was a shocker actually.) I suspect that layoffs are coming again, and HR's response is just buying some time. Not much I can do to control that.
Yes, you are right though - asking to be moved should be an easy accomodation and solution.

[You Are Guilty]

Allergies can be considered a "disability" under the law, but it's far from "get a doctor's note and you're set". Here's a bit of the case law straight from the government:

Impairments that preclude an individual from performing
a broad range of jobs in various classes also may substantially
limit the major life activity of working. For example, an
individual could be substantially limited in working if (s)he has
a severe allergy to a substance found in many high-rise office
buildings. If the allergy prevents the individual from working
in many of the high-rise office buildings in the geographical
area to which the individual has reasonable access, then the
individual is substantially limited in working. This is so
because a great number of positions within many classes of jobs
would be performed in those buildings. 29 C.F.R. pt. 1630 app.
§ 1630.2(j).

By contrast, a severe allergy to the peculiar type or
amount of dust found within one office is not an impairment that
substantially limits the ability to work. Wright v. Tisch, 45
Fair Empl. Prac. Cas. (BNA) 151, 1 AD Cas. (BNA) 1157 (E.D. Va.
1987). In Wright, the court determined that a complainant's
inability to tolerate the dusty environment in the unit where she
worked did not constitute a disability. 45 Fair Empl. Prac. Cas.
at 152-53, 1 AD Cas. at 1158. The court noted that none of the
complainant's other work activities was affected by her allergy.
45 Fair Empl. Prac. Cas. at 152, 1 AD Cas. at 1158. It also
noted that the complainant's allergy did not restrict her from
working in other offices with dust and that she had, in fact,
worked in the presence of dust in other offices within the
agency. Id.

http://www.eeoc.gov/policy/docs/902cm.html

[eerelations]

Originally Posted by ecmst12

Since when is an allergist not a doctor?

Some naturopaths/homeopaths call themselves doctors and/or allergists, even though they're not MDs. Their words don't carry as much weight as MDs.

[commentator]

It comes to me that somewhere I have seen the "excessive cologne on co-worker" issue cited as creating a hostile working environment, but you guys will know much more about that than I.

What I would like to tell this OP is that if you quit, even with an attorney at your side, I hope you realize that the employer is under no compulsion to do anything toward giving you a severance or paying anything but the COBRA required, (not sure how your resignation would affect COBRA.)

It appears you would like to quit, and negotiate some sort of severance package with them because you had to quit due to the perfume sensitivity. They are very unlikely to do this for you, without a real fight, anyway. They are not compelled at present, and would probably say, No, so sue me.

You would, with a doctor's statement have about enough leverage to get them to move your desk, maybe, but not to force let you go with a severance and paid insurance for six months.

And if you quit your job for this reason, it is also a pretty slim possibility you'd even qualify for unemployment insurance. This is probably why the employer is being so very obtuse about complaints against this employee, he's hoping someone will quit, and he won't have to lay anyone off and give them unemployment benefits.

[PDS321]

What's an OP?
I see your points, as hard as they are for me to accept. The few lawsuits I've read were actually filed after the employee was fired for missing too much work (due the sensitivity to the harsh fragrance). I have not gone home early yet, even after I vomited, but I come close every day. Trying to get fired is not in my plans.
I would not file for unemployment; I would immediately need to start working somewhere else, and the only available positions right now are contracted jobs without benefits. Unemployment would not be an option for me - it doesn't pay the bills.
Meanwhile, I have splitting headaches. Not sure really sure what to do.
I was recently informed that the odorous co-worker threatened a harrassment claim if they brought up his offensive odor again. That is when HR told me the issue was dead, regardless of my sensitivity to the odor.
Thanks again for responses.

[cbg]

OP = Original Poster. In other words, you.

Since it is possible for scent allergies to be considered disabilities under the ADA, and since you have been told flatly that nothing more will be done, you could conceiveably discuss this with the EEOC and see what they think.

[eerelations]

Maybe the OP's HR rep needs to learn that being repeatedly asked to wear less perfume does not a harassment case make.

[You Are Guilty]

There is always the non-litigious "Plan B": wear a giant clothespin on your nose whenever you are at your desk. Eventually management will take notice and until then, problem solved!

[ecmst12]

Or even better, a breathing mask

[PDS321]

I hold a sturdy paper towel in front of my mouth and nose for a great deal of the day, and it seems to help a little. I used to have a little 3 inch fan that at least moved some air around, but HR made me remove it after I complained.
A breathing mask is next. I could just say I am afraid of getting H1N1 if anyone asks, and oh, they willl ask. (Or I could just say that the guy behind me stinks.)

I'm waiting for a return phone call from an attorney. Maybe there is something that can be done.