- M. Lee Smith Publishers

<p><i>Excerpted from <a href="http://www.HRhero.com/nvemp.shtml" target="new">Nevada Employment Law Letter</a>, written by attorneys at the law firm Lewis and Roca LLP.</i></p>

<p>Among the many matters that prompt employee consternation, pesky smells and offensive odors can be the most difficult to deal with, both from interpersonal and policy perspectives. How can an employer deal with an employee who literally stinks - and not make a smelly situation even worse?</p>

<p><b>Peww! What to do?</b></p>

<p>Fragrance is supposed to enhance the wearer''s allure, but sometimes repulsion is the unfortunate response to a co-worker''s perfume. Sometimes, too, a fragrance intended to enchant is unavoidably repugnant to those who work around the employee who douses herself in a particular perfume.</p>

<p>Years ago, I was called to intervene when one staff member announced she could no longer tolerate her co-worker''s aroma. The employee - let''s call her Gayle - personally kept a particular perfumery profitable with her extravagant use of its fragrance. The dream customer of every fragrance-counter consultant, there was no element of the perfume''s bath and body line that she failed to indulge herself with on a daily basis.</p>

<p>Before she arrived at work, Gayle lavished herself with perfumed soap, talcum powder, and bath powder, luxuriated in its body lotion, immersed herself in a cloud of various eaux (cologne and toilette), and dabbed a bit of perfume behind each ear, just to emphasize the point. A worker whose desk was next to Gayle''s complained that she couldn''t concentrate, had persistent headaches, and even approached nausea because of the pervasive fragrance of Eau de Gayle. I have to admit that when I approached Gayle, I could literally feel the air about her throb with the potency of her aroma.</p>

<p>After discreet and compassionate consultation, Gayle understood that her affection for her favorite fragrance was making her unpopular with those who came within eight feet of her. Understandably, she wasn''t thrilled to be told that things would be better if she would forgo at least four layers of her fragrance regimen. The perfumery sold fewer items from its comprehensive fragrance line; Gayle toned down her olfactory presentation; and we all got back to work.</p>

<p><b>Perfumes Are Just the Beginning of The Problem</b></p>

<p>Employees also suffer when their co-workers bring bad breath and staggering body odors to the workplace. One community - Murfreesboro, Tennessee - went so far as entering an edict that its city employees must "smell good while on the job." The city''s "good hygiene" policy states: "no employee shall have an odor generally offensive to others." When asked how the new rule would be enforced, one city councilman answered, "We''ll know it when we smell it."</p>

<p>Unlike Gayle, who should have been thinking of the modern fresh and neutral scents, odors your employees may emit due to poor personal hygiene or even chronic medical conditions like obesity or colostomy bags present trickier issues to deal with. That''s particularly true if the reason isn''t something the employee can control on his own.</p>

<p><b>How To Keep the Smells Under Control</b></p>

<p>As with almost every employee gripe, the best approach when confronted with a worker who reeks is to treat it as you would any other job-related performance issue. Explain what the problem is - specifically and with direct reference to your dress and grooming policy, if you have one. Be compassionate, and talk with the employee in a setting and manner that ensures privacy and confidentiality.</p>

<p>One caution, though. The Americans with Disabilities Act (ADA) may govern these matters. If so, you may be dealing with more than just co-workers'' heightened sensitivities. Even if the foul-smelling employee isn''t technically disabled, a clever plaintiff''s lawyer may argue that you, as the employer, regarded her as having a disability. Therefore, any disciplinary actions could be subject to ADA guidelines.</p>

<p>Remember that under the ADA, your obligation goes beyond simple nondiscrimination. You have an affirmative obligation to accommodate the needs of employees with disabilities and to facilitate their economic independence. You shouldn''t suggest possible medical causes for body odor because of the potential ADA implications; you''re not obligated to accommodate a disability that you''re not aware of. If the employee volunteers that her odor is medically related, you should ask for a physician''s certification in order to determine whether an ADA-protected disability is presented and what, if any, reasonable accommodations need to or can be made.</p>

<p>Don''t suggest that cultural differences may be contributing to the smell problem, either. Making such comments may lead you afoul of federal or state equal employment opportunity laws.</p>

<p><b>The Nose Knows!</b></p>

<p>Take a deep breath and hope that with care and open communications, you''ll clear the air with your fragrance-challenged employee. Perhaps fresher days will be ahead.</p>

<p>Copyright 2004 M. Lee Smith Publishers LLC. This article is an excerpt from *Nevada Employment Law Letter.* Read more about the print newsletter and the Nevada attorneys who write it: <a href="http://www.HRhero.com/nvemp.shtml?HLe" target="new">www.HRhero.com</a>.</p>

<p>The contents of Nevada Employment Law Letter are intended for general information and should not be construed as legal advice or opinion.</p>

<p><!--M Lee Smith Publishers--></p>