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An HR dilemma – Hygiene in the workplace

July 10, 2019

By Anthony Kaylin, courtesy SBAM Approved Partner ASE

Bad news for consumer product suppliers, it appears that deodorant use is declining in the United States.  Approximately 40% of people ages 18 to 24 years old haven’t used deodorant or antiperspirant in the last month. 48% say they haven’t bought those products in the past year. 31% of those 25-34 are also not using deodorant. The data comes from polling company YouGov, which surveyed more than 52,000 people on the issue. When asked why not use deodorant, respondents generally stated that they didn’t need it.

What should an HR representative do when an employee comes to work smelling?   First, HR should review its dress code policy. The dress code should not just cover clothing, but also hygiene.  A dress code “typically requests that employees exercise good judgment regarding their appearance and hygiene,” said Joseph H. Harris, an employment law attorney with White Harris in New York City. “Additional language may express the employer’s expectation that employees will use deodorant or antiperspirant to minimize body odor.”

Setting specific standards ensures consistency in expectations.  “If you are [discussing body odor with a worker], it is very helpful to refer back to a policy,” said Danielle Urban, a partner in the Denver office of Fisher & Phillips, a national labor and employment law firm. 

In addition, these policies should also cover perfumes and other fragrances which may impact the sensitive or allergic employee.  Think of today’s trend toward the open work environment.  There will be many odors and smells, and HR must find a way to reduce any friction among employees.

When an employee makes an HR complaint, it should be treated like any other investigation.  First, ensure that there is no hidden agenda.  Then conduct a fair and impartial investigation.  “If the employee is not aware [that] the body odor is the reason people cringe when they enter a room, the employee could incorrectly blame their co-workers’ or manager’s reactions to them on something else completely. This is one reason it should be addressed as soon as possible,” says Devora Lindeman, a partner with the employment law firm Greenwald Doherty LLP in New York City.

HR should not assume that simply failing to use deodorant or washing is the cause for the body odor.  There could be an ADA issue.  There have been cases where body odor led to a court ruling that it is a perceived disability.  Further, employees taking initiative and using air fresheners and other smell reducing items, for example, incense, has given rise to harassment claims by those emanating the body odor.  One employee was fired for allegedly harassing an employee who smelled by putting air fresheners in the office to combat a coworker’s smell.  This led other employees to also do so.  She claimed her termination was illegal because of her association with an individual with a disability, the employee who smelled.  She claimed that the odor was so severe, that the employee fell under the ADA as an individual with a disability.

HR should review and update its dress code policies with legal counsel to ensure it is not leading the employer down a path to being sued.  And when investigating, be firm and clear about the policy.  Finally, if no complaint is made but it appears that air fresheners and other odor reducing devices are being used, do not assume it is because of the smelly lunches, like tuna fish, and conduct an informal investigation to determine the causes of the actions.

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