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California Mold Attorney

Employee's Respiratory Ailment Stemming from Workplace Mold Lands Employer in Court for Alleged Violation of Americans with Disabilities Act

By Attorney Jennifer Carsen, April 1, 2004

A federal court ruling demonstrates how workplace mold as a health and safety problem can mushroom into complaints under the Americans with Disabilities Act.

Employee Suspects Mold in Building

While working for the city of San Antonio, Texas, Dorothy Burnley was diagnosed with a respiratory ailment called chronic rhinitis and "sick building syndrome." Burnley's conditions allegedly resulted from exposure to certain molds in her office building, and her doctor instructed her not to return to work until the mold and fungi were abated.

In response, the city temporarily moved Burnley's office to another building while the problem was investigated and a mold abatement contractor was hired. The contractor issued a report stating the mold was successfully removed.

Around the same time, Burnley had surgery to remove mold growing in her nasal cavity, and she continued to be out on medical leave for several months.

ADA Lawsuit Filed

When Burnley returned to work, she claimed her respiratory problems continued and that the mold problem was never properly abated. She sued the city, alleging it violated the federal Americans with Disabilities Act (ADA) by denying her request for a reasonable accommodation—a mold-free workplace. The city argued the court should dismiss Burnley's lawsuit because she didn't show she was disabled or that her accommodation request was reasonable.

Court Green-Lights Case

A federal district court in Texas has now ruled Burnley's ADA claim can go forward. The court explained a reasonable jury could find that Burnley was disabled. That's because she had been diagnosed with a chronic respiratory ailment and may have even sustained permanent damage to her lung functioning and capacity. There was evidence her condition substantially impaired the major life activity of breathing. It will now be up to a jury to decide whether Burnley's proposed accommodation of a mold-free workplace was reasonable and feasible.

Accommodating Respiratory Problems

Although it remains to be seen whether Burnley will ultimately be able to prove her case to a jury, her lawsuit is a strong reminder of how workplace mold and other allergens can give rise to problems under federal and state disability bias laws.

A variety of medical conditions can affect an employee's respiratory system and limit a major life activity, such as breathing or sometimes even mobility. If a workplace mold problem or allergen causes the respiratory impairment—or exacerbates the condition—it will be critical to explore whether this trigger can be removed from the environment. Alternatively, you may be able to move the employee away from the problem, such as by relocating their office.

The Job Accommodation Network has a fact sheet with details on accommodating workers with respiratory problems.

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