Lourdes Salvador's Column
...Co-founder of MCS America discusses the latest Multiple Chemical Sensitivity issues.
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Appeals Court Rules in Favor of Teacher with Sensitivity DisabilityAppeals Court Rules in Favor of Teacher with Sensitivity Disability
by Lourdes Salvador
Denise Frisino, a Seattle middle school teacher diagnosed with respiratory sensitivity to molds, chemicals, and other environmental toxics was terminated for failing to report for work after reasonable accommodation were not provided as required by law.
Frisino acquired the respiratory illness in response to chemical toxins in the school environment where she worked. Consequently, she became sensitized to airborne toxins, dust, mold, and other irritants.
The school district attempted several accommodations including an air filter, revised cleaning schedule, and different classroom. After Frisino´s condition worsened, her physician told the school that she would require a "clean room". A clean room is a room free of chemicals, molds, pesticides, and other irritants.
Eventually, Frisino transferred to a high school where she suffered respiratory problems from visible mold and blackened and missing ceiling tiles in her new classroom.
The school hired GlobalTox, an industrial hygiene and toxicology consultant which investigated and concluded that the school was generally safe for students; however was a danger to those with severe respiratory illnesses.
The school had visible mold cleaned in the teacher´s classroom and around the school. walls, air ducts, and other places mold commonly grows were not cleaned.
Frisino left work to go to the emergency room due to respiratory distress and did not return, asking that the mold be properly remediated. When the school insisted she return anyway, she filed a worker´s compensation claim.
Frisino´s personal pulmonary specialist found evidence that her illness was due to work-relation conditions. An independent medical exam resulted in a diagnosis of multiple chemical sensitivity and a recommendation that she be assigned to a work space with good ventilation and no evidence of odors or strong chemical smells so she could return to work.
Employers are required to reasonably accommodate a disabled employee, unless doing so would pose an undue hardship for the employer. The school did not comply with the doctor´s recommendation. Instead Frisino was terminated for failure to return to work.
Frisino filed a lawsuit against the school for failing to provide reasonable accommodations, employment discrimination, retaliatory discharge, and intentional infliction of emotional distress.
After a summary judgment by the trial court, the State appeals court in Washington reversed the decision over concerns about material facts for both the reasonable accommodation and retaliatory discharge claims.
The appeals court said that questions remain as to whether Frisino was reasonably accommodated and if the school district put forth a legitimate, nondiscriminatory reason for the termination. Discharge for failure to return to work may not be justified in this case.
Frisino v. Seattle School District, Court of Appeals of the State of Washington, Division One, No. 63994-3-1 (3/21/11).
For more articles on this topic, see: MCSA News.
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