By Deborah Hopkins, November 13, 2019
You’ve probably all dealt with this situation at some point: You’re sitting on an airplane, bus, or subway train, or at a concert or in church or in a meeting, and you catch an odor from the person sitting next to you. It’s not a temporary odor that’s the result of an accidental gas release from an upset stomach. It’s a fixed odor that’s likely related to bad hygiene.
I remember one time flying on Southwest Airlines and being so grateful that the seats were not pre-assigned; a seatmate who had some very unpleasant odors settled in next to me and I was able to move without having to endure a 3-hour flight in that seat. With my overly sensitive sense of smell, I had to get out of there ASAP. While it might seem mean to say it’s difficult to be around people with bad odors, I’m not saying it to be mean. I think most readers would agree it can be a real challenge to be exposed to people with certain hygiene issues.
In many of these unpleasant situations, the arrangement is temporary, and in a number of cases you are able to remove yourself from the situation like I did on my flight. But what happens when the problem is coming from an employee or coworker who you have to see – and work around – every day?
Believe it or not, we have MSPB cases on the topic. A very old, foundational case addressed the matter of an employee who had unhygienic personal habits which went beyond body odor and included intentional defecation of himself in the workplace. The agency removed him on four charges including (1) non-compliance with work standard; and (4) unhygienic personal habits. The presiding official – who we now call the Administrative Judge – concluded that the appellant’s unhygienic personal habits alone would have been sufficient to remove him. Interestingly, the employee argued that his disability (colitis) caused the misconduct, the MSPB didn’t buy that argument and agreed with the presiding official:
The evidence of record plainly shows the demoralizing and unhealthy environment created by appellant’s personal habits. The record also reflects that the agency frequently counseled appellant as to his hygiene and that appellant made no effort to change. The agency endured appellant’s poor performance and unhygienic habits for many years. It need not exercise forbearance indefinitely. Gertzman v. INS, 9 MSPR 581, 583 (Jan. 19, 1982).
It’s true that sometimes body odor is disability-related, and you may need to consider an accommodation. However, that was not the case in Gertzman.
In another old case, the agency removed a probationer for failure to improve her personal hygiene after repeated warnings and counseling from her supervisors and after several complaints about her odor from her coworkers and members of her trade. As many of our readers know, if a probationer is removed, she has very limited appeal rights to MSPB and may only appeal if her removal was based on partisan political reasons or marital status. 5 USC 7511(a)(1)(A)(i); Ney v. Commerce, 115 MSPR 204 (2010). In this case, the appellant claimed she had hygiene and odor issues because her status as an unmarried person prevented her from obtaining resources that would allow her to improve her personal hygiene. The MSPB didn’t buy that argument, either, but you can’t blame a person for trying. Hilden v. USDA, 8 MSPR 300 (Oct. 1, 1981).
I’ve got more. There’s the Bureau of Prisons supervisor who for years urinated in a mop closet – not into a bucket but onto the closet floor – rather than walk to the restroom to use the proper facilities. As if that’s not bad enough, he also encouraged his subordinate to do the same. His demotion for Conduct Unbecoming a Supervisor was upheld. Hutchinson v. DOJ, 211 MSPR 77 (May 5, 2014). Then there’s the food inspector who was suspended for “improper conduct” because he intentionally passed gas around his coworkers on the food inspection line, and then asked them to smell it. Douglas v. USDA, AT-0752-06-0373-I-1 (2006)(ID).
What about the employees who bring critters in to the office with them? No, not emotional support animals (that’s a different article) but things like bedbugs. Can you tell the employee they are prohibited from bringing bedbugs in to the office? Well, sure. As long as you have a business-based reason, you can set a workplace rule for an employee, and there is most certainly a business-based reason for not wanting bedbugs in a federal office. Tell the employee, then follow up in an email: “Do not bring bedbugs to the office.” If necessary, you can even do an indefinite suspension until the employee demonstrates medically she is free of the little critters. See, e.g., Pittman v. MSPB, 832 F.2d 598 (Fed. Cir. 1997); Moe v. Navy, 2013 MSPB 43 (June 14, 2013), cases which don’t deal with bedbugs but say that an agency can indefinitely suspend an employee, pending inquiry, for psychological or other medical reasons if the agency has a sufficient objective basis for doing so. We never have to tolerate unsafe or, for lack of a better term, unhygienic, conduct in the workplace. Hopkins@FELTG.com