‘Home sweet home’ can become un-sweet very quickly indeed when the physical environment you’ve worked hard to create becomes a source of environmental toxicity. Chemicals, smoke, pet dander, and mold, along with other allergens and irritants can make a person’s life miserable. If you live in a private home, the solution is clear: get rid of the cat, remove the plant or bush, and use environmentally-safe and hypoallergenic products for cleaning and exterminating. In a multifamily residential community such as a co-op or condominium, however, eliminating those irritants can be more difficult. The pet may belong to your neighbor; the landscaping choices may not be your domain; and the chemicals used by the exterminator may be out of your control.
But difficult or not, condo and co-op boards have just as much responsibility to address — and ameliorate, if at all possible — residents’ environmental sensitivities, as they do a person’s need for a wheelchair ramp or large-print meeting minutes.
Are Environmental Irritants a Cause for Disability?
According to Ellen Shapiro, a principal at the law firm of Goodman, Shapiro & Lombardi, which has offices in Massachusetts and Rhode Island: “Multiple chemical sensitivity in itself is considered a disability. The Department of Housing and Urban Development (HUD) administers all these issues. They take the position...that what they refer to as ‘environmental illnesses’ are legitimate. The definition of a disability under HUD — and that’s the definition we use — is a disability that substantially limits a major life activity. HUD rules apply nationwide. States may expand upon them, but not diminish them.”
The legal framework under which we consider disabilities is further defined under the Americans With Disabilities Act (ADA), explains Mark Hakim, Of Counsel at New York-based law firm Schwartz Sladkus Reich Greenberg & Atlas. “The Americans With Disabilities Act, as amended from time to time, is a federal law protecting those with legal disabilities,” he says. “Under the ADA, a person with a disability is someone who has a physical or mental impairment that seriously limits one or more major life activities, or who is regarded as having such impairments. [It] includes physical or mental impairment that substantially limits one or more of a person’s major life activities such as breathing, seeing, hearing, walking, sitting, standing, sleeping, caring for yourself, lifting, or learning. It also requires having a record of an impairment and/or being regarded as having an impairment. Asthma and allergies are generally considered disabilities under the ADA. Respiratory and other conditions caused or exacerbated by smoke and chemicals may also constitute a disability under the ADA.”
Lisa Magill, Of Counsel at Kaye Bender Rembaum, which has offices in Pompano Beach and Palm Beach Gardens, Florida, points out that the criteria for designating an impairment are “very subjective, as it’s defined by a medical professional of the person seeking redress.” This factor in determining disability can put a great deal of uncertainty on the co-op or condo association dealing with an issue of environmental sensitivity.