Food Allergies Under the ADA!!! What Your Organization Needs to Know

As Generation Z enters the workforce, a (not so) new issue is facing employers at a growing rate. The rate at which food allergies affect Americans doubled between 1997 and 2011, with nut allergies tripling during this period. Employers are now onboarding these individuals and should expect to see this continue to trend upwards.

The onus has historically been on the allergic employee to take on the responsibility of avoiding their allergen in the workplace, and allergic employees have been advised that their requests to avoid the allergen infringes on other employees’ “rights” and that the allergic employee is just “one person.”  Employers did not take requests for reasonable accommodations due to food allergies seriously, and courts interpreting the Americans with Disabilities Act (ADA) did little to encourage them. Before the Americans with Disabilities Act Amendments Act (ADAAA) of 2008, food allergies fell far outside the definition of a disability.

So, did something change?

After the ADAAA expanded the definition of “disability” to include “a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability,” employees with food allergies (whose allergic reactions could include anaphylaxis, vomiting, damage to the intestinal lining, or death) moved forward with claims that a food allergy is a disability under the definition set out in the ADAAA.  The courts were split initially, but case law has at this point established that a food allergy is a disability as defined by the ADA: even if the employee has only had two allergic reactions in 23 years, as the EEOC and a Michigan district court decided.

Employers are required by law to provide a reasonable accommodation for a qualified employee with a disability unless that accommodation poses an undue hardship to the employer. It has been well established that the effect on employee morale is not considered in determining whether an accommodation is an undue hardship. Employers should consider this before caving to employees who claim that accommodating the employee with the food allergy affects their “rights” when the accommodation merely interferes with a desire or preference.

Failing to accommodate could lead to a lawsuit

The EEOC issued a right-to-sue letter to a United Airlines pilot with celiac disease, who is physically unable to tolerate gluten. The plaintiff alleges that United Airlines provides meals to pilots but refuses to provide him with a gluten free meal. Proper nourishment on a flight is an issue of safety for an airline pilot. The plaintiff clearly has an ADA-defined disability, but how far does the employer have to go to make reasonable accommodations for an employee who must avoid a substance to which other employees are necessarily exposed? A Colorado district court will decide.

Employers must begin to be mindful of food allergies and develop strategies to address and accommodate allergic applicants and employees before obstacles develop and coworkers hold onto resentments. An initiative-taking approach will help employers comply with the ADA when employing individuals with food allergies and avoid EEOC claims and costly lawsuits.

Seek legal guidance before denying a request

When an employee is seeking an accommodation for a disability, you can rest easy when you have a subscription with myHRcounsel. With unlimited access to employment attorneys for answers you can rely on, you receive legal guidance on ADA and find the right solution for your business and your employee.