Accommodating Food Allergies in the Workplace
Once an employee establishes that he or she suffers from a food allergy, which is considered a disability under current federal law, the employer is obligated to engage in an "interactive process" with the employee to discuss whether there is a reasonable accommodation that would enable the employee to perform the essential functions of his or her position.
By Linda G. Burwell and Kellen Myers
Peanut allergies are no longer just the concern of elementary school cafeterias and school nurses. Food allergies in general are becoming a major concern for employers. While only about 4 percent of adults currently suffer allergies ranging from mild to life-threatening, the future workforce looks quite different. Twice as many children as adults suffer from food allergies, according to both the National Institute of Allergy and Infectious Diseases and the Journal of the American Academy of Pediatrics. Of these children, nearly 40 percent have a history of severe or anaphylactic reactions upon exposure. Anaphylaxis, the most severe of allergic reactions, has a quick onset and can cause death within 30 to 60 minutes of exposure to an allergen. Additionally, 30 percent of children suffering from food allergies have multiple food allergies. As these children grow and enter the workforce, the number of employees suffering from allergies will multiply, and the severity of allergies will drastically increase. Most employers do not currently have policies or procedures in place for managing employees with food allergies; soon, they will have no choice.
Historically, food allergies did not rise to the level of a disability under the Americans with Disabilities Act. For example, the pre-2008 ADA Amendments Act case of Slade v. Hershey involved an employee with a severe peanut allergy. The court determined the employee's condition did not meet the criteria of a disability under the ADA, because the employee could not show that the episodic physical impairment was substantially limiting. However, the ADAAA has greatly expanded the definition of a disability and made it easier for an employee to show that a condition is disabling within the meaning of the ADA.
Presently, the ADA extends coverage to individuals who have conditions that are "episodic or in remission," as long as the condition causes symptoms which affect a "major life activity" when active. In addition, under the ADAAA, employers can no longer consider whether the effects of the condition can be ameliorated through medication or whether other treatment can alleviate the symptoms of the individual's condition. These amendments make it harder for the employer to argue allergies are not disabling, even if symptoms only flare up when exposed to certain foods. The Equal Employment Opportunity Commission has now taken the position that allergies which produce life-threatening reactions are per se substantially limiting under the ADAAA. In March 2011, John Muir Health settled an EEOC disability lawsuit in which it agreed to pay $340,000 to eight healthcare workers whose job offers had been withdrawn after the hospital determined they had life-threatening latex allergies. As part of that settlement, the organization agreed to revise its policies "to ensure safeguards against potential latex-related disability discrimination."
As a general rule, once an employee establishes that he or she suffers from a disability under the ADAAA, the employer is obligated to engage in an "interactive process" with the employee to discuss whether there is a reasonable accommodation that would enable the employee to perform the essential functions of his or her position. However, such modifications must be reasonable. Modifications that are cost-prohibitive or very difficult to implement are generally not required. When applied to an employee with a food allergy, this task isn't a simple one and raises difficult questions. What accommodation would be considered reasonable for an employee with a food allergy? Is the accommodation even required for the performance of essential job functions? How will the accommodation affect other employees?
Adding to the complexity of this issue is deciding how to accommodate overlapping disabilities. Consider the employee who started bringing an "allergy-detection" dog to work after suffering a severe allergic reaction to paprika in a co-workers' chicken wings. The presence of the dog in the workplace then triggered an asthma attack in a third employee. So, the employer informed the employee with allergies that she could no longer bring the allergy-detection dog to work. The employee then files a complaint with the EEOC. Sound far-fetched? Well, this example is not hypothetical.
In this case, the employer may be able to deny the allergic employee the use of a service animal at work. Under EEOC guidelines, when an employee requests to use a service animal as an accommodation, the employer must consider whether the presence of a dog would pose an "undue hardship" on the employer or a "direct threat to the health or safety of your other employees or the public." Where an employee accommodation merely poses an inconvenience or an annoyance to his or her co-workers, the employer may have to grant the accommodation. Here, the dog posed a direct threat to the health of another employee, but more than that, this example illustrates the difficulty of accommodating employees' overlapping disabilities.
The Job Accommodation Network, a disability information service provided by the U.S. Department of Labor, gives suggestions for how an employer might find more reasonable accommodations for an allergic employee. For instance, an employer could prohibit employees from bringing certain allergenic foods to work, restrict areas where these foods may be eaten, allow employees with allergies to eat at their desks, or provide extra time at lunch to travel home. In order to avoid retaliation or disparate treatment claims, an employer may want to be careful placing restrictions on where an allergic employee can eat so as to not inadvertently create the impression that the allergic employee is being denied access to certain areas of the building. Further, all policies should be clearly communicated to employees and supervisors. An employer may also want to consider having a plan of action in case of an emergency for those employees at risk for anaphylactic reactions. (For a sample emergency plan see "Anaphylaxis Emergency Action Plan," from the American Academy of Allergy Asthma & Immunology.
As the legal trend shifts toward providing increased accommodation, acknowledgement and protection of food allergies as a disability, employers need to not only be aware of the changing legal environment, but should also be proactive in addressing issues of food allergies in the workplace. Thus, employers may want to consider:
* How they will respond to disability accommodation requests, and if appropriate, determine what is required during the interactive process.
* Training supervisors and managers how to respond to accommodation requests as well as the legal ramifications of failing to do so.
* Implementing and consistently following internal policies regarding disability accommodations. Establish ways in which to address accommodations based on food allergies and similar issues.
* Keeping up-to-date on EEOC interpretations and guidelines.
Proponents of greater rights for school children with food allergies have been successful in their efforts targeted at both state and federal levels of government. This has led to sweeping reforms and increased protection for those children from the U.S. Department of Agriculture to the Department of Education. These reforms, along with corresponding passage of state and federal legislation, indicates governmental awareness of the issue as well as a legislature open to increased statutory protection of those with food allergies.
Because of this, employers need to be cognizant that a similar pattern will arise for adults with food allergies as these children grow and enter the workplace.
Linda G. Burwell is a founding partner at Nemeth Burwell, which specializes in employment litigation, traditional labor law and management consultation for private and public sector employers. She can be reached at email@example.com. Kellen Myers is an associate attorney and can be reached at firstname.lastname@example.org.