Food Allergies as Workplace Disability Issue Primed to Expand

While Americans with Disabilities Act lawsuits related to food allergies have been rare, a generational boom in those conditions creates the potential for growth in the frequency of workplace disputes that trigger litigation.

Food allergies impact tens of millions of Americans—including nearly 7% of working-age adults, according to the Centers for Disease Control and Prevention. Some conditions are so sensitive that just being around a particular food can trigger a reaction.

The prevalence of food allergies among children jumped by 50% from 1997 to 2011, the CDC found.

In a sign of what’s coming to the workplace, colleges have had to deal with issues related to students’ food allergies that weren’t seen as recently as 10 years ago, said Laurel Francoeur, an attorney in Massachusetts whose practice is focused exclusively on disputes stemming from food allergies.

“It’s going to be the same way with employment cases as people diagnosed in the 2000s enter the workforce,” said Francoeur, whose son was born in 2000 and was diagnosed with multiple serious food allergies.

Legal Issues

A United Airlines Inc. pilot’s recent ADA lawsuit is an example of the type of case related to a worker’s food intolerance that may become more common in coming years.

Mark MacKenzie has celiac disease, an autoimmune disorder that causes digestive problems and other symptoms with the consumption of gluten. He relies on United to procure or pay for food that’s safe for him to eat, but the company allegedly doesn’t provide the necessary food or reimburse him for the cost of providing meals he can safely eat.

“United basically says your’e on your own, you have to self-accommodate,” said MacKenzie’s attorney, David Lichtenstein of Livelihood Law LLC.

United declined to comment.

Yet food intolerance can spur disability-related legal issues that go beyond a stereotypical ADA accommodation scenario.

“I was really shocked by the scope and the breadth of problems,” said D’Andra Millsap Shu, a professor at South Texas College of Law who examined nearly 40 pending and settled cases for a forthcoming Boston College Law Review article on workplace legal issues stemming from food allergies.

Shu found a variety of alleged ADA violations related to food allergies, including pre-employment inquiries, failure to hire, termination and constructive discharge, biased changes in working conditions, and retaliation.

Bullying and harassment claims also turned up in Shu’s research. Those allegations ranged from verbal ridicule for what workers can and can’t eat, to potentially life-threatening “pranks,” like tricking a worker with a nut allergy to bite into a cookie containing nuts.

Existing Case Law

Although the case law on food allergies under the ADA isn’t well developed, it’s become more plaintiff-friendly since Congress amended the ADA in 2008, Shu said.

Those amendments, which made pro-plaintiff changes like clarifying that the scope of what’s considered a disability should be interpreted broadly, gutted the reasoning behind some important decisions that rejected ADA protection for food allergies, she added.

In one of those pre-amendment rulings, the US Court of Appeals for the Eighth Circuit held in 1999 that a peanut allergy wasn’t a disability because the plaintiff only had breathing impairments when she had allergic reactions.

But a decision by a Michigan federal court earlier this year shows the impact of the amendments. The court found that a worker’s shellfish allergy was a disability because of the risk of anaphylaxis—even though she had just two allergic reactions in the past decade.

Cases that deal with allergies to fragrances and other irritants can provide some guidance in light of the relative dearth of rulings specifically on food allergies, said David Fram, the National Employment Law Institute’s director of ADA services.

“Courts and the EEOC seem to be saying if somebody is allergic to a lot of things, it’s not reasonable to get rid of all of those things,” Fram said. “On the other hand, if it’s one particular thing, then getting rid of it might be a reasonable accommodation.”

Employer Options

Although medium and large companies should anticipate that some of their workers have food allergies that may rise to the level of disabilities, they don’t understand the prevalence of those conditions, said Pam Williamson, assistant director at Southeast ADA Center, a project of the Burton Blatt Institute at Syracuse University.

“It’s flying under the radar of employers,” said Williamson, who provides ADA guidance for employers, government agencies, and individuals with disabilities.

When it comes to accommodations, the ADA puts the onus on workers to reach out to employers and inform them that they have disabilities that might require particular attention. The law also limits employers’ latitude to ask disability-related questions to when they’re job-related and consistent with a business necessity.

“If an employee is working in a bakery that uses nuts, then it’s appropriate to ask if they’re allergic to nuts,” said Martin Orlick, a lawyer who represents employers at Jeffer Mangels Butler & Mitchell LLP. “The business reason makes it lawful.”

Generally speaking, though, companies should refrain from asking workers whether they have disabilities, said Frank Morris, a management-side attorney at Epstein Becker & Green PC. If an employer makes those inquires and then later takes an adverse action against the worker, it could create an impression of a connection that makes it easier for the worker to make a disability bias claim, he said.

Nevertheless, there are proactive steps employers can take to guard against legal issues, particularly bullying and harassment, said Shu, the law professor who researched ADA issues involving food allergies.

“Education is the main thing because there’s a lot of misunderstanding,” she said. “Employers have all kinds of safety training and harassment training. Including something related to food allergies is not unreasonable.”