CW: Discrimination
While lawsuits under the Americans with Disabilities Act involving food allergies have been uncommon, a generational surge in food allergies raises the prospect of an increase in the frequency of workplace disagreements that result in litigation.
Tens of millions of Americans have food allergies. About 7% of working-age adults are affected, according to the Centers for Disease Control and Prevention. For some people, merely being exposed to an allergen is enough to cause a reaction.
Anaphylaxis is another serious concern for people with allergies. Anaphylaxis is a severe, life-threatening allergic reaction. Anaphylaxis requires immediate medical attention, which may include an epinephrine injection and a visit to an emergency room.
Anaphylaxis is potentially fatal if not treated. According to the USDA, anaphylaxis to food causes approximately 30,000 emergency room visits, 2,000 hospitalizations, and 150 deaths per year in the United States. Symptoms of anaphylaxis include skin rash, swelling, difficulty breathing, diarrhea, and vomiting.
In a sign of what’s coming for the workplace, colleges have had to deal with concerns associated with students’ food allergies that were not seen even ten years ago, according to Laurel Francoeur, an attorney in Massachusetts whose practice focuses solely on food allergy disputes. “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.
Lawsuits involving food allergies in the workplace are already happening. The recent ADA lawsuit filed by a United Airlines Inc. pilot is an example of a case involving food allergies that could become more widespread in the future.
Mark MacKenzie has celiac disease. Celiac disease is an autoimmune disease that causes damage to the small intestine when gluten is consumed. He relies on United to provide or pay for food that is suitable for him to eat, but the company allegedly fails to provide the appropriate food or reimburse him for the cost of providing safe meals.
“United basically says your’e (sic) on your own, you have to self-accommodate,” said MacKenzie’s attorney, David Lichtenstein of Livelihood Law LLC.
However, food intolerance can cause disability-related legal concerns that extend beyond the conventional ADA accommodation scenario.
“I was really shocked by the scope and breadth of problems,” said D’Andra Millsap Shu, a professor at South Texas College of Law who reviewed almost 40 pending and resolved cases for a forthcoming Boston College Law Review article on workplace legal challenges related to food allergies.
Shu discovered a number of alleged ADA violations involving food allergies. They included pre-employment questions, refusal to hire, termination and constructive discharge, discriminatory modifications in the working environment, and retaliation.
Shu’s research also revealed claims of bullying and harassment. Those claims included verbal abuse regarding what employees can and cannot eat. They also included potentially life-threatening “pranks,” such as fooling a worker with a nut allergy into biting into a cookie containing nuts.
Although the case law on food allergies under the ADA is not well developed, it has gotten more plaintiff-friendly since Congress revised the ADA in 2008, Shu explained.
These revisions, which made pro-plaintiff changes such as establishing that the breadth of what constitutes a disability should be liberally defined, destroyed the reasoning behind some significant cases that rejected ADA protection for food allergies, she continued.
In one of those pre-amendment decisions, the US Court of Appeals for the Eighth Circuit ruled in 1999 that a peanut allergy was not a disability because the petitioner only experienced breathing difficulties when she had allergic reactions.
However, a ruling issued by a federal court in Michigan earlier this year demonstrates the changes’ significance. The court determined that a worker’s shellfish allergy was a disability due to the possibility of anaphylaxis. Even though she experienced just two allergic reactions in the previous decade.
Cases involving allergies to scents and other irritants can provide some insight, given the scarcity of rulings on food allergies, according to David Fram, director of ADA services at the National Employment Law Institute. “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.”
When it comes to accommodations, the ADA recommends employees contact their employers and advise them that they have disabilities that may require accommodations . The statute also limited employers’ authority to ask disability-related questions to those that are job-related and compatible with a business necessity.
“If an employee works in a bakery that uses nuts, it’s appropriate to ask if they’re allergic,” said Martin Orlick, a lawyer with Jeffer Mangels Butler & Mitchell LLP. “The business reason makes it lawful.”
According to Frank Morris, a management-side attorney at Epstein Becker & Green PC, firms should generally avoid asking employees if they have disabilities. If an employer asks those questions and then takes unfavorable action against the employee, it may create the sense of a link, making it easier for the worker to file a disability bias claim, he added.
Nonetheless, companies should take proactive steps to avoid legal concerns, notably bullying and harassment, according to Shu. “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.”
With the prevalence of food allergies increasing, employers may encounter more issues related to food safety in the future. Employers and employees should work together to understand the impact of food allergies in the workplace. Everybody should be able to be safe at work.
Sources:
“Anaphylaxis.” American Academy of Allergy Asthma & Immunology, American Academy of Allergy Asthma & Immunology, http://www.aaaai.org/conditions-treatments/allergies/anaphylaxis. Accessed 29 Mar. 2024.
“Food Safety and Inspection Service.” Food Safety and Inspection Service. , The United States Department of Agriculture, 13 Mar. 2024, http://www.fsis.usda.gov/food-safety/safe-food-handling-and-preparation/food-safety-basics/food-allergies.
Lafolla , Robert. “Food Allergies as Workplace Disability Issue Primed to Expand.” Bloomberg Law, Bloomberg , 13 Sept. 2024, news.bloomberglaw.com/daily-labor-report/food-allergies-as-workplace-disability-issue-primed-to-expand.
Shu, D. . The Food Allergy Generation Goes To Work (Forthcoming in Boston College Law Review, Spring 2025). 14 Aug. 2024
“What Is Celiac Disease?” Celiac Disease Foundation, Celiac Disease Foundation, celiac.org/about-celiac-disease/what-is-celiac-disease/. Accessed 29 Mar. 2024.