Peanuts can trigger serious allergic reactions
As a food allergy survivor with three near-death experiences to peanuts in the past two decades, two of which occurred during the scope of my employment resulting in workers compensation claims, I am the first to say employers need to take food allergies exposure serious.
Today approximately 15 million Americans have food allergies, and that number continues to increase yearly. There is is no clear answer as to why, but according to a study released in 2013 by the Centers for Disease Control and Prevention, food allergies among children increased approximately 50% between 1997 and 2011.
As these children mature into the workforce, the number of working employees suffering from allergies will proliferate, and the severity of allergies will significantly increase.
The truth of the matter is that most employers do not currently have policies or procedures in place for managing employees with food allergies; and that needs to change.
As awareness of food allergies has improved, so does the demand for employers to accommodate employees with these allergies. The demand is coming not just from employees; but Congress and government agencies have broadened legal protections under the Americans with Disabilities Act (“ADA”) to include food allergies and other dietary issues.
Historically, food allergies did not rise to the level of a disability under the Americans with Disabilities Act. However, the ADA Amendments Act of 2008 (ADAAA) made a number of significant changes to the definition of “disability” greatly enlarging the definition and making it easier for an employee to show that a food allergy condition is disabling within the meaning of the ADA.
These amendments made it harder for the employer to argue that 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 and several EEOC disability lawsuits have since ensued
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As a general rule, once an employee ascertains that he or she suffers from a disability under the ADAAA, the employer is compelled to engage in an “interactive process” with the employee to discuss whether there is a reasonable accommodation that would permit the employee to perform the essential functions of his or her position.
However, such modifications must be reasonable according the ADA Act of 1990.
Modifications that are cost-prohibitive or very difficult to implement are generally not required. But when directed to an employee with a food allergy, this task isn’t as simple and it does raise some problematic 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 accommodations affect other employees?
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.
If the accommodation is as easy as moving an employee’s desk or cubicle to limit his or her exposure to food allergens, then the ADA would require the employer to undertake the reasonable accommodation. When it comes to outright banning certain foods from the workplace, case law is largely silent and for now from my research, this type of accommodation would be handled on a case-by-case basis.
Ultimately, even though this issue has been largely absent from disability discrimination case law, it is clear that those with food allergies are absolutely protected under the ADA and are entitled to legal protections that would prevent an employer from ignoring or terminating an employee because of his or her food allergy.
Lastly, it’s important for employers to note that the anti-retaliation and discrimination provisions of the ADA would prevent an employer from firing an employee when the boss finds out about the food allergy or terminating the employee in response to a request for a workplace accommodation for the disability.
In order to avoid retaliation claims, an employer should 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. All policies should be clearly communicated to employees and supervisors.
Employer should also 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 an employee with a peanut allergy I have never made any special requests or demands and have always placed my own health concerns in my own hands instead of relying on my employer. But I have informed my employer of my severity to a food allergy and what symptoms to look out for and where I keep my epinephrine shot.
Many employees with food allergies prefer to prepare and bring their own lunches to work. It is important to ensure your food is not contaminated or tampered with. Employees should speak to their supervisor about the current norms set up for the kitchen space and you may want to ask for a designated space in a shared cupboard. You can further protect yourself by placing your lunch in a sealed container, and label your food with your name and a “please do not touch” message. Or you may want to ask for permission to use a personal refrigerator or food storage in your private workspace.
As these legal trend shifts toward providing increased accommodations, recognition and protection of food allergies as a disability; employers be proactive in addressing issues of food allergies in the workplace. Here are some examples:
Training supervisors and managers how to respond to accommodation requests as well as the legal ramifications of failing to do so.
Conduct a training session to educate employees on food allergies and place signage in the kitchen with information about anaphylaxis and how to spot the signs of an allergic reaction.
Provide designated cups, plates, and utensils for those with food allergies, or a separate space to store those items that employees with food allergies purchase themselves.
Make accommodations during meetings and training events where foods or snacks may be served. The trainer or facilitator may ask people to refrain from eating in the room during the training/meeting if necessary.
Having lunch with clients, coworkers, or your supervisor is a common way to build rapport with colleagues and conduct business. Employers should prepare a list of restaurants that the affected employee (s) have eaten at before and are comfortable ordering from. Employers can also call ahead to the restaurant to request special accommodations and to highlight entrees on the menu with the food allegories in question.
Workplace potlucks, birthday parties, baby showers and celebrations occur with some frequency for most employers. Employers should remind everybody about identifying the ingredients and discuss cross contamination potential by using the same serving utensils.
Take action if other employees interfere with the provision of the reasonable accommodations (i.e., stealing/tampering with food, or eating food that contains an employee’s allergen in a meeting).
Allow for flex time and be understanding if the employee needs to take sick days or unexpected leave for medical appointments.
Allow an employee to keep medication
with him/her at all times and note that an employee with a food allergy may wear medical identification, such as a necklace or bracelet.
Be Safe My Friends
Keven Moore works in risk management services. He has a bachelor’s degree from University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He lives in Lexington with his family and works out of both the Lexington and Northern Kentucky offices. Keven can be reached at kmoore@roeding.com.
