Earlier this week, ABC News reported on the story of a woman who had severe peanut allergies who alleged that she was denied a job at a hospital because of those allergies. I appreciated ABC News reaching out to me for comment.
The facts of the story are frankly a bit unclear, so as I noted in the piece, I couldn’t really comment on the particular situation. But I noted that severe allergies can be a disability under the ADA in some circumstances:
Daniel Schwartz, an employment lawyer at the Shipman and Goodwin law firm and publisher of the Connecticut Employment law blog, said the ADA could be applied to a severe food allergy, but that the law is really designed to allow the employer and employee to talk about reasonable accommodations.
“If an employee with a peanut allergy was looking to be hired to work in the warehouse of a peanut butter manufacturer, that may not be realistic,” said Schwartz, who emphasized he was speaking generally because he was not working with Coleman. “A hospital may have some concerns as well. But allergies should be handled on a case by case basis. Just because an employee has a food allergy, doesn’t mean that they can’t be accommodated in some instances.”
In some instances, the employer may say that accommodating the allergy would be an “undue hardship.” In others, it may say that the employee poses a “direct threat” to the health and safety of himself. But in many other cases, the allergy may not be. The point is that an employer should look at the particular circumstances to determine the best outcome.
Let’s take another example. Suppose the applicant with a peanut allergy wanted to work as a food vendor at a baseball stadium. The types of food that the vendor can sell are randomized so that a person may sell beer one day, or peanuts the next. In that instance, a reasonable accommodation may be to take peanuts out of the rotation for the employee so that the employee doesn’t have to sell them. It’s probably not an undue hardship.
But suppose that the applicant’s allergy is so severe that even walking around a stadium with peanuts could potentially trigger a life-threatening allergic reaction? In that situation, it might fall within the “direct threat” exception to the ADA because the employee poses a significant safety risk to himself and that’s a risk that the employer isn’t willing to take.
Late in 2012, the Department of Justice entered into a settlement agreement with Lesley University to address food allergies for students. In doing so, the DOJ created a Question and Answer sheet that further details the government’s position on the subject.
Food allergies are quite common now and employers who haven’t had to confront the issue should be prepared to address them on a case by case basis.