When I was growing up I didn’t know a single person who was allergic to nuts or any other food. Now it seems every classroom in my children’s school has at least one child with a life-threatening (anaphylactic) allergic reaction to something…usually nuts. According to the results of a survey conducted by the Center for Disease Control and Prevention, the number of food allergies has increased 50% in the period between 1997 and 2011. That increase has yet to be explained, but it remains a fact. Every 3 minutes, someone is brought to the emergency room due to an anaphylactic reaction. But, can a person’s allergies render him/her “disabled”? The 2008 amendments to the ADA broadened the definition of “disability” such that, in many cases, allergies will qualify a person for protection. As a result, there has been an upsurge in disability complaints involving allergies in the school setting. Will this increase in allergy‑related disability complaints spread to the private sector as well?
Just a few months ago, a Michigan Court upheld [pdf] a school district’s enactment of a school‑wide ban on nut products to accommodate a child with a life-threatening allergy. The action was filed by the parent of another child who claimed it was a violation of her child’s constitutional rights to be prevented from eating nuts for lunch at school.
And this month, by agreement between the parents and the school district, an Ohio first grader who uses a service dog will be removed from her neighborhood school and transferred to another location due to the fact that her teacher has a severe allergy to dogs. Less invasive accommodations (i.e. keeping the dog on the opposite side of the room) were considered but determined to be ineffective, given her doctor’s advice that the cumulative exposure, although limited, could be detrimental to her heath.
In February 2013, the Fifth Circuit conducted an extensive examination of whether an employee’s allergy to scented candles/room fresheners constituted a disability. The Court found [pdf] no disability to exist because the employee’s allergies did not substantially limit a major activity. In refusing to apply the broadened definition set forth in the ADA Amendments Act, the Court reasoned that the Amendment does not apply retroactively to cases where, as here, the facts took place before the Amendment took effect.
The National Council on Disability published a recent survey on the effects of the ADAAA on court decisions. Their results show that there were 115 federal court of appeal decisions that have referenced the amendments as of June. Amazingly, the court applied the amendments in only 11 of those cases. In the majority of the cases, the Court found that the facts giving rise to the lawsuit occurred before the effective date of the amendments, and they did not find a mandate to apply the amendments retroactively.
The clock is ticking and soon the “it-happened-before-the-amendments” defense will no longer apply. What can you do to avoid allergy-related litigation? Employers who are made aware of an employee’s allergies must in fact consider whether the allergies amount to a disability. It is a good idea to designate one or two employees who have knowledge about the ADA and the ADA Amendments Act to assess all requests for reasonable accommodations due to a disability – usually a leave or human resources administrator. If you have a staff nurse, he or she should probably be consulted when it comes to assessing a medical disability. But remember to be overly inclusive in your analysis and request medical documentation from the employee. If the allergy does constitute a disability, employers must take action to accommodate the employee, as it would for any other employee with a disability. For example, the employer might try to put as much space between the employee and his particular allergen (whether it’s nuts or a particular scent), or if that is ineffective, a department‑wide (or company‑wide) ban of that item may be considered reasonable. The facts and circumstances of each situation must be reviewed on a case‑by‑case basis. The key is don’t readily dismiss an employee’s request for accommodation due to his/her allergies. Investigate and, if necessary, take steps to accommodate. And don’t forget to document your investigation and attempts to accommodate the employee.