Growing prevalence of severe food allergies may trigger ADA accommodations

by Holly Jones

Late last year, a small private university in Massachusetts entered into a detailed settlement related to accommodating food allergies on campus. The settlement was the first of its type in higher education, but could it have broader implications for employers in general?

University under fire for mandatory meal plan program

In 2009, a complaint was filed with the U.S. Department of Justice (DOJ) alleging that Lesley University was in violation of Title III of the Americans with Disabilities Act (ADA) by failing to make reasonable modifications to allow students with food allergies to take advantage of the university meal plan system.

Title III prohibits public accommodations (e.g., healthcare providers, hotels and establishments serving food, and educational institutions) from discriminating against disabled individuals by impeding their access to full and equal enjoyment of the goods, services, or programs offered by such establishments. Covered entities are required to make reasonable accommodations as necessary to provide full and equal access to the services provided.

At the time of the complaint, students of Lesley University who lived on campus were required to participate in the university meal plan system―even if some students were unable to eat the food because of severe allergies. In response to the complaint, the university entered into a settlement in December 2012. Under the terms of the settlement, the university agreed to pay $50,000 to students affected by the policy and to:

• Provide gluten-free and allergen-free food options in its dining hall food lines;
• Allow students with known allergies to preorder allergen-free meals;
• Display notices concerning food allergies and identify foods containing specific allergens;
• Train food-service and university staff about issues related to food allergies;
• Provide a dedicated space in its main dining hall to store and prepare gluten-free and allergen-free foods; and
• Work to retain vendors that accept students’ prepaid meal cards and also offer food without allergens.

Food sensitivities, allergens, and autoimmune disorders

According to the Centers for Disease Control and Prevention (CDC), food allergies affect approximately two percent of adults, and the number of young people diagnosed with a food allergy has risen in the past decade―between four and eight percent of children in the United States are affected by food allergies.

Of particular issue in the Lesley University situation was the growing prevalence of wheat allergies, gluten intolerance, and, at its most severe, celiac disease. Celiac disease isn’t an allergy but an autoimmune condition triggered by consumption of the protein gluten, which is primarily found in baked goods containing wheat, barley, or rye but also may be hidden in the form of “natural flavors” or colorants in foods such as soy sauce, imitation crab, and even caramel-colored sodas.

For someone with celiac disease, which affects approximately two million Americans, eating foods with gluten can cause permanent damage to the surface of the small intestine and an inability to absorb certain nutrients, leading to vitamin deficiencies that deny vital nourishment to the brain, nervous system, bones, liver, and other organs.

How does the ADA relate to food allergies?

Since the passage of the ADA Amendments Act (ADAAA), it is easier to make the case that periodic conditions such as allergies are disabilities. A disability as defined by the ADA is a mental or physical impairment that substantially limits a major life activity, such as eating. Major life activities also include major bodily functions, such as the functions of the gastrointestinal system.

In the Lesley University settlement, the DOJ stated that food allergies may constitute a disability under the ADA because individuals with food allergies may have an autoimmune response to certain foods, the symptoms of which may include difficulty swallowing and breathing, asthma, and anaphylaxis. For example, celiac disease affects the major life activity of eating and the major bodily functions of the immune, digestive, bowel, and neurological systems.

What does the settlement mean for you?

In a Q&A document following the Lesley settlement, the DOJ clarifies that the ADA doesn’t require that every place of public accommodation that serves food provide gluten-free or allergen-free food. Because the university’s meal plan was mandatory for all students living on campus, the ADA required it to make reasonable modifications to the plan to accommodate students with celiac disease and food allergies. That’s different from the ADA’s obligation for restaurants that serve the general public.

Nonetheless, the precedent set by this settlement could have far-reaching implications for entities that serve food to the public, entities that lease to those who serve food, and even employers with cafeterias.

Additionally, in particularly severe cases, food allergies and autoimmune diseases may not be triggered solely by the actual ingestion of such food but by physical contact with items containing the allergen. In those cases, food-service workers who don’t ingest but merely handle the food may qualify for accommodations for their allergies.

Bottom line

Businesses or entities that provide food to the public should evaluate the feasibility of providing allergen-free food options, follow safe preparation standards to avoid cross-contamination of “safe” foods, and educate and train food-service staff on food allergies and potential allergens used in the establishment.

In the employment context, you may be required to engage in the interactive process with an employee who requests a reasonable modification for a food allergy that is affecting his work performance. Accommodations may include prohibiting other employees from bringing certain foods to work, restricting the areas where those (or any) foods may be eaten, providing additional time for employees with food allergies to travel home to eat lunch, or reassigning food-service workers to stations that don’t involve handling or encountering the allergen.

Holly Jones is an attorney editor with Business & Legal Resources. She may be contacted at hjones@blr.com.