Navigating the ins and outs of your obligations under the Americans with Disabilities Act (ADA) and similar state laws can be a challenge for even the most seasoned HR professional. One situation that may be familiar to you is having an employee with food allergies. According to the Asthma and Allergy Foundation of America, about 15 million people in the United States suffer from food allergies, and that number is steadily increasing. Allergies are not only miserable for the sufferer, but they can also hurt an employer’s bottom line: It’s estimated that employees miss about four million workdays per year as a result of allergies. 
Depending on their severity, food allergies may be covered by the ADA or similar state laws. To avoid employee complaints, lost productivity, excessive absences, and the risk of a lawsuit, it’s important to have a plan in place to address requests for accommodations based on food allergies.
Wait—is ‘food allergy’ a new protected characteristic?
Last October, the Equal Employment Opportunity Commission (EEOC) filed suit against Media Star Promotions on behalf of a former employee who has food allergies. The EEOC alleged that Media Star violated the ADA by refusing to grant Amanda Matherly an accommodation for her severe allergies to peanuts and tree nuts.
Under the ADA, “disability” is defined as a “physical or mental impairment that substantially limits one or more major life activities.” Food allergies can easily fall into that category because individuals with food allergies typically suffer from physical impairments that may substantially limit at least two “major life activities”: their ability to eat and to breathe.
Matherly worked as a field representative for Media Star. Her primary duty was to travel to outdoor festivals to distribute free product samples and gather customers’ contact information. As an accommodation for her allergies, she requested that Media Star provide her with vinyl gloves to use when she handled food samples that may have been contaminated with peanut or other nut dust. She also requested that Media Star alert hotels and airlines about her allergies when her job required her to travel.
Matherly alleged that Media Star refused to grant her accommodation requests and instead asked her to sign a waiver of her rights under the ADA. The case is currently still pending. However, it’s a good reminder that food allergies fit very comfortably within the definition of “disability” under the ADA, and employers should therefore anticipate that employees may request accommodations related to their allergies. The case also serves as a warning for employers that might not take food allergies seriously: Failing to accommodate a qualified employee with a disability can have serious consequences.
In a much stranger but equally viable case, a former employee sued the restaurant chain Panera, alleging that it violated Title VII of the Civil Rights Act of 1964 by condoning harassment against him based on his food allergies. Dustin Maldonado filed suit in November 2015, alleging that his manager and coworkers created a hostile work environment and harassed him because of his allergies.
Maldonado alleged that his manager and coworkers taunted him about his allergies, intentionally exposed him to peanuts, tricked him into eating nut-laced food items, and teased him that his EpiPen would spread AIDS. For example, his manager left peanut butter outside his office as a “prank” on Maldonado. Another time, the manager allegedly told Maldonado that his coworkers had made dinner for him and then placed peanut-butter-filled candies into his uncovered hands, causing an allergic reaction.
After the last incident, Maldonado filed a formal complaint with Panera’s HR department. The HR representative allegedly told him that he should have a better sense of humor about the situation. Again, liability in this case has yet to be determined, but it’s another good reminder that food allergies, if they rise to the level of a disability, can form the basis of both Title VII claims and ADA claims. Regardless of which claim an employee selects, your company may be exposed to significant financial liability.
Do I have to accommodate?
Once an employee has alerted management that he has a food allergy, you must treat the situation seriously. If the employee is seeking accommodations because of the allergy, you should treat him the same way you would treat any other potentially disabled employee and follow your ADA protocol. You have a legal duty to accommodate an employee with a disability unless you can show that doing so would constitute an “undue hardship.”
You are entitled to request documentation of the medical condition that is creating the problem before granting an accommodation, although it’s sometimes advisable to grant a requested accommodation pending verification of the medical condition by the employee’s treating physician. If medical documentation shows that the employee in fact suffers from a disabling condition, you need to engage in the interactive process and consider accommodations that would allow her to perform the essential functions of her job. If there are no such accommodations, then she simply isn’t qualified for her position.
However, you shouldn’t simply dismiss a request for accommodation as unreasonable until you’ve fully explored whether it would be possible. Remember, showing that an accommodation is unreasonable because it would impose an undue hardship is a very tough task.
What type of accommodations?
Although employers have a legal duty to accommodate employees with food allergies, actually implementing an accommodation is an entirely different story. Several thorny issues are bound to pop up: Can employees bring peanut butter sandwiches to work for lunch? Should the workplace be nut-free? Do employees with allergies need their own fridge? While those concerns are valid, there’s very little case law to guide an employer seeking to accommodate an employee with food allergies.
A nut-free workplace policy may seem like the easiest solution, but it isn’t necessarily required by law. In cases involving employees’ allergies to fragrances, courts have deemed a total ban on perfumes and other fragrances overly burdensome. An “allergen-free” policy with periodic reminders to employees and proper maintenance of the air filtration system were found to be sufficient. In other cases involving scent sensitivities, courts have found that moving the affected employee to an area where her allergies are triggered less frequently can be a reasonable accommodation.
No matter what type of accommodation ultimately works for you and your employee, remember that under the ADA, you are required to engage in an interactive dialogue with the employee about requested accommodations, including whether they are reasonable and whether they can be successfully implemented. As always, be sure to consult with your labor and employment counsel about the facts of your particular situation.
Bottom line
You can proactively make your work environment more welcoming for workers with food allergies by conducting training on the risks associated with food allergies and helping employees recognize the signs of an allergic reaction. Consider posting signage in kitchen areas and providing disposable plates, cups, and utensils for 
use by employees with allergies. And always be sure to take food allergies into account when you’re planning company functions and events.
Stefanie M. Renaud is an associate at the firm of Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. She may be contacted at srenaud@skoler-abbott.com.