Detroit, Michigan – March 11, 2013 – While only about 4% of adults currently suffer allergies ranging from mild to life-threatening, the future workforce looks quite different. Twice as many children as adults suffer from food allergies according to both the National Institute of Allergy and Infectious Diseases and the Journal of the American Academy of Pediatrics. Of these children, nearly 40% have a history of severe or anaphylactic reactions upon exposure. The impact of food allergies is increasingly impacting employers and the workplace, according to Linda G. Burwell of Detroit-based employment law firm Nemeth Burwell, P.C.
“As these children grow – and many are entering the workforce now or in the near term – the number of employees suffering from allergies will multiply, and the severity of allergies will drastically increase. Most employers do not currently have policies or procedures in place for managing employees with food allergies; soon, they will have no choice,” said Burwell.
The Americans with Disabilities Act (ADA) and the ADA Amendments Act (ADAAA) have played key roles in extending disability coverage to individuals already suffering from food allergies in the workplace. Proponents of greater rights for school children with food allergies have been successful in their efforts targeted at both state and federal levels of government already. With food allergies now falling under the ADAAA, it is harder for employers to argue that allergies are not disabling. A 2012 decision impacting Lesley University in Massachusetts offers additional guidance for employers to consider.
In that case, the U.S. Justice Department determined Lesley University was required to provide gluten-free and allergen-free food options to students who purchased the University’s meal plan, advising that “food allergies may constitute a disability under the ADA.” For employers, this may mean that it will be easier for employees to demonstrate that their food allergies are disabling.
Generally speaking, an employer is obligated to engage with an employee who has established that he suffers from a disability to discuss whether there is a reasonable accommodation that would enable the employee to perform the essential functions of his or her position. The emphasis is on reasonable, according to Burwell.
The Equal Employment Opportunities Commission (EEOC) is also playing a role in determining fair policies on allergies in the workplace. Under EEOC guidelines, an employer does not establish that a requested accommodation is unreasonable merely by showing that it poses an inconvenience or an annoyance to his or her coworkers. If that is the employer’s only reason for not granting the request, the employer may have to provide the accommodation.
“As the legal trend shifts toward providing increased accommodation, acknowledgement, and protection of food allergies as a disability, employers need to not only be aware of the changing legal environment, but should also be proactive in addressing food allergy issues in the workplace,” concluded Burwell.
Suggestions and information for employers on how to accommodate food allergies in the workplace can be obtained from the Job Accommodation Network, a disability information service provided by the Department of Labor (DOL).
About Nemeth Burwell, P.C.: Nemeth Burwell specializes in employment litigation, traditional labor law and management consultation for private and public sector employers. It is the largest women-owned law firm in Michigan to exclusively represent management in the prevention, resolution and litigation of labor and employment disputes.