Food allergies are widespread. Anyone who has a child, works at or with a school, or reads extensively knows that the increasing prevalence of food allergies among children is one of today’s biggest medical mysteries, not to mention a huge problem. The number of children with nut allergies has more than quadrupled since 1997, which has created a pressing need for schools to alter policies and menus. Airlines and other customer-centered businesses now also face pressure to change their policies for the safety of nut-allergic customers.

Peanut WarningAs the population with food allergies ages, the impact will spread to employers in the form of increasing numbers of requests for food allergy accommodations under the Americans with Disabilities Act (the “ADA”), which defines a disability as a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 1202(1). This does not exclude food allergies: “major life activities” include “eating” and “breathing.” Id. And, under the ADA, employers are required to provide “reasonable accommodations” to an employee or job applicant with disability, including making a change to the job environment. 29 C.F.R. § 1609.

Individuals with food allergies certainly suffer from physical impairments that may substantially limit their abilities to eat and/or breathe. Indeed, food allergies (most famously peanut allergies) can trigger medical symptoms even without consuming the allergic substance: people with peanut allergies can go into anaphylaxis simply from breathing peanut dust. (No, I’m not a doctor, but I looked that up.)

So, what about work environments where employees share offices, work in communal spaces, or spend breaks in designated break rooms with other employees? If Smitty has a life-threatening nut allergy and the person in the next cubicle eats lunch at Five Guys every day and spends the afternoon cracking open those delicious free peanuts at her desk, is Smitty entitled to an accommodation under the ADA?

While there is no case law on this as of yet, there is guidance.

In 2009, the U.S. Department of Justice (“DOJ”) received a complaint that Lesley University violated Title III of the ADA (its public accommodations provision) by failing to provide reasonable accommodations for students with celiac disease and/or food allergies in its food service and meal plan system. DOJ concluded that there were violations; its settlement agreement, entered into in December 2012, contains instructive language that will likely guide further decisions in the area of food allergies. Indeed, the DOJ released FAQs on the settlement, helpfully titled “Questions and Answers About the Lesley University Settlement and Potential Implications for Individuals with Food Allergies” — available here if you’re interested.

While this settlement isn’t binding precedent, it suggests how such cases will be prosecuted both by the government and by private plaintiffs and offers direction that courts might take when confronted with such a case. With the range of food allergies being significant (chocolate, milk, fish, peanuts, gluten, etc.), employers can legitimately wonder whether taking Snickers out of the vending machine is the beginning, the end, or wholly unnecessary.

It is certainly possible for an allergic employee to push for a total ban (although pat down searches for hidden Snickers may be a bridge too far). A total ban is foreshadowed by the case law for public accommodations with respect to cigarette smoke. Staron v. McDonald’s Corp., 51 F.3d 353 (2nd Cir. 1995)(a total ban on smoking could be a “reasonable modification” for purposes of accommodating customers with respiratory disorders affected by cigarette smoke).

Yet, case law involving fragrance allergies suggests that far more limited accommodations in employment may be all that is required. McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. Nov. 25, 2008), found that a total scent-free policy would be unreasonable as overly burdensome. Similarly, in 2007, the Third Circuit held that an employer had more than met its obligations to accommodate a scent sensitivity where it implemented a no-perfume policy, periodically reminded its employees about compliance with the policy, periodically cleaned office air filters, and provided the employee at issue with new air filters in her office and a fan for air circulation. Noting the employer’s extensive efforts at accommodation, the Third Circuit rejected the notion that the employer was required to provide an “absolutely odor-free environment.”

This, however, does not permit ignoring food allergies. Employers confronted with requests for allergy accommodations will need to engage in the ADA-mandated interactive process. Each allergy is unique; some trigger only upon consumption but others on proximity. Each will, accordingly, demand a unique and customized solution.

For allergies triggered by consumption, it would likely be sufficient to make sure that eating options are also available for allergy sufferers (e.g., gluten-free lunches in a cafeteria or snacks in vending machines).

For allergies that can be triggered even by proximity, the Third Circuit’s approach may be most instructive: Employers who receive requests for a nut-free workplace may be able to meet their obligation by implementing a nut-free policy and taking basic steps to implement, such as posting signs in break rooms reminding employees of the policy. It is difficult to imagine, however, that employers could be held responsible for an employee who smuggles peanut butter crackers in her purse into the office, since preventing such actions would require a level of policing that courts would likely not view as reasonable.

For some employees in some jobs, the accommodation may require moving the allergic employee. Drawing a parallel to fragrance sensitivity, Buckles v. First Data Resources, 176 F.3d 1098 (8th Cir. 1999), found that an employer had offered a reasonable accommodation by permitting an employee to relocate from any area with a fragrance triggering his sensitivity. Notably, that case also held that the employer rightly terminated that employee when, instead of exiting the area containing the irritant, he simply went home any time he thought an allergy might be triggered, because employers are not required to provide an “unlimited absentee policy.” Id. at 1101. There are limits to reasonableness!

For me, I just have James Thurber’s famous allergy that is also beyond accommodation: “I used to wake up at 4 A.M. and start sneezing, sometimes for five hours. I tried to find out what sort of allergy I had but finally came to the conclusion that it must be an allergy to consciousness.”