Revisit Food Allergies and Accommodations for Guests and Employees

A broadly worded settlement agreement between the U.S. Department of Justice and Lesley University extends the Americans with Disabilities Act’s protections to individuals with severe allergies. This new, expansive interpretation of the term “disability” could increase potential legal exposure to failure to accommodate claims under the ADA, making it more important than ever to ensure that your restaurants and bars are equipped to provide reasonable accommodations to individuals with severe food allergies.

Title III of the ADA requires hospitality operators to maintain facilities that are accessible to individuals with disabilities, and make their goods and services available to and usable by individuals with disabilities on an equal basis with members of the general public. This includes making reasonable modifications to policies, practices, and procedures when necessary to serve customers/guests with disabilities.

Lesley University had required all students living on campus to participate in, and pay for, its meal service plan, even if some students with severe allergies could not eat the food available through the plan without risk of illness. Several students complained that the school’s food services were inadequate for their needs, and alleged that the university had violated the ADA by neither addressing the needs of students with food allergies nor ensuring them an equivalent dining experience.

The DOJ commenced an investigation, and charged that the university violated the ADA by failing to accommodate the special food needs of these students, reasoning that they could not fully and equally enjoy the university’s dining services. On Dec. 21, 2012, the DOJ announced its settlement with Lesley University, which required the university to provide allergen-free options in its food lines, and develop individualized meal plans for students with food allergies.

While the DOJ settlement agreement refers only to universities and students, it has now, for the first time, identified all severe food allergies as disabilities, which could trigger reasonable accommodation requirements of the ADA. This settlement makes it possible that when this issue is litigated, the courts will broadly apply the terms of this agreement to all employers that serve food in the workplace. As a result, the settlement is likely to have wide-ranging implications for all businesses that serve food, either as a primary or secondary practice. Thus, hospitality operators should evaluate their practices for offering and providing accommodations for food allergies to minimize any potential exposure to disability discrimination charges under the ADA.

While there may not be a “one size fits all” solution to this issue, hospitality companies can take prudent steps to ensure that guests with allergies have the ability to fully and equally enjoy the dining services and the social benefits that accompany such services (see list below).

Depending on the size and resources of your company, many strategies to provide alternatives may not be practical or feasible. However, to ensure compliance with the ADA and avoid a civil lawsuit or DOJ investigation, hospitality operators that serve food to the public must be proactive in at least considering, if not implementing, some of the allergen protective measures.

Tips to Accommodate Food Allergies

There are many practical strategies that hospitality operators can implement to reduce Americans with Disabilities Act exposure regarding allergens:

• Display signs concerning food allergies and identify foods that contain specific allergens.
• Evaluate the feasibility of providing gluten- and allergen-free food options.
• Provide a dedicated alternative space to store and prepare foods to avoid cross-contamination, or if space does not allow for that, use different utensils, cutting boards and other preparation materials.
• Use vendors who offer food without allergens.
• Alert customers with food allergies via marketing materials and your website to notify you in advance so that you can make every effort to accommodate their particular allergies and other dietary needs.
• Create internal policy and procedures for manufacturer recalls and customer complaints.
• Educate your staff about common food allergies and provide ongoing training to your staff so they can appropriately respond to questions about food ingredients and requests for alternatives.

Co-Authored By:  Jordan Schwartz