Ms. Hilliard

Hospitality Law

Food Allergies and the Changing Application of the Americans with Disabilities Act

(as Amended)

By Tyra Hilliard, Attorney, Tyra Hilliard, Esq.

More than 15 million Americans, nine million of them adults, have food allergies. While handling special dietary requests is not a new issue for hotels, the practical and legal issues surrounding accommodating dietary restrictions are changing. According to Food Allergy Research & Education (FARE), food allergies are on the rise. Because nearly half of fatal food allergy reactions are caused by food consumed outside the home, it isn't a far stretch to imagine that a significant number each year may occur in hotels.

Eight foods are responsible for 90% of all allergic reactions in the U.S.: milk, eggs, peanuts, tree nuts, wheat, soy, fish, and shellfish. The same eight foods are responsible for 90% of food allergies in the United Kingdom as well, although the European Union named fourteen allergens to be identified in food labels in its EU 1169 packaged food labeling law.

There is a great risk of negligence liability regarding food allergies. Hotel kitchen, restaurant, and banquet staff are the ones whose knowledge and actions can best mitigate this risk. Unfortunately, food service workers are not always as well informed about food allergies as we expect them to be. Three research studies duplicated in New York, Brighton (England), and Wellington (New Zealand) published 2011-2014 found very little consistency in the training and knowledge of restaurant and café owners, managers, kitchen staff and servers about food allergies. In fact, a large percentage of those that participated in the study believed false statements about food allergies were true such as:

  • Allergen removal from a finished meal would render it safe (e.g. taking the nuts off a finished salad). Nearly a quarter of respondents in each study believed this was true.
  • Consuming a small amount of an allergen from a finished meal would be safe. Nearly a quarter of U.S. and England respondents believed this was true. Only 14% of New Zealand respondents believed it was true.
  • Fryer heat will destroy allergens. Nearly a third of England and U.S. respondents believed this was true. Only 12% of New Zealand respondents believed it was true.

It is interesting to note that since 1996, New Zealand has allowed restaurants to develop a Food Safety Program (including information on food allergy risks and management) that is registered and audited. Although speculative, this could explain why the New Zealand respondents performed better on some of the questions that the U.S. or England respondents. This suggests that better employee training, for kitchen staff and servers as well as sales and catering employees, may reduce the risk of liability for food-related litigation.

One reason that more training doesn't take place may be the perception among hotel executives that the risk of liability for food allergies is slight. While the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 were anti-discrimination laws intended to require accommodation for persons with disabilities, they were construed quite narrowly by the courts. Resulting case law citing these laws was not favorable to persons with food allergies.

The Rehabilitation Act of 1973 applies to programs and organizations who receive federal funding and is still one of the primary governing laws in schools through the U.S. The Americans with Disabilities Act of 1990 (ADA) was passed as an effort to expand the anti-discrimination protection of persons with disabilities to those in the private sector, including public accommodations such as hotels.

Under the ADA, a person with a disability was defined in a three-prong approach as one who: (1) has a physical or mental impairment that substantially limits one or more major life activities of such individual, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. Major life activities have traditionally included sleeping, eating, breathing, reading, and concentrating. However, mitigating measures (such as wearing glasses or taking medication) have been factored into the determination of whether a person is a person with a disability under the ADA. For persons with disabilities, the ADA requires a "reasonable accommodation" in Title I Employment. The reasonable accommodation standard has also been applied to Title III Public Accommodations, but without a clear definition of what constituted a reasonable accommodation.

The landmark case for an ADA claim for a food allergy was Land v. Baptist Medical Center (1999), in which a mother sued a daycare for refusing to provide care to her daughter after the child suffered two allergic attacks to peanuts while at the daycare. The court held that the child did not have a disability despite her life-threatening allergy to peanuts. The appellate court used the following reasoning in determining the child was not a person with a disability: (1) the girl could eat any food other than peanuts and (2) her breathing was only affected during an allergic attack. Because the girl's allergy attacks were infrequent and manageable, she did not qualify for protection under the ADA. A similar case, Bohacek v. City of Stockton (2005), involving a child and a city-run summer camp, had a parallel outcome.

With the consistency of food allergy cases under the original ADA, hotels may have grown comfortable-and even complacent-on the issue of food allergies, viewing it as a customer service issue but not a significant liability issue. Even for those attuned to this issue, the subtle shifting of the law in this area may have been easy to overlook. Amendments to the ADA and some recent case law have shifted the entire legal way of thinking on this subject.

As a reaction to the case law that narrowed protection and made inclusivity in the ADA an uphill battle, the ADA was amended in 2008 to better fit the spirit of the law as it was originally intended. Under the ADA as Amended (ADAAA), the definition of disability was expanded from the three-pronged approach in the original ADA to include a non-exhaustive list of major life activities and major bodily functions. The ADAAA rules require the law to be construed broadly and inclusively instead of narrowly as it was under the original ADA.

It is significant when discussing food allergies to note that the ADAAA includes eating and breathing (food allergies limit eating, anaphylactic shock inhibits breathing) as major life activities as well as major bodily functions, such as digestion, bowel function, and respiratory function (which could apply to celiac disease, irritable bowel syndrome, and other conditions). Perhaps most significantly, the ADAAA allows a finding of disability for an episodic impairment (such as an allergic reaction) and the presence or availability of mitigating measures should not be factored into the determination of an individual's disability in most cases. So the fact that a person has an epi pen or can avoid eating peanuts (or other allergy-inducing foods) does not preclude their being identified as a person with a disability under the ADAAA. This application of the new law is in direct opposition to the law as interpreted by Land and Bohacek.

The application of the ADAAA on the topic of food allergies was somewhat theoretical until the U.S. Department of Justice v. Lesley University (2013) settlement. When Lesley University required students to purchase a meal plan but then wouldn't provide accommodations for those with serious food allergies, the U.S. Department of Justice got involved and, using the language of the ADAAA, negotiated a settlement with Lesley University that required them to provide reasonable accommodations for students with food allergies. An Iowa Court of Appeals case, Knudsen v. Tiger Tots Community Child Care Center (2013) was decided shortly after the Lesley University case. Knudsen rejected the Land rationale, and said the ADAAA should be applied. Although two disparate cases in different jurisdictions, these cases should be taken as a sign that the law is turning. Hotels should expect to see more cases using this new ADAAA rationale and thus, elevate the liability risk for issues arising from food allergies to a higher level.

Several states have also undertaken legislation aimed at addressing food allergy issues. For now, these have focused mainly on restaurants. In 2009, Massachusetts has passed the Food Allergy Awareness in Restaurants Act (FAAA), which requires a food allergy notice on menus, food allergy educational posters in the employee areas, and a note on menus and menu boards that reads: "Before placing your order, please inform your server if a person in your party has a food allergy." It further requires restaurants to have a certified food protection manager on staff who has completed approved training.

Rhode Island has a law similar to that of Massachusetts, including the need for a food allergy poster in an employee area, a notice on menus, and a requirement to have a manager who is knowledgeable about food allergies and has responsibilities regarding food allergies. Maryland's law, effective in 2014, requires an employee working who has completed and passed a training course and can discuss meal options for people with allergies. These laws beg the question-why wouldn't every food establishment have someone trained and versed in food allergies and food options, whether it is perceived as a customer service measure, a liability mitigation measure, or both?

Currently, 27 U.S. states have "entity stock ephinephrine" laws; six more have pending legislation. Mirrored on laws allowing (but not mandating) the stocking of epinephrine at schools, the entity stock epinephrine laws allow other places of public accommodation (including hotels) to stock it for use in case of an emergency. A few facts from Food Allergy Research & Education (FARE) that should encourage hotels in these states to stock epinephrine:

  • Close to half of all fatal food allergy reactions are triggered by food consumed outside the home.
  • Most allergic reactions occur to foods that were thought to be safe, but which were mislabeled or cross-contaminated.
  • Teenagers and young adults are at the highest risk of fatal food-induced anaphylaxis.

While the average hotel guest may not ask whether a hotel stocks epinephrine or has someone certified in food allergy awareness on staff, guests with food allergies may, especially as they become more aware of legislation in these areas. Also, meeting planners or travel managers, arguably more savvy customers, may start including measures like these in their site selection decisions.

Ninety-four percent of meeting planners recently surveyed by the Professional Convention Management Association agreed that there has been a growth in dietary requests of attendees over the last 2-3 years. When asked what the biggest challenges with handling dietary restrictions were, 57% of the meeting planners surveyed said "added layers of work," while 38% said "logistical problems." Both of these responses seem to allude to the relationship between the group and the hotel in managing these issues. Meeting planners are looking for hotel partners who can make managing food allergies and dietary requests easier for them. This can be a service differentiator.

Several organizations offer training in food allergies. ServSafe, a well-known training and education firm in the hospitality industry, offers Allergen Training. For a $20 fee, anyone can take the 30-minute anaphylaxis and epinephrine auto-injector online course from the American Red Cross, which may satisfy the training requirement for states with entity stock epinephrine laws.

The legal landscape regarding food allergies is changing. Hotels need to review their current practices, consider additional training and certifications for staff involved with the preparation and handling of food, and review state laws that may allow or require certain practices regarding the management of food allergies. At the very least, managing food allergies well is good customer service. Having these measures in place may also help mitigate liability. At the very most, they may save a life.

Tyra Hilliard is an attorney, professor, and speaker. Her law practice focuses primarily on the relationship between hotels and meeting and event groups including group sales agreements, liability issues, intellectual property, and related issues. Before becoming an attorney, Ms. Hilliard held management roles in hotels, travel, meetings and events, and catering. It was this diverse base of experience that launched both her law and academic careers. A firm believer in walking a mile in someone else’s shoes, Ms. Hilliard is able to understand and commiserate with clients and students alike because she’s been there. Serving on the faculty of the College of Coastal Georgia, Ms. Hilliard teaches courses in business and hospitality, including Hospitality & Entertainment Law, Hospitality Crisis Management, and Event Management. Ms. Hilliard can be contacted at 912-506-8708 or tyra.hilliard@gmail.com Please visit http://www.tyrahilliard.com for more information. Extended Bio...

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