Don’t Be the Unfortunate Boss Who Shrugs Off a Food Allergy

Tricks and Treats

By Stefanie Renaud, Esq.

October in Massachusetts is a beautiful time, filled with colorful leaves, bright orange pumpkins, and pleasant fall weather. For most of us, Halloween marks a time of fun and revelry, complete with costumes, good-natured pranks, and lots of candy.

Even workplaces get in on the fun, holding costume parties and providing candy to sugar-deprived employees. But for employees with food allergies — about 15 million people across the U.S. — Halloween can be full of increased exposure risk from holiday ‘treats’ and potentially life-threatening reactions to innocent ‘tricks.’

This Halloween, avoid having a holiday horror story of your own.

Dirty Tricks

Everyone loves a good prank, but what if that trick was life-threatening to an employee? The employer might be liable for discrimination. That’s what happened to Panera LLC last fall, when a former employee sued, alleging that Panera violated Title VII of the Civil Rights Act of 1964 by allowing harassment against him based on his food allergies.

Plaintiff Dustin Maldonado alleged that his manager and co-workers taunted him about his allergy, intentionally exposed him to peanuts, tricked him into eating nut-laced food items, and teased him that his EpiPen would spread AIDS. One time the manager ‘pranked’ Maldonado by leaving peanut butter outside his office. Another time, the manager ‘tricked’ Maldonado, telling him that his co-workers had made dinner for him, then placed peanut-butter-filled treats into Maldonado’s uncovered hands, causing an allergic reaction. After the incident, Maldonado filed a formal complaint with the human resources department, which allegedly told Maldonado to have a better sense a humor about the situation.

Although liability in this case remains to be seen, employers should be aware that even innocent-seeming pranks can result in potential legal liability.

You might be thinking, who on earth would think it was OK to intentionally expose someone to an allergen, even as a prank? More people than you think, apparently. In the Sept. 29, 2016 edition of the Washington Post’s advice column, another employee with food allergies wrote in, seeking advice. According to the employee, she had repeatedly asked a co-worker to not bring or consume peanut products in the office, due to the employee’s severe allergy. A few months later, the employee sat at her desk and began to notice reaction symptoms.  Finding a smear of peanut butter on her hand, the employee looked under her desk and found a large glob of peanut butter smeared on her desk. When the employee called her boss, he shrugged it off and told her he “didn’t think [the employee] should be able to dictate what others can eat.”

That’s the wrong answer. Be sure to keep an eye out for the forthcoming lawsuit!

Killer Treats

What about those candy bowls spread around the office? Obviously, it is easy enough to know that peanut-butter cups might be a trigger for a person with food allergies, but what about those deluxe Halloween cookies your co-worker makes each year? They can also pose an exposure risk, and possibly lead to litigation.

In March 2015, a family sued the grocery chain Publix after their son died after eating a mislabeled cookie. The family purchased the cookie from the bakery section of the store only after being told it was nut-free, as no ingredients were listed, and there was no allergen warning. Despite this assurance, the little boy had a severe reaction to the cookie, which contained walnuts, and he eventually died.

While there are no similar cases where an employer was found liable for exposure to treats brought in by another employee, it is plausible that such a suit could occur, particularly if the treats were shared as a part of company-sanctioned festivities. Thus, employers may need to be cautious when encouraging employees to share homemade treats during the Halloween season.

My Employee Has a Food Allergy, So What?

Depending on their severity, food allergies may be covered by the Americans with Disabilities Act (ADA) or similar state laws. The burden is on the employee to alert the employer to their food allergy.  Once an employee has done so, management must treat the claim seriously.

If the employee is seeking accommodations because of their allergy, the employer should follow the ADA protocol the same as it would with any other potentially disabled employee. The employer may request documentation of the allergy before granting an accommodation. If the medical documentation shows that the employee in fact suffers from a disabling condition, the employer needs to engage in the interactive process and brainstorm accommodations that would allow the employee to perform the essential functions of the job.

If there are no such accommodations, then the employee is simply not qualified for the position. However, you should not simply dismiss a request as unreasonable until you have fully explored whether it would, in fact, be possible. Remember, showing that an accommodation is unreasonable because it would present an undue hardship is a very high burden. Finally, the ADA’s anti-retaliation provisions mean that you cannot fire someone just because they have a food allergy or because they asked for an accommodation for that food allergy.

Around the workplace, employers can take a few easy steps to reduce their employees’ risk of exposure to food allergens. Employers may wish to conduct training on the risks associated with food allergies and helping employees recognize the signs of an allergic attack in others. Employers should consider posting signage in kitchen areas and providing disposable plates, cups, and utensils for use by employees with allergies.

Finally, employers must treat employees with food allergies, and their related needs, seriously. Don’t be the boss who shrugs off a food allergy.

Stefanie Renaud, Esq., is an associate with the law firm Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters; (413) 737-4753; [email protected]