Dov Lutzker, Senior Counsel in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in HR Dive in “Mailbag: When is an Employee’s Food Allergy an ADA ‘Direct Threat’?” by Ryan Golden.
Q: Our company operates a food manufacturing facility that processes tree nuts. Would an employee with a tree nut allergy present a “direct threat” within the meaning of the Americans with Disabilities Act?
A: In a nutshell, maybe. The U.S. Equal Employment Opportunity Commission’s ADA enforcement regulations define direct threat to mean the existence of “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
There are a number of factors regulators consider in assessing direct threat, Dov Lutzker, senior counsel at Epstein Becker Green, said in an email to HR Dive. These include:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur
- The imminence of potential harm
Assessment of direct threat occurs on a case-by-base basis using current medical knowledge and objective evidence, Lutzker added, including information from medical providers and direct interaction with the employee to determine whether they can safely perform essential job functions.
“Employers need to base their direct threat analysis on the individual and the specific evidence in each case, and not on speculation, stereotypes, fears, or subjective perceptions,” Lutzker said.
In the example above, the employer would need specifics on the nature of the employee’s allergy. Necessary details include the allergy’s severity, the mechanism by which it can be triggered (e.g., airborne exposure or eating a nut) and the nature of the allergic reaction, if applicable.
The employer then must consider whether any potential harm can be prevented, Lutzker continued, whether by removing the food exposure or relocating the employee to a different part of the jobsite in a manner that does not pose undue hardship to the employer.
The employer also might consider whether any allergic reactions could be mitigated if triggered, including through the use of a medical device like an EpiPen. The Job Accommodation Network lists several potential workplace accommodations for food allergies depending on the type of reaction an employee experiences.
If an employee’s allergic reaction is severe and cannot be mitigated and the employee cannot be transferred absent undue hardship, Lutzker said the employer could conclude that the employee poses a direct threat — but only if it does so based on an individualized assessment and objective evidence.
“We can’t generalize since it needs to be fact- and case-specific,” Lutzker continued, “but yes, there are cases where the employer can go through the process and lawfully conclude that the employee poses a direct threat [and] therefore can be terminated or not hired.”
