FAACT's Roundtable

Ep. 250: Accommodations in the Workplace and Public Entities

• Season 5 • Episode 250

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Food allergy accommodations don’t stop at the classroom door—they extend into workplaces, public spaces, and even stadiums. But what rights do you actually have? Today, we’re joined by FAACT’s General Counsel, Amelia Smith, JD, to break it all down and help you understand your civil rights.

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Caroline: Welcome to FAACT's Roundtable, a podcast dedicated to navigating life with food allergies across the lifespan. Presented in a welcoming format with interviews and open discussions,

each episode will explore a specific topic, leaving you with the facts to know or use.

Information presented via this podcast is educational and not intended to provide individual medical advice.

Please consult with your personal board-certified allergist or healthcare providers for advice specific to your situation.

Caroline: Hi everyone, I'm Caroline Moassessi and I am your host for the FAACT Roundtable Podcast.

I am a food allergy parent and advocate and the founder of the Grateful Foodie Blog. And I am FAACT's Vice President of Community Relations.

Before we start today, I just want to say thank you to DBV Technologies for being a kind and generous sponsor of FAACT's roundtable podcast.

Caroline: Food allergy accommodations don't just stop at the classroom door. They extend into workplaces, public spaces, and even stadiums. But what rights do you actually have?

Today we're joined by FAACT's General Counsel Amelia Smith, JD, to break it all down and help you understand your civil rights.

Welcome back Amelia to FAACT's Roundtable Podcast. We're always excited to have you back on to talk to us about civil rights and all the legal things that we need to understand.

So thank you for being on the podcast today.

Amelia: I always enjoy being here, so thanks for having me again.

Caroline: You are very welcome.

To kick things off, can you help us understand what workplace and public entity accommodations look like and then how do they differ from the accommodations we're more familiar with in the K12 or even college campus setting?

Amelia: Certainly, Caroline,

In schools, whether we're talking K12 or college, we are typically talking about Section 504 of the Rehabilitation Act of 1973.

As to K12 and college and then K12, we also look at the Individuals with Disabilities Education Act.

Parents help advocate for their child in the K12 setting.

In the workplace, we look at title one of the ADA, which requires that employers with 15 or more employees provide reasonable accommodations to their employees with disabilities unless doing so would create an undue hardship for that employer.

Which when we talk about undue hardships for employers, we typically are looking at the cost.

Is it too expensive or will it cause too much of a disruption to the business of that employer?

So that's what we look at in our kind of parameters for employment coverage.

Now, places of public accommodation are covered by Title 2 and Title 3 of the ADA.

Title 2 covers state and local government services like buses,

other public transportation, public schools, courthouses, libraries,

things controlled by a governmental entity Title 3 covers private businesses open to public restaurants, hotels,

stadiums, theaters, grocery stores, those types of places, excluding, of course, airlines, which are covered under a different law.

Across the public entity space,

the standard is the same.

The accommodations must be reasonable, which for places of public accommodation,

that means that practical adjustments that allow equal access but don't fundamentally alter the service or business.

So that would be the situation of someone coming into a shellfish restaurant and saying, I'm allergic to shellfish and I can't be exposed to the steam. You know, you need to quit serving shellfish while I'm here.

Something of that nature that just completely and totally alters the services provided by that business.

Those are the standards for places of public accommodation.

Caroline: So let me ask you a real quick side question here. You mentioned employers who have 15 or more employees. What happens if someone's working for a company and there's only five, five employees?

Amelia: That's a great question, Caroline, because I think that is something that I need to call attention to here. When we talk about accommodations,

we generally are talking about federal disability law. Different states provide different protections at the state level.

There are some states that do provide protections for the employees that fall in that gap between 0 and 14.

But then there are some states, like yours truly's home state, that doesn't offer state level protections. And so if you're not working for an employer with 15 or more employees,

you may be out of luck. Of course, there are other options, other ways to advocate. I never want to tell somebody, don't try. There are good employers out there, of course, who will.

The bad, of course, is always the exception to the rule. We talked about that. I believe on the last poll podcast, more good comes out of these laws than bad.

Caroline: So now how would someone find out if their state has more accommodations or not? Like, so what would you suggest to me if I was looking in Nevada?

Amelia: Okay, so on FAACT's website, of course, in this accommodation section now, Civil Rights Advocacy Resource Center,

we have a link to local resources.

You can go to that site and look for your state's protection and advocacy organization.

They were created and are funded federally. Every state's required to have one. Every state does. And so there we have the link to the overall, like the, the big network of the protection and advocacy organizations for every state.

And then there should also be a way to go through there to find your state's protection and advocacy organization.

Some states have one, some states have more. It depends on the size and the need of your state.

You have one. And I think that's a great place. Just like the state parent training and information centers created under the IDEA are great resources for school accommodations.

Your state protection and advocacy organization is going to be a great local organization. Great local resource for both employment and places of public accommodation.

Some even cover schools as well.

Caroline: This is great advice. Thank you.

So now let's focus on workplace accommodations. And one question I see asked very often online is when do you tell your employer or team members about your food allergies? Like do you do it when you're interviewing?

Do you do it on first day? Do you wait till you get to know people? Like,

that's the kind of question I'm hearing often.

Amelia: And that's a great question.

Because disclosure in general is completely voluntary under the ada.

You only need to disclose to your employer that you have a disability if you're requesting an accommodation.

Of course, you know there are other considerations to keep in mind here as well. Not just the disability law implications of this disclosure,

but you, you also really,

right off the bat, need to consider the safety implications of disclosure.

It is wise to disclose to coworkers if you're not disclosing to your employer. Someone at your place of employment that is going to be there consistently needs to know that you have food allergies and how to respond in an emergency.

That said, if you have a trusted coworker and you're not comfortable telling your employer, by law, you don't have to if you're not requesting accommodations.

But if you are,

the standard of course is reasonableness, which means that the changes are effective and not burdensome to the employer, which again basically comes back to money as we as it usually does,

or to disruption.

Also, another thing to keep in mind when you're concerned about this self disclosure is that the ADA prohibits retaliation,

so employers cannot fire or demote you for disclosing your disability.

They can't do it legally, of course, the law is not standing in the doors.

But again, those are the exceptions to the rule.

Caroline: On that note,

is there a formal process for securing a food allergy accommodation if someone decides, okay, I really need one here in the workplace, is there a formal process or how does that begin?

Like how would someone even start?

Amelia: Well, of course, Caroline, you need to request accommodations.

A plain language request is enough. HR is typically who you would request these from. Whoever fulfills the HR position. It's your place of employment. I would start there.

And as I often suggest we do when we request accommodations in schools,

it of course is best that this be in writing and it could be something as simple as I have a food allergy and need an accommodation.

Or in my case,

I have inflammatory arthritis,

I need help typing,

I need an accommodation for typing.

That's one that I've had to do here recently and I got dictations. All where employers can request that you provide them with medical documentation.

Usually a simple doctor's note of noting that you, you have food allergies and you need xyz.

Just as in schools when it's really a negotiation back and forth, employers are required to engage in an interactive process with their employees.

What you request may not be feasible for your employer, but they have to be willing to meet you in the middle and work towards an accommodation that works for you both.

And again,

you need to keep in mind that reasonable in the workplace means adjustments that help you do your job safely and without imposing an undue hardship on your employer.

Some examples, keeping epinephrine on you. You know, we see more and more frequently these days, especially post Covid employers that don't allow employees to have personal items on them. You may need an accommodation to be allowed to carry your epinephrine and that's beyond reasonable.

But you can't enforce it unless you request it. You may need catering or catered events adjusted, menus changed. You may need to ensure of course that you have a safe meal provided.

That would be an example of a reasonable accommodation training colleagues on how to respond in an emergency,

what to do if you go into anaphylaxis.

Having someone trained could be an accommodation, especially if you're not familiar with anyone yet. You know, if you're starting in a new job,

that's going to be an important thing to have designated and sometimes it's more comfortable to have your employer do that.

Caroline: Those are some really good real world examples and some really good tips in there.

So now switching gears for just a hot moment here. How do we address public entities? So for example, carrying epinephrine into a security event where they don't want you carrying a purse or a backpack or anything like this, but you do need to carry a purse or a backpack to hold your medications.

That's just one example.

Amelia: So again, as we discussed in the beginning, title two covers governmental run services and title three covers private businesses.

But beyond that they both require the same thing that these places of public accommodations make reasonable modifications unless it would fundamentally alter the service that they offer and provide.

Some examples would be a bus allowing epinephrine, you know, libraries allowing food for diabetic individuals, things of those nature,

stadiums allowing safe food or, you know, amusement parks, allowing safe outside food. I know that's a huge thing in the food allergy community. There are a lot of them that still don't allow outside food.

And so that comes into play here as well.

The only time a denial of a reasonable accommodation request is valid is if the change would fundamentally alter the service or create an unavoidable safety risk.

So again, here we're talking the shellfish restaurant being asked not to cook shellfish while that guest is there. 

or the person with asthma and severe allergies to animal dander going to a zoo and asking them to close off the animal enclosures while they're present. That's just completely and totally unreasonable.

But beyond that,

sheer inconvenience for that place of public accommodation is not an excuse,

nor is, oh, we lose money from not selling you our $12 hot dog that your child or you can't consume.

Caroline: Great examples. Again,

this has just been so very helpful because this is a new frontier.

And a lot of these food allergy children are entering the workforce now.

Every school year. They're graduating, they're going into the workforce and they're graduating college and they're getting into the workplace. And this is just a conversation that is much needed right now.

So I really appreciate it.

So before we say goodbye today, is there anything else that you want the listeners to hear from you?

Amelia: One of the things that we've worked on at fact, here in the last few years is really teaching our,

our students to advocate for themselves. And I think there's still some of us adults that need to know how to advocate for ourselves.

And so, you know, you may have a scenario where you're going through security and told no,

I think it's important to know how to advocate for yourself. Of course we want to remind you to stay calm.

That's one of the places that most people struggle. Whether we're looking at those seeking accommodations in schools or in places of public accommodation. We're very protective and this is a risk that we face every day.

But it's our lives or the lives of our loved ones.

Yes, it can be a very emotional or triggering situation. So it's important to stay calm and explain the medical necessity of the accommodation you're requesting.

And that's protected under the ada.

We say carrying a doctor's note is not necessary. It is not. These places, public accommodation cannot demand that you provide them with a doctor's note.

They can't demand that you tell them what your diagnosis is.

They can only ask how it limits one or more major life activity and what alternative or modification you need.

But carrying a doctor's note can help.

Still,

it's persuasive. It's another measure of persuasions that we can use.

Also, you can ask, of course, to speak with a supervisor if you get staff pushback. And again, I know most of us don't want to appear as apologies to all people so named Karens.

This isn't a matter of inconvenience. This really is a matter of safety.

And sometimes inconveniencing others is going to be necessary, no matter what we're dealing with.

It's not just food allergies. I inconvenience people all day, every day. I'm sure we all do.

Your safety is important.

So it is important for you to really become comfortable advocating for yourself if you're not already.

And again, I say, as we've done with our students,

one good way to do this is to role play.

So if you're listening to this, you're already well on your way to learning how to advocate for yourself or improving your advocacy skills.

Because knowing your rights is the first step to staying safe and included and your fact family is always here for you.

We offer one on one contact with individuals and families needing accommodation conversations.

I don't give advice. I am an attorney, as we know,

but I'm only licensed to the state of Mississippi.

So unless you're in Mississippi, I cannot give you legal advice.

I can speak to you as someone who has experience and knowledge in this area, specialized knowledge.

And that's probably my favorite part of this job is that that contact with,

with individuals or with families.

So please, you know, don't hesitate to reach out.

Caroline: Amelia, thank you for sharing your knowledge and listeners. I'll make sure I have Amelia's email in the show notes so if you need to reach out, you can get her. But than so much Amelia, for your time.

I know you're so busy and we just appreciate you so much.

Amelia: We appreciate you too, Caroline. Thank you.

Caroline: Before we say goodbye today,

I just want to take a moment to say thank you to DBV Technologies one more time for being a kind and generous sponsor of FAACT's Roundtable podcast.

Caroline: Thank you for listening to FAACT's Roundtable Podcast. Stay tuned for future episodes coming soon.

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Have a great day and always be kind to one another.