I do not consider my son to be disabled. He does most everything ten year-old boys do. He is an excellent baseball player and has dreams of playing in college or the big leagues. He is a fiery ball of incessant energy and commotion. You would never know there was something different with this boy just by looking at him, except for perhaps the Medic-Alert bracelet he wears because of his life-threatening allergies to peanuts and tree nuts.
People with severe allergies, such as allergies to peanut products, are at risk of anaphylaxis if they ingest or come into contact with the allergen. If anaphylaxis occurs, the person may suffer from breathing difficulty, a loss in blood pressure, unconsciousness and even death. Do the risks associated with this type of allergy make my son, and other people with severe food allergies, disabled?
Under the Americans with Disabilities Act (ADA), a disability is a physical or mental impairment that substantially limits one or more major life activity. 42 U.S.C. §12102(2). In 1999, the U.S. Court of Appeals for the 8th Circuit held peanut allergies do not qualify as a disability because they do not substantially impair the breathing of an otherwise healthy person, except when peanuts are ingested. See Land v. Baptist Med. Ctr., 164 F.3d 423, 424-25 (8th Cir. 1999). The episodic nature of the allergy symptoms was critical to the court’s determination that no disability existed.
In Fraser v. Goodale, 342 F.3d 1032, (9th Cir. 2003), the 9th Circuit took a different approach. It held that diabetes was a physical impairment under the ADA and eating was a major life activity. Id. at 1040. The further court stated that someone who cannot eat chocolate cake is not limited in a major life activity; however, peanut allergies might be a different story: "[o]n the other hand, peanut allergies might present a unique situation because so many seemingly innocent foods contain trace amounts of peanuts that could cause severely adverse reactions." Thus, the 9th Circuit left the issue open for debate.
Congress has not expressly addressed the situation, except to state that “an impairment that is episodic … is a disability if it would substantially limit a major life activity when active.” 42 U.S.C. § 12102(4)(D) (as amended by the ADA Amendments Act of 2008). So, it should be no longer relevant that a food allergy sufferer’s disabilities are episodic and triggered only when the person is exposed to an offending food. This is especially true in the employment context. This year, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations implementing recent amendments to the ADA. The regulations state that short term impairments can qualify as a disability under the ADA.
In light of the amendments to the ADA and new EEOC regulations, employers should recognize that many individuals previously unprotected by the ADA are now protected by the law. This means employers are less likely to prevail in litigation by arguing someone is not disabled. Instead, the focus will be on whether the employer’s policies or procedures for dealing with disabled individuals complied with applicable law. Personally, I have mixed feelings about considering my son as potentially “disabled” in light of all that he can and does do. However, I recognize that a large portion of the people protected by the ADA have impairments which are not visible to the naked eye, and my son may very well be one of them.
-Submitted by Spencer C. Skeen, Fisher & Phillips, LLC