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Must we employ someone with allergies?

by on
in Employment Law,Hiring,Human Resources

Q. We recently hired someone we didn’t know has a severe allergy to peanuts. If she even smells peanut butter, she has a severe allergic reaction, requiring her to use an EpiPen and head to the emergency room. Could we have refused to hire her if we had known about her allergies?

A. It depends. The first issue is whether an allergy qualifies as an ADA disability. An individual has a disability if she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment or is regarded as having such an impairment.

The ADA Amendments Act of 2008 requires ­employers to broadly interpret “disability.” The law significantly expanded the scope of individuals who are considered to have a disability.

Someone with severe allergies may qualify as disabled because the allergies would substantially limit a major life activity, such as breathing or eating. Note that mitigating measures (such as an EpiPen) should not be considered in determining whether the allergies substantially limit a major life activity. An impairment that is episodic, such as allergies, is a disability if it would substantially limit a major life activity when active.

You should not institute an outright ban on hiring people with severe allergies. Do not ask questions that would reveal that an applicant has a disability. If, after extending a job offer, you discover that someone has severe allergies, thoroughly consider whether the individual can perform the job duties, whether you can accommodate the individual’s allergies and whether she poses a significant risk of substantial harm to herself because of the allergies.

You should work with your recent hire to provide reasonable accommodations. Generally, employers that proactively work with an employee’s disability are less likely to have to defend against disability-discrimination or failure-to-accommodate claims.

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{ 2 comments… read them below or add one }

Marlena Delgado Coen January 9, 2013 at 7:58 pm

Last November we went to a Food Allergy Teen Summit organized by FAAN and once again it was amazing to see that most, if not all, of the food allergic kids are very smart, independent, and responsible. Having to grow up knowing that you could die from touching a food seems to not only make kids mature earlier but somehow it makes them become leaders, passionate about everything they do, and somehow smarter.

If I was asked to start a company where I had to look for only non-allergic individuals or only food allergic ones, I would for sure choose the second group and hire the food allergic individuals.

Managing food allergies to accommodate employees is easier than most people think. Implementing food allergy awareness programs and providing specific food ingredients in companies cafeterias could actually help improve the health of all employees. Why? Thanks to having a son with food allergies, everyone at home eats healthier and as a result we are in better shape than we would have been if thinking about ingredients and food preparation was not a “must” for us.

Don’t hesitate. Hire the food allergic candidate!

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pinx millares January 9, 2013 at 11:48 am

Yeaahh

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