Article

Celiac Disease and Food Allergies at Work: Your ADA and FMLA Rights

How the ADA and FMLA protect workers with celiac disease and serious food allergies, including coverage based on digestive, bowel, and immune system functions, symptoms that come and go, why a gluten-free diet or an epinephrine auto-injector does not erase coverage, meal, break, food storage, and workspace accommodations, telling coworkers and first aid staff, documentation and medical questions, FMLA intermittent leave, retaliation, and deadlines.

8 min read

How Celiac Disease and Food Allergies Can Qualify as Disabilities

Title I of the Americans with Disabilities Act applies to private employers with 15 or more employees for 20 or more weeks in the current or preceding calendar year and to state and local government employers; federal workers are covered through the Rehabilitation Act, and many state laws reach smaller employers. MedlinePlus describes celiac disease as a chronic digestive and immune disorder that damages the small intestine, triggered by gluten, a protein found in wheat, barley, and rye, and it describes a food allergy as an abnormal immune system reaction to certain foods that is usually mild but can be serious or even life-threatening. Under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i), major life activities include eating and working, as well as the operation of major bodily functions, including functions of the immune system and digestive and bowel functions, and for a severe allergy that can affect the airways, respiratory function. Coverage is decided individually rather than by diagnosis alone, and a mild intolerance may not qualify, but the ADA's definition of disability is meant to be construed broadly, and the question is how the condition limits you compared with most people in the general population.

Symptoms That Come and Go and Why Treatment Does Not Erase Coverage

MedlinePlus says celiac symptoms differ from person to person and may come and go, with digestive problems such as diarrhea, bloating, and belly pain as well as fatigue, bone or joint pain, headaches, and an itchy, blistering rash, and it says food allergy symptoms usually start within a few minutes to two hours after eating and can include hives, swelling of the face, tongue, or lips, vomiting, and trouble breathing, and in rare cases anaphylaxis, a medical emergency. Under 29 CFR 1630.2(j)(1)(vii), an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active, so a severe reaction or a flare after accidental gluten exposure can count even if you feel fine most days. Under 42 U.S.C. Section 12102(4)(E) and 29 CFR 1630.2(j)(1)(vi), the helpful effects of mitigating measures, which 1630.2(j)(5) says include medication and medical supplies, are ignored, so carrying an epinephrine auto-injector or taking antihistamines does not erase coverage. MedlinePlus says the treatment for celiac disease is following a gluten-free diet for life and that the only way to prevent an allergic reaction is to avoid the food, and under 1630.2(j)(4)(ii), the burdens associated with following a particular treatment regimen may be considered in deciding whether an impairment is substantially limiting.

Accommodations for Meals, Breaks, and Your Workspace

Under 42 U.S.C. Section 12111(9), reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, and acquisition or modification of equipment, and the EEOC's reasonable accommodation guidance also treats modifying workplace policies as a form of accommodation. Depending on your condition, requests might include flexible meal and restroom breaks, permission to bring and keep your own food and a place to store it separately, a workstation away from shared food areas or common allergens, cleaning of shared surfaces or equipment, an exception to a no-food or no-medication-at-your-desk rule so you can keep an epinephrine auto-injector with you, being excused from tasting or handling a food that triggers reactions, safe food options or permission to bring your own at required work meals and travel, or working from home during a flare, as long as the change does not cause undue hardship, which 29 CFR 1630.2(p) defines as significant difficulty or expense. If more than one accommodation would work, the EEOC says your preference should be given primary consideration, but the employer has the ultimate discretion to choose among effective options, and it is not required to eliminate an essential function of the job, such as preparing a certain food in a kitchen role. If no accommodation would let you perform the essential functions of your current job, reassignment to a vacant position you are qualified for may be required as a last resort.

Telling Coworkers, First Aid Staff, and Your Manager

Under 42 U.S.C. Section 12112(d)(3) and (4) and 29 CFR 1630.14, medical information an employer obtains must be kept in separate, confidential medical files, with limited exceptions: supervisors and managers may be told about necessary restrictions on work duties and necessary accommodations, and first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment. That exception is meant for people who may need to respond to a reaction, not for general gossip, so a manager should not announce your diagnosis to your team without your agreement. You can choose to share more yourself, for example asking coworkers to keep a common allergen out of a shared space or explaining where you keep your auto-injector, and it helps to put that request in writing to your employer so it is clear that you asked for the change as an accommodation. Jokes, deliberate exposure to a food you are allergic to, or pressure to eat something that makes you sick because of your condition can be evidence of disability harassment.

Documentation and Medical Questions

When the need for accommodation is not obvious, the EEOC says an employer may ask for reasonable documentation about the disability and the functional limitations involved, but not for your complete medical records. MedlinePlus says celiac disease is most often diagnosed with blood tests and a biopsy of the small intestine, and that food allergy testing can involve skin testing, blood testing, an elimination diet, or an oral food challenge, so a note from your gastroenterologist or allergist describing what you must avoid, what exposure can do, and what changes you need is usually more useful than a diagnosis alone. Under 42 U.S.C. Section 12112(d)(4)(A), an employer may not require a medical examination of a current employee or ask about the nature or severity of a disability unless the examination or inquiry is job-related and consistent with business necessity. The EEOC also says reasonable accommodation is always prospective, so it helps to make your request before missed shifts or a reaction at work turns into discipline.

FMLA Leave for Flares, Reactions, and Appointments

Under 29 CFR 825.110, an eligible employee has worked for the employer for at least 12 months, has at least 1,250 hours of service in the 12 months before leave starts, and works at a location where the employer has at least 50 employees within 75 miles, and eligible employees can generally take up to 12 workweeks of job-protected leave in a 12-month period. Under 29 CFR 825.115(c), a chronic serious health condition is one that requires periodic visits, at least twice a year, for treatment by a health care provider, continues over an extended period of time, and may cause episodic rather than continuing periods of incapacity, and under 825.115(f), an absence for such a condition can qualify even if you do not see a provider during that particular absence. Under 29 CFR 825.202, FMLA leave may be taken intermittently or on a reduced leave schedule when medically necessary, which can cover days lost to a celiac flare, recovery after a serious allergic reaction or emergency room visit, or appointments with a specialist or dietitian. Even if you are not eligible for FMLA, unpaid leave can also be a reasonable accommodation under the ADA.

Retaliation and Deadlines

Under 42 U.S.C. Section 12203, an employer may not retaliate against you for requesting an accommodation, opposing disability discrimination, or taking part in an ADA charge or investigation, or coerce, intimidate, threaten, or interfere with you for exercising ADA rights, and under 29 U.S.C. Section 2615, an employer may not interfere with FMLA rights or discriminate against you for using protected leave. Keep a written record of your accommodation requests, each response, any reactions or exposures at work, and any discipline, schedule change, or termination that follows, including dates and the names of the people involved. A charge with the EEOC generally must be filed within 180 calendar days of the discriminatory act, extended to 300 days where a state or local agency enforces a law prohibiting the same kind of discrimination; federal employees generally must contact an agency EEO counselor within 45 days. FMLA claims do not go through the EEOC and have their own deadlines, so it helps to get advice from an employment lawyer early.

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