A reader of this blog who is a San Francisco attorney, Karyne T. Ghantous, recently addressed our post “Can a chef who is severely allergic to food be accommodated in a restaurant? Is a nut allergy a "disability? Her incisive comment below is worth reading:
“This is sure to be a hot topic in the future, if it is not already. A UCLA study recently found that "the occurrence of allergic disease is skyrocketing, and some estimates are that as many as one-in-five Americans have an allergic condition."
I believe persons with nut allergies could qualify their medical symptoms as a "disability" under FEHA which defines a physical disability as "any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech, organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult."
Physical disability also includes any other health impairment that requires special education or related services; having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment which is known to the employer; and being perceived or treated by the employer as having any of the aforementioned conditions. Assuming a documented nut allergy is known to the employer, a restaurant owner would then be required to provide a reasonable accommodation unless they can prove an undue hardship to the business operation.
The question thus becomes fact dependent. For example, whether it is reasonable to require that particular restaurant to provide some type of reasonable accommodations, like providing the chef with an assistant to handle allergy producing foods. However, if the chef has a severe allergy and cannot be around nuts without risking an allergic response, the restaurant owner could establish that a reasonable accommodation is not possible or would produce a liability to the restaurant, resulting in a cost to the restaurant that outweighs the chef’s accommodation needs.
Ultimately, the analysis of these cases is likely going to have to be factual specific and will depend on the restaurants’ ability to demonstrate the feasibility of the accommodation in relation to its cost which may or may not be found to be a "reasonable accommodation" under the law.”