Tuesday, February 12, 2013

DOJ clarifies ADA/allergy requirements--sort of

As Restaurant Reality Check reported earlier, the U.S. Department of Justice recently dropped a bombshell when it publicly stated that food allergies could qualify as a disability under the Americans with Disabilities Act.
The declaration sent a shiver through the restaurant business. As public facilities, restaurants are mandated by law to make accommodations for consumers with disabilities. Would places now be required to stock alternatives for people who can’t eat gluten, soy, dairy or seafood? Would they need special prep areas to prevent cross-contamination, or refrigerators reserved for allergen-free ingredients?
The fears weren’t far-fetched. The Department of Justice turned its attention to food allergies because students at Massachusetts’ Lesley College had complained that the school’s meal plan didn’t accommodate their gluten intolerance. Justice stepped in and filed a lawsuit under the ADA, but the matter was settled out of court after Lesley agreed to make a number of major concessions, including $50,000 payments to each of the offended students.
The college also had to add gluten-free choices and to set up a separate prep area—in effect, a kitchen reserved for gluten-free items.
In case other foodservice establishments missed the implication, DOJ said it point-blank in the Lesley lawsuit settlement: “Food allergies may constitute a disability under the ADA.”
Justice must’ve heard the fretting that followed because it quickly (but quietly) posted a clarification in Q&A form.  Kudos to the National Restaurant Association for spotting the commentary and commenting on the comments.
The central question that DOJ addressed, in its own words: “Is a food allergy considered a disability under the ADA?”
As a reminder, here’s the answer Justice put forth in the Lesley settlement: “Food allergies may constitute a disability.”
In the recent amplification: “It depends.”
“The ADA does not require that every place of public accommodation that serves food to the public provide gluten-free or allergen-free food,” DOJ explained.
Rather, “reasonable steps” can be expected. According to Justice, those actions can be as simple as offering information about a dish’s ingredients. If a place customizes what it serves, it may not be unreasonable to expect the tweaks to include the removal or avoidance of allergens, the agency continued.
What is not necessary, Justice specified, is “a fundamental alteration,” a change that changes the character of a dish or a concept. “For example, a restaurant is not required to alter its menu or provide different foods to meet particular dietary needs,” it wrote.
So a restaurant should provide allergen-free versions of menu items if it can do so without too much trouble, but it’s not necessary to offer options that a sufferer can eat?
Oh, yeah, that’s clear.

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