Millions of people contend with food allergies, intolerances, and sensitivities, such as a peanut allergy or celiac disease. These allergies can lead to severe reactions, including anaphylactic shock, making them a serious concern for allergy sufferers. Particularly, many individuals with severe food allergies must take daily action to safeguard their health, including avoiding allergen-containing foods and carrying life-saving medication. So, are food allergies considered a disability?
Like most legal questions, the answer is that it depends. In the United States, a food allergy is considered a disability under the Americans with Disabilities Act. However, this is not the same as having a claim for Social Security Disability due to a food allergy, which may be very difficult to prove.
In Canada, severe allergies and environmental sensitivities are a recognized disability. Disability law applies to and protects individuals with allergies.
Continue reading to discover what rights and protections people with food allergies have in both Canada and the United States.
***Disclaimer: This post contains legal information. While I am a lawyer, I am not your lawyer. Nothing in this article should be construed as legal advice.***
![A sushi bowl with pieces of salmon in the middle and other toppings on the side, including corn, edamame beans, shredded carrots, tomatoes, and radish. Fish is a common food allergy.](https://i0.wp.com/dealingwithdisability.ca/wp-content/uploads/2023/10/allergy-fish-bowl-683x1024.webp?resize=640%2C960)
What is an allergy?
Allergic reactions occur when the body’s immune system reacts to a particular allergenic protein or irritant. Further, allergic reactions may develop quickly and rapidly progress from mild to severe. The most severe form of allergic reaction is anaphylaxis, which can result in death. Other allergic reactions may include swelling, hives, rashes, stomach cramps, tongue swelling, wheezing, or chest tightness, among many other things.
Someone with a severe allergy is generally considered to be someone who experiences significant physical distress when directly exposed to an allergen. Additionally, in severe cases, where a person might have a severe allergic reaction, individuals may need make considerations on a daily basis, including preparing their own food and carrying medication.
![Woman sitting on an orange couch blowing her nose due to illness.](https://i0.wp.com/dealingwithdisability.ca/wp-content/uploads/2023/10/allergy-couch-683x1024.webp?resize=640%2C960)
According to Health Canada, the most common allergies are:
- Eggs
- Milk
- Mustard
- Peanuts
- Crustaceans and Molluscs
- Fish
- Sesame Seeds
- Soy
- Tree Nuts (almonds, Brazil nuts, cashews, hazelnuts, macadamia nuts, pecans, pine nuts, pistachio nuts, walnuts)
- Wheat and Triticale (a hybrid of wheat and rye grains)
![a white plate full of almonds with several almonds on the table beneath it. The plate is on a burlap place mat.](https://i0.wp.com/dealingwithdisability.ca/wp-content/uploads/2023/10/Allergy-Nuts-1024x683.webp?resize=640%2C427)
Food Allergies in the United States:
Americans with Disability Act:
Both the Americans with Disability Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 state that a person with a disability is a person has a physical or mental impairment that seriously limits one or more major life activities, or who is regarded as having such impairments.
The ADA makes clear that physical or mental impairments do not need to be life-threatening to constitute a disability. As such, you do not need to have an anaphylactic food allergy in order for it to be considered a disability. Rather, an allergy may be considered a disability if it impacts major bodily functions or a major life activity, such as eating, breathing, working, or going to school. For instance, this includes individuals with celiac disease and others who have autoimmune responses to certain foods, which may include difficulty swallowing and breathing, asthma, or anaphylactic shock.
As of January 1, 2009, the ADA was amended, updating the definition of disability to specifically include an “impairment that is episodic or in remission … if it would substantially limit a major life activity when active.” 42 U.S.C. §12102(4)(D). Particularly, this amendment means that conditions like asthma and food allergies are disabilities, even if reactions are only sometimes present, or you can or do take medication to control symptoms.
While the ADA looks at disability on a case-by-case basis, severe allergies are generally considered to be disabilities under the ADA.
Discrimination:
The ADA borrows from Section 504 of the Rehabilitation Act, which says that agencies, programs, and services that receive federal funding cannot discriminate based on disability. In conjunction, these pieces of legislation ensure equal opportunity for persons with disabilities in:
- Employment
- State and local government services (schools, daycares, etc.)
- Public accommodations (like restaurants, hotels, stores, daycares, etc.)
- Commercial facilities (office buildings, factories, warehouses, etc.)
- Transportation (except commercial airplanes, which are covered under different legislation)
These places must be accessible to those with disabilities.
The U.S. Department of Justice has an ADA Hotline where you can get more information or file a complaint if you have faced discrimination based on disability. The ADA Hotline number is 800-514-0301 (voice) or 800-514-0383 (TTY).
![Woman sitting on a chair in a black sweater using a lint roller. On a green chair beside her is an orange cat. The image depicts how people can have allergies to pets.](https://i0.wp.com/dealingwithdisability.ca/wp-content/uploads/2023/10/allergy-cat-1024x683.webp?resize=640%2C427)
The Lesley University Case:
In an interesting legal case, in 2012, the Justice Department entered into an agreement with Lesley University in Massachusetts to ensure that its students with celiac disease and other food allergies can fully and equally enjoy the university’s food services in compliance with the ADA, after students complained that the university’s mandatory meal plan violated their disability rights as it did not provide gluten-free options. Before the legal complaint, the university required all students living on campus to pay for and participate in its meal service plan. Basically, the issue was that some students with severe allergies could not eat the food provided. Under the agreement, the university agreed to several things, including:
- Making modifications to its meal plan to allow students with food allergies to use it
- Consider exempting students from the mandatory plan who cannot, due to disability, take advantage of the meal plan
- Provide gluten-free and allergen-free food options
- Allow students with known allergies to pre-order allergen-free meals
- Display notices concerning food allergies and identify foods containing specific allergens
- Train food service and university staff about food allergy-related issues
![a yellow background with three ice cream cones lying upside down. One cone has blackberries and raspberries coming out of it, one has strawberries coming out, and one has cherries.](https://i0.wp.com/cdn.shortpixel.ai/stsp/to_webp,q_lossy,ret_img/http://dealingwithdisability.ca/wp-content/uploads/2023/10/wheat-allergies-1024x768.webp?resize=640%2C480&ssl=1)
Social Security Disability:
To apply for Social Security Disability because of a food allergy, you will need to prove that your severe food allergy causes extreme limitations in being able to work. Explicitly, you will have to show how your allergy affects your ability to work, which may be very difficult to prove. If you have very serious food allergies, you may be eligible for disability benefits. Applications are considered on a case-by-case basis. They will review extensive documentation, including your personal information and medical records. If you think you are eligible, you should seek personal legal advice.
Food Allergies in Canada:
In Canada, severe allergies and environmental sensitivities are a recognized disability. Someone with a severe allergy is generally considered to be someone who experiences significant physical distress when directly exposed to an allergen. This reaction is a medical condition and recognized as a disability under the law.
Some provincial human rights tribunals, including in Ontario, have found that allergies are a disability requiring accommodations, even where it is not an anaphylactic allergy.
Canadian Charter of Rights and Freedoms:
The Canadian Charter of Rights and Freedoms (“Charter”) applies to all government laws and policies, including at the federal, provincial, and municipal levels. All human rights legislation in Canada is interpreted in light of the Charter.
Section 15 of the Charter provides that every individual has the right to freedom from discrimination on various grounds, including disability. And disability is defined very broadly under Canadian law.
![a white background with a burlap placemat. On the placemat is a wooden bowl of brown eggs, to portray common food allergy in Canada.](https://i0.wp.com/dealingwithdisability.ca/wp-content/uploads/2023/10/Allergy-egg-1024x684.webp?resize=640%2C428)
Accessible Canada Act:
The Accessible Canada Act defines “disability” as:
“any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment – or a functional limitation – whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society”.
And “barrier” as:
“anything – including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice – that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation”.
![a close up of a a purple flower to show pollen allergies.](https://i0.wp.com/dealingwithdisability.ca/wp-content/uploads/2023/10/Allergy-Pollen-726x1024.webp?resize=640%2C903)
Canadian Human Rights Act:
The Canadian Human Rights Act also provides protection to people with allergies and environmental sensitivities. As such, employers are required to accommodate those with allergies and sensitivities.
The duty to accommodate means that employers must provide reasonable accommodations in the workplace. Some accommodations could include reducing the use of chemicals, having a scent-free policy, or purchasing less toxic products. If your employer discriminates against you based on disability, you can file a complaint with the Canadian Human Rights Commission.
![a loaf of sliced bread with flour and crumbs around it, showing a food allergy to wheat.](https://i0.wp.com/cdn.shortpixel.ai/stsp/to_webp,q_lossy,ret_img/https://i0.wp.com/dealingwithdisability.ca/wp-content/uploads/2023/10/wheat-allergy-scaled.webp?resize=300%2C200&ssl=1)
In Short:
Allergies are considered disabilities when it comes to equal access and accommodations. Recognizing severe allergies as disabilities has significant implications, leading to the requirement of reasonable accommodations in various settings, such as schools, workplaces, and public accommodations. Individuals are entitled to equal access to allergen-free food, medical accommodations, and protection from allergen exposure. However, it will likely be very difficult to successfully claim Social Security benefits based on allergy alone.