Accommodations
GUEST BLOG: COVID-19 and Students With Food Allergies
Amelia G. Smith, JD
General Counsel and Vice President of Civil Rights Advocacy
The Food Allergy & Anaphylaxis Connection Team
The COVID-19 Pandemic has effected every aspect of our lives, including the rights of individuals with food allergies. The Food Allergy & Anaphylaxis Connection Team’s (FAACT) Civil Rights Advocacy Division has been and is still actively monitoring and researching the impact of COVID-19, related directives and guidelines, school closures, and the impact of the CARES Act on the rights of individuals with food allergies. One area of great concern that has arisen is the CDC’s “Interim Guidance for Administrators of US K-12 Schools and Child Care Programs,” released March 25, 2020, May 2020 CDC Activities and Initiatives Supporting the COVID-19 Response and the President\'s Plan for Opening America Up Again, and “Considerations for Schools” released May 19, 2020. These guidance documents recommend avoiding mixing students in common areas and include the example of having students eat breakfast and lunch in their classrooms. As the CDC’s guidance documents may affect the way students are exposed to allergens at school, AASA’s members should be aware of the potential issues these guidance documents may cause in order to effectively ensuring students are able to return to school safely when schools reopen.
FOOD ALLERGIES AS A DISABILITY
The U.S. Department of Education, Office for Civil Rights, and the U.S. Department of Justice have determined that food allergies may be deemed a disability that requires accommodations under federal disability laws and regulations such as Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act, and the Americans with Disabilities Act, and the ADA Amendments Act of 2008. Students with food allergies, a protected disability that affects one or more major life activity including, but not limited to, eating, breathing and the major bodily functions of the immune, digestive, respiratory, and circulatory systems, are at a great risk of an allergic reaction when their allergens are present in the classroom. The CDC’s own “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Educational Programs” (on which Eleanor Garrow-Holding, FAACT’s President and CEO, served as an expert panelist for the development of) recognizes that the implementation of said guidelines “must be implemented consistent with applicable federal and state laws and policies.” Additionally, on April 27, 2020 the U.S. Secretary of Education, Betsy DeVos, announced that she would not seek any waivers under the CARES Act of students’ rights afforded under Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act. Instead Secretary DeVos held that schools must continue to accommodate students with disabilities, including providing a free and appropriate public education (“FAPE”) in the least restrictive environment.
CDC GUIDANCE
In March of this year, the Center for Disease Control and Prevention (“CDC”) released a early version of a school guidance document titled “Interim Guidance for Administrators of U.S. K-12 Schools and Child Care Programs to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19)”. On page 9 of this guidance document, it is recommended “[w]hen there is minimal to moderate community transmission” schools “[a]void mixing students in common areas. For example, allow students to eat lunch and breakfast in their classrooms rather than mixing in the cafeteria.” The guidance document goes on to set out recommendations on how to limit mingling of students if it is not possible to suspend the use of common areas. Understandably so, the food allergy community is greatly concerned about the consumptions of meals in the classroom. It has been the position of FAACT since its inception that food-free classrooms are ideal and that prohibiting the allergens of a food-allergic student from their classroom is an essential disability accommodation for many students with food allergies.
FAACT sent a letter to Dr. Robert Redfield, the CDC Director, on May 6, 2020 outlining our concerns about the CDC’s recommendation to consume meals in classrooms. The letter outlined the different Federal disability laws that could possibly be violated by restricting the consumption of meals to classrooms. The letter went on to outline the potential issues consuming meals in classrooms could pose for students with food allergies, specifically (1) an increased risk of allergen exposure and reactions, (2) increased risk of anxiety in a student with food allergies, and (3) the risk of students with food allergies fixation on the allergens in the classroom instead of being able to pay attention to the educational instruction taking place in the classroom. All of these scenarios can lead to the denial of a “Free and Appropriate Public Education” (FAPE). FAACT requested that the CDC revise the “Interim Guidance” document to address the concerns and safety of students with food allergies in light of the recommendation to consume meals in the classroom. One specific request was that the CDC include a provision specifically recognizing that classrooms that contain a child with a known food allergy, especially those receiving accommodations through a 504 plan, IEP, or other accommodation plan, be specifically listed as a specific incidence where it is “not possible to suspend use of common areas”, at least for certain portions of the school’s population (i.e. certain classroom bodies of students).
On May 19, 2020, the CDC updated its COVID guidance to schools and addressed the concerns FAACT expressed in our May 6, 2020 letter to CDC Director, Dr. Robert Redfield. The CDC’s new “Considerations for Schools” and the May 2020 CDC Activities and Initiatives Supporting the COVID-19 Response and the President\'s Plan for Opening America Up Again include instructions on how to safely use communal areas such as cafeterias, specifically the guidance to “stagger use and clean and disinfect between use”, and the guidance to “ensure the safety of children with food allergies” with a hyperlink to the CDC’s “Voluntary Guidelines for Managing Food Allergies in Schools and Early Care and Education Programs.” The inclusion of this new attention to students with food allergies addresses the concerns FAACT raised in our May 6, 2020 letter to the CDC, specifically the risk of schools denying students the right to accommodations prohibiting the consumption of allergens in the classroom or requiring the consumption of food items outside of the classroom (accommodations encouraged in the CDC’s Food Allergy Voluntary Guidelines), it does not do so in plain and concise language.
FAACT is concerned that the CDC does not specifically and concisely set out the manner in which schools should “ensure the safety” of students with food allergies and instead only includes a link to a 103-page document. Being mindful of the unprecedented burden on school officials and to address the overwhelming concerns of the food allergy community, FAACT sent a follow-up letter to Director Redfield on May 20, 2020 requesting that, in addition to the inclusion of the hyperlink to the CDC’s Voluntary Food Allergy Guidelines, specific language be used in the CDC’s guidance to specifically address students with food allergies in a manner equivalent to students with other disabilities such as asthma.
ACTIONS SCHOOLS CAN TAKE TO ENSURE THE SAFETY OF STUDENTS WITH FOOD ALLERGIES
In an effort to ease the unprecedented burden on school officials, school nurses, teachers, and other school staff, FAACT requested that the CDC revise their school guidance documents to specifically address and state the relevant language included in the CDC’s food allergy guidelines. FAACT values the time of school administrators, nurses, teachers, and other staff and in an effort to ease your burden would call your attention to the following language contained in the CDC’s food allergy guidelines. On page 37 of these food allergy guidelines, the CDC instructs schools to “create an environment that is as safe as possible from exposure to food allergens.” The CDC states that some schools elect to ban specific foods across the entire school. The guidelines additionally state that schools “may choose other alternatives to banning allergens including the designation of allergen-safe zones, such as an individual classroom or eating area in the cafeteria, or designation of food-free zones, such as a library, classroom, or buses.” Further on page 41, schools are instructed to “[a]void the use of identified allergens in class projects, parties, holidays and celebrations, arts, crafts, science experiments, cooking, snacks, or rewards. Modify class materials as needed.”
ACCOMMODATION PLANS
Schools should be actively identifying the students that may need accommodations upon returning to school and working with the parents or caregivers of these students to ensure that proper accommodation plans are in place prior to the start of the school year. Disability laws focus on the rights of the individual. It is important for schools and parents or caregivers of students with food allergies to focus on the individual needs of the student. Is the student a high schooler who has shown a level of maturity and an ability to safely manage their allergies in environments where his or her allergens are present? Is the student’s only food allergen shellfish? If so, there may not be an urgent need for the student’s class to avoid eating in the classroom (unless shellfish is a common lunch item in your school). This does not mean that these students will not need a 504 Plan or other accommodation plan. The student may have asthma that can be triggered by certain cleaning products, by wearing a mask, or by having the classroom window open. This student might need accommodations addressing his or her classroom cleaning, allowing him or her to wear a face shield instead of a mask or to forgo a face covering all together, or prohibiting the classroom windows from being opened for ventilation. The student may have anxiety issues that make it too stressful for the student to learn in the in-person setting or may be at high risk for complications from COVID and needs the ability to elect to continue distance learning.
Areas to consider for COVID-related accommodations:
- Meal consumption/allergens in the classroom and alternate locations.
- While prohibiting the consumption of allergens in the classroom would seem like an easy mitigation of this risk, this approach has not been a universally accepted approach. Since FAACT’s launch in January 2014, FAACT’s Civil Rights Advocacy Division has assisted over 4,000 families, many of whose main concern was a school’s refusal to prohibit a student’s allergens from being consumed in the student’s classroom. Through FAACT’s advocacy and assistance, many of these families who were facing the challenge of schools declining to exclude their student’s allergens from the classroom were able to receive accommodations requiring food items to be consumed outside of the classroom, in areas such as the cafeteria, hallway, or outdoors.
- If food is going to be consumed in the classroom, is enhanced cleaning, a larger room where students are going to be spaced further apart, or enhanced prohibition of food sharing needed.
- Enhanced handwashing.
- Face coverings for students with asthma.
- Cleaning protocols and cleaning products for students with asthma and/or allergies to cleaning products.
- Option to elect to utilize distance learning even when other students are participating in in-person education.
In addition to the COVID-related area of concerns above, a list of sample accommodations for students with food allergies can be found in FAACT’s Civil Rights Advocacy Resource Center.
FAACT understands the uniqueness of the current COVID-19 pandemic. We appreciate that this is an unprecedented public health crisis, and we understand that the AASA and school administrators across the county are making extraordinary efforts to ensure that students return to school safely. Should you have any questions or concerns regarding FAACT’s position and recommendation or should you wish to collaborate, please contact FAACT’s Vice President of Civil Rights Advocacy, Amelia G. Smith, J.D., at Amelia.Smith@FoodAllergyAwareness.org or at (662) 322-7434.
FAACT appreciates your prompt attention to this crucial issue affecting the near 6 million American children with food allergies.