Questions about Food Allergies as a Disability
Taken from “Commonly Asked Questions About Child Care Centers and the Americans with Disabilities Act”, U.S. Department of Justice, Civil Rights Division, Disability Rights Section.
Does the Americans with Disabilities Act — or “ADA” — apply to child care centers?
Yes. Privately-run child care centers — like other public accommodations such as private schools, recreation centers, restaurants, hotels, movie theaters, and banks — must comply with title III of the ADA. Child care services provided by government agencies, such as Head Start, summer programs, and extended school day programs, must comply with title II of the ADA. Both titles apply to a child care center’s interactions with the children, parents, guardians, and potential customers that it serves.
Which child care centers are covered by title III?
Almost all child care providers, regardless of size or number of employees, must comply with title III of the ADA. Even small, home-based centers that may not have to follow some State laws are covered by title III.
The exception is child care centers that are actually run by religious entities such as churches, mosques, or synagogues. Activities controlled by religious organizations are not covered by title III.
Private child care centers that are operating on the premises of a religious organization, however, are generally not exempt from title III. Where such areas are leased by a child care program not controlled or operated by the religious organization, title III applies to the child care program but not the religious organization. For example, if a private child care program is operated out of a church, pays rent to the church, and has no other connection to the church, the program has to comply with title III but the church does not.
What are the basic requirements of title III?
The ADA requires that child care providers not discriminate against persons with disabilities on the basis of disability, that is, that they provide children and parents with disabilities with an equal opportunity to participate in the child care center’s programs and services. Specifically:
- Centers cannot exclude children with disabilities from their programs unless their presence would pose a direct threat to the health or safety of others or require a fundamental alteration of the program.
- Centers have to make reasonable modifications to their policies and practices to integrate children, parents, and guardians with disabilities into their programs unless doing so would constitute a fundamental alteration.
- Centers must provide appropriate auxiliary aids and services needed for effective communication with children or adults with disabilities, when doing so would not constitute an undue burden.
- Centers must generally make their facilities accessible to persons with disabilities. Existing facilities are subject to the readily achievable standard for barrier removal, while newly constructed facilities and any altered portions of existing facilities must be fully accessible.
How do I decide whether a child with a disability belongs in my program?
Child care centers cannot just assume that a child’s disabilities are too severe for the child to be integrated successfully into the center’s child care program. The center must make an individualized assessment about whether it can meet the particular needs of the child without fundamentally altering its program. In making this assessment, the caregiver must not react to unfounded preconceptions or stereotypes about what children with disabilities can or cannot do, or how much assistance they may require. Instead, the caregiver should talk to the parents or guardians and any other professionals (such as educators or health care professionals) who work with the child in other contexts. Providers are often surprised at how simple it is to include children with disabilities in their mainstream programs.
Our center has a policy that we will not give medication to any child. Can I refuse to give medication to a child with a disability?
No. In some circumstances, it may be necessary to give medication to a child with a disability in order to make a program accessible to that child. While some state laws may differ, generally speaking, as long as reasonable care is used in following the doctors’ and parents’ or guardians written instructions about administering medication, centers should not be held liable for any resulting problems. Providers, parents, and guardians are urged to consult professionals in their state whenever liability questions arise.
What about children who have severe, sometimes life-threatening allergies to bee stings or certain foods? Do we have to take them?
Generally, yes. Children cannot be excluded on the sole basis that they have been identified as having severe allergies to bee stings or certain foods. A center needs to be prepared to take appropriate steps in the event of an allergic reaction, such as administering a medicine called “epinephrine” that will be provided in advance by the child’s parents or guardians.
- The Department of Justice’s settlement agreement with La Petite Academy addresses this issue and others: In its 1997 settlement agreement with the Department of Justice, La Petite Academy also agreed to keep epinephrine on hand to administer to children who have severe and possibly life-threatening allergy attacks due to exposure to certain foods or bee stings and to make changes to some of its programs so that children with cerebral palsy can participate. https://www.ada.gov/lapetite.htm
How do I make my child care center’s building, playground, and parking lot accessible to people with disabilities?
Even if you do not have any disabled people in your program now, you have an ongoing obligation to remove barriers to access for people with disabilities. Existing privately-run child care centers must remove those architectural barriers that limit the participation of children with disabilities (or parents, guardians, or prospective customers with disabilities) if removing the barriers is readily achievable, that is, if the barrier removal can be easily accomplished and can be carried out without much difficulty or expense.