Can a daycare facility refuse entry to kids with potentially fatal food allergies?

[astro]

Per this thread Iwas wondering if it is legal for a private (or public) daycare to refuse entry to a child who requires a (pick food they are deathly allergic to) free environment and the daycare simply deems it to be too much of a hassle to deal with? Do they have the right to refuse service?

[Broomstick]

I would think Public daycare would run into trouble with laws regarding reasonable accommodation if they did that, so no. Not so sure about private.

[Phlosphr]

No, they don’t. Same reason they can’t not let a Jehovah Witness kid into the daycare. It’s not like all the other kids are going to simply stop having birthdays or celebrating any festivities. I’m pretty sure both public and private daycares abide by the non-discrimination laws. I’ve been picking a newphew up at daycare as of late and it’s a private large NAEYC certified pre-school and there are two children there with severe peanut allergies - there are signs up all over the school and notes sent home to parents - NO PEANUT FOODS OR DERIVATIVES.

[Fear_Itself]

FAQ regarding daycare centers and the Americans with Disabilities Act:

2. Q: Which child care centers are covered by title III?
   A: 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.

…

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:[ul]
[li]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. [/li]
[li]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. [/li]
[li]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. [/li]
[li]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.[/li][/ul]

So it would seem they cannot, though there is room for argument under the fundamental alteration exception.

[NinjaChick]

Are allergies considered disabilities?

[Fear_Itself]

@NinjaChick

Are allergies considered disabilities?

from my cite:

19. Q: What about children who have severe, sometimes life-threatening allergies to bee stings or certain foods? Do we have to take them?

A: 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 (see question 26).

…

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.

[Gorgonzola]

In terms of a daycare finding a food allergy “too much hassle to deal with,” the likelihood of a food allergy being potentially fatal by any other action than the person in question ingesting the food is highly overestimated in the current public mindset: cite

“With extremely rare exceptions, you have to eat the food in order to trigger a life-threatening reaction,” says Dr. Carr, who is also the vice-president of the Canadian Society of Allergy and Clinical Immunology."

Avoidance of the allergy trigger is easy for even very young children to learn and is not much more complex than teaching them not to go off with strangers. Parents who insist that little Johnny wear an Epipen tucked up in a fanny pack next to his gonads, and that every area he encounter be scoured of the foul allergenic substance are usually hysterical and/or grossly misinformed, and setting their kids up to feel unnecessarily out-of-control.

[Markxxx]

The answer is probably not, but it depends on the judge. I’ve dealt with the ADA a lot and you can find EXACT copies of situations where one was ruled fine and the other was ruled “not fine.”

You could claim you’re not set up to deal with life threatening emergencies and that may work. But if someone sues you, you’re screwed as even if you win it cost you more than your worth.

The ADA would also require the person suing you to show he tried to find other arrangements as well.

The biggest myth about the ADA is that it forces everyone to comply. Not so, just as businesses are supposed to make reasonable accommodation so is the person.

If business “A” says they cannot accomodate me and gives a reason and business “B” says they WILL accommodate me, you wouldn’t win as long as the services are equal.

For instance if I founded the “Peanut Butter Day Care Center” where all kids learn about the joy of peanuts in history, the ADA is NOT going to require me to take in a child that is allergic and change my whole mode of business. That is not reasonable to do so.

But it gets complex so the best way to handle it is to require all applicants to fill out an application and insist on a medical history for each child. Then simply decline the child without a reason or a make it a flimsy reason.

Anyone suing you would have to PROVE that you have a pattern of excluding people, so you simply vary your pattern.

Winning an ADA suit is hard. The thing is almost all ADA suits are settled out of court by insurance etc, so it looks like the people that sue win, but when you look at cases that go to trial, the ADA rarely wins those, because you have to prove the buiness was UNreasonable and the handicapped person had NO other options as well. This is hard to prove.