Southwest Airlines will once again allow travelers with peanut and nut allergies to pre-board to wipe seating areas for allergens. The airline announced the policy reversal in its response to a disability complaint launched by four allergy nonprofit organizations to the Department of Transportation (DOT).
As it is taking remedial action, effective December 15, the airline calls on DOT to dismiss the advocacy groups’ complaint.
However, the groups say: not so fast. Mary Vargas, an attorney representing the nonprofits, says the complaint must move forward as it seeks accommodations on behalf of passengers with all food allergies, not just nut allergies.
“I am encouraged that Southwest will permit pre-boarding as required by law,” says Vargas, a disability rights attorney with the firm Stein & Vargas. However, “the law requires Southwest to accommodate people with all disabilities – not only peanut allergies, not only certain kinds of disabilities – all disabilities,” she says.
The groups’ November 16 complaint alleged that the airline’s September 2022 policy change to deny pre-boarding to passengers with food allergies violated the Air Carrier Access Act (ACAA) and the Airline Passengers with Disabilities Bill of Rights. Instead, the airline offered an “extra-time” boarding option to those with nut allergies – after the first boarding group. However, the change upset many food allergy passengers, who spoke out about difficult experiences.
In its December 1 response to the complaint, Southwest writes that it informed DOT on November 4, 2022 that it would revert to its previous policy. This will once again allow passengers with peanut and nut allergies to pre-board. Southwest contends that because it had already begun working toward this policy reversal, the complaint filed several days later “is effectively moot.”
Complaint Relates to All Food Allergies
The nonprofit organizations behind the DOT complaint are: Allergy and Asthma Network (AAN); Asthma and Allergy Foundation of America (AAFA); Food Allergy & Anaphylaxis Connection Team (FAACT); and No Nut Traveler. Their complaint seeks a cease-and-desist order against Southwest, civil penalties, and mandated crew training on food allergies as a disability.
Food allergy and airlines advocate Lianne Mandelbaum says she is heartened that Southwest will again allow passengers with peanut and nut allergies to pre-board. But the policy reversal does not answer the complaint, says Mandelbaum, founder of No Nut Traveler.
“The complaint was filed on behalf of all those who live with life-threatening food allergies. It is not only peanuts and tree nuts that can cause fatal anaphylaxis. Any person with a food allergy should have the right to pre-board and clean their area,” Mandelbaum says.
Vargas says: “Southwest completely disregards that the complaint is filed on behalf of passengers with all food allergies.”
Food allergy passengers often ask to pre-board to wipe their seating area to reduce the risk of allergen exposures and an in-flight reaction. When Southwest removed the pre-boarding option for nut allergies in September, allergic travelers began sharing experiences with Allergic Living and allergy advocacy groups. Some told of finding food debris from allergens or having to scramble to clean a seating area while other passengers were boarding.
“Individuals with a severe allergy to any food, not just peanut, need to wipe down their seats and surrounding areas and have a need and a right to pre-board,” says Eleanor Garrow-Holding, FAACT’s president and CEO. She agrees that reinstating pre-boarding only for travelers with peanut and nut allergies is not enough.
Southwest Cites ‘Miscommunication’
In its response, Southwest attributes the September policy change to “miscommunication” within the company. When Allergic Living asked further about this, Southwest sent a statement. It reads in part:
“Due to an unintentional internal miscommunication, Southwest temporarily asked customers with severe peanut allergies to board after the A group (instead of before the A group). Boarding after the A group was still in the extra-time boarding group and a form of priority boarding.”
The groups’ complaint says that, under the ACAA, airlines must “offer pre-boarding to passengers who self-identify at the gate as needing additional time or assistance to board.” It notes that in a previous complaint, DOT found American Airlines had violated the ACAA by denying pre-boarding to the family of a child with food allergies.
By the time of that important May 2019 DOT finding, American had changed its policy to allow such pre-boarding. But the regulator still warned the airline.
In its December 2022 response to the groups’ complaint, Southwest mentions the finding against American concerning pre-boarding for food allergies. It references DOT’s statement that a passenger with an allergy is asking for pre-boarding so there is additional time “‘to be seated’ because from the passenger’s perspective, the seating area cannot be safely accessed until it is wiped down.”
The airline writes that it had believed this applied to carriers that offer assigned seats, whereas Southwest passengers select their seat upon boarding.
Southwest refers to a November 2019 letter from DOT regarding the renewal of its Equivalent Alternative Determination (EAD) concerning the ACAA pre-boarding requirements. The EAD allows Southwest to use “extra boarding time” instead of pre-boarding for passengers who need extra time to be seated.
DOT on Pre-boarding Rights
Southwest includes the DOT letter in its response. In it, DOT stresses its finding in two previous food allergy complaints with American Airlines, and explains why passengers with severe food allergies are still entitled to pre-boarding. A footnote in the letter indicates Southwest has told DOT it will continue to offer pre-boarding to passengers who wish to “wipe down tray tables and other surfaces in order to reduce exposure to allergens.”
Vargas says the DOT 2019 letter cautions Southwest about the finding on the previous pre-boarding complaint. Yet, she says, “Southwest to date refuses to comply with the law as those determinations held.”
“We now know that Southwest acted with knowledge to deny federally protected rights to passengers with food allergies and continues to do so against passengers with food allergies other than peanut allergies,” she says. Vargas is jointly representing the organizations with Laurel Francoeur of the Francoeur Law Office near Boston.
Kenneth Mendez, AAFA’s president and CEO, says that instead of singling out nut allergies, Southwest should recognize people with food allergies “in the same way as other disability groups with respect to airline and Southwest’s policies.”
“I’m cautiously optimistic that Southwest ‘owned’ their error and plans to reverse their policy. But based on the language in the document, they clearly don’t seem to understand that food allergies qualify as a disability,” he says.
What’s Next for Southwest Passengers
Mandelbaum says that crew training about food allergies is another key aspect of the complaint.
“The complaint needs to go forward so that mandated training ensures Southwest Airlines adopts a uniform approach to prevent its employees from continuing to apply discriminatory policies against those with varying food allergies,” she says.
Southwest and the allergy groups now await the DOT’s decision on the complaint.
As of December 15, customers flying on Southwest with a nut or peanut allergy can request pre-boarding with the Southwest customer service agent at the departure gate. The agent will reprint the boarding pass, which should include the special service request code for pre-boarding, according to a Southwest spokesperson.
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