The EEOC recently joined forces with the FDA in an attempt to reconcile a food service employer's duties under the ADA to accommodate employees that may be disabled by food pathogens, with the employer's duty under the FDA's Food Code, to prevent employees with certain illnesses from performing certain work in food service establishments. The Guidance is in "question and answer" format and does not cover every possible circumstance. Moreover, large portions are repetitive of previous guidance offered by the EEOC. But some sections are new and may prove helpful to the Hospitality and Food Service Industry.
It comes as no surprise that the EEOC asserts that a Food Service employer must comply with both the Food Code and the ADA. But there are some wrinkles. First, the Guidance points out that the employee must be truly disabled – not merely sick – by a pathogen on the Food Guide to be covered under the ADA. The EEOC indicates that this is not typical or necessarily frequent because the substantial limitation on the employee must be permanent or cause serious, long-term effects. These are not a "given" with illnesses caused by food borne pathogens, so the Guidance states, "Most people who have a disease due to one of the [pathogens covered in the Food Code] are not disabled by that disease. But, if a person is disabled [by one of the Food Code pathogens], the employer must consider the ADA in addition to the provisions of the Food Code."
The Guidance does not say what sort of accommodation will pass muster in every circumstance, but offers some helpful guidance. For example: "The ADA says that an employer may refuse to assign or continue to assign an employee to a food handling position if the employee is disabled by one of the diseases [transmitted by food] on the [Food Code] list and the risk of transmitting the disease cannot be eliminated by a reasonable accommodation." Thus, as with any other employment arrangement governed by the ADA, the first inquiry is whether the employee is disabled, and the second is whether there is an accommodation that will allow the qualified employee with a disability to continue to do the job. It is hard to imagine an accommodation in which an employee disabled with a food borne disease should be permitted or required to continue food handling, but it must be considered as part of the interactive process. If no accommodation can be found to allow continued food handling, the Guidance make it clear that the food handling duties can be removed.
As for other accommodations, the Guidance points out that if the employee is truly disabled by the diseases listed in the Food Code, the employee may be fully excluded from the establishment only if the following conditions are met: (1) there is no reasonable accommodation that would eliminate the risk of transmittal of the disease while allowing continued food handling (or all reasonable accommodations would pose an undue hardship on the business), and (2) there is no vacant position not involving food handling for which the employee is qualified and can be reassigned.
The Guidance also discuss the do's and don't of interviewing employees for food handling positions. For example, it is improper to ask an applicant about exposure to food borne pathogens. But such inquiry can be made (just like any other medical examination or inquiry) after a conditional job offer is extended so long as all applicants in the same job category are treated the same.
The ADA also acknowledges that certain federal and state laws may require health reporting for employees, including the Food Code, and that this reporting does not violate the ADA. Under FDA rules, for example, current employees are required to report any diagnosis of illness due to a Food Code pathogen, any symptoms related to intestinal illness, boils or infected wounds, or a past illness do to one of the listed pathogens. An employer may also make inquiries based on objective observations (such as vomiting). If the employee is "disabled" by the illness within the meaning of the ADA, all of the ADA requirements must be followed. If the employee does not qualify as disabled, the ADA requirements do not apply, and the employee may usually be terminated.
Finally, the Guidance address the risks inherent in what occurs after the employer learns of the food borne illness. Confidentiality is a key consideration under the ADA which must be balanced against the FDA's testing and public safety requirements. The Guidance uses the following example: "The head of the wait staff, Hasad, informs his supervisor that he has Hepatitis A. The supervisor must keep this information confidential and should not inform the staff that Hasad has Hepatitis A. The supervisor may, however, inform the staff that a case of Hepatitis A has been reported and that the employees should continue to take steps for safeguarding public health." Of course, this may include testing of some employees. And certainly, just like any other ADA protected information, this information should never be maintained in a personnel file.
Because it comes up with increasing frequency, it is worth noting that the EEOC has reiterated its position, even with respect to Food Service employees, that a conditional job offer may not be withdrawn on the grounds that the employee or applicant is HIV positive. HIV is not one of the pathogens listed on the Food List.
The complete 17 page Guidance can be viewed at the EEOC web-site: http://eeoc.gov/facts/restaurant_guide.html.
For further assistance with Hospitality or Food Service Industry questions, please contact Robert K. Jones at 602.229.5496 or your Quarles & Brady LLP attorney.