It is no surprise that restaurants and food service employers, like most other employers, must comply with the Americans with Disabilities Act (ADA), the federal law that protects disabled individuals from discrimination in employment. However, unlike other employers, employers in the food service industry share unique issues arising from their obligations under state and local public health laws based on guidance from the U.S. Food and Drug Administration (FDA) to protect the public from food poisoning and transmission of disease through contact with food. In an attempt to address these issues, on October 28, 2004, the Equal Employment Opportunity Commission (EEOC) issued new guidance to assure food service employers that they can follow rules based on the FDA’s Food Code and also comply with ADA requirements.
The most helpful aspect of the EEOC’s new guidance is that it provides examples relating to the interaction between the Food Code and the ADA. The FDA’s Food Code is a model code which may be adopted by local, state, and federal governments for administration by the various departments, agencies, and other units that have been delegated compliance responsibilities for food service, retail food stores, or food vending operations. Once adopted, the Food Code provisions become the regulatory requirements for that jurisdiction. The EEOC presumes that the Food Code has been adopted and discusses the interaction between the ADA and the Food Code based upon that presumption.
The Food Code is intended to protect the public from diseases transmissible through food, particularly the "Big Four" pathogens: Salmonella Typhi, Shigella spp., Shiga toxin-producing Escherichia coli, and Hepatitis A virus. Under the Food Code, employees diagnosed with a disease due to one of these pathogens should be excluded from the food establishment. In addition, employees with certain symptoms, such as diarrhea, fever, and vomiting, should be restricted from food handling and other certain duties.
According to the EEOC, if a person is disabled by a disease caused by a Big Four pathogen, the employer must consider the ADA’s requirements before excluding the employee from the establishment. Consistent with the ADA, the employer may refuse to assign the employee to a food handling position if the risk of transmitting the disease cannot be eliminated by a reasonable accommodation. The employee also may be excluded from the food establishment if there is no vacant position not involving food handling to which the employee can be reassigned, and other accommodations are too difficult or expensive. Courts require employers to show more than mere inconveniences and costs as part of providing reasonable accommodations. To show that accommodations would be too difficult or expensive, the employer would have to show "undue hardship," or that the requested accommodation involves a significant difficulty that disrupts the business, involves significant expense, or requires the employer to change the basic nature of the business.
The EEOC also addresses particular issues related to hiring, such as whether a food service employer may legally ask an applicant during a job interview about her health and about diseases transmissible through food. The EEOC’s position is that the ADA prohibits these questions before a conditional offer of employment has been made. After a conditional offer is made, however, it is permissible to ask about diseases transmissible through food, provided that all applicants in the same job category are treated the same. The EEOC also agrees that an employer may ask an applicant, at an initial interview, if he currently uses drugs illegally or drinks alcohol, which are not protected under the ADA.
The EEOC also acknowledges that food service employers who follow the FDA Food Code reporting requirements do not violate the ADA. These requirements require a current employee to report (1) whether he has been diagnosed with an illness due to a Big Four pathogen, (2) whether he has any symptoms relating to intestinal illness, boils, or infected wounds, (3) whether he has had a past illness due to one of the listed pathogens, and (4) whether he meets one of the specific high-risk conditions for becoming ill due to one of the Big Four pathogens. A food service employer may also ask medical questions of a particular employee who handles food if there is an objective factual basis for believing that the employee may pose a safety risk because of symptoms that the FDA has determined are likely to transmit a food borne illness. For example, a supervisor’s observations of a food service employee vomiting provides an objective basis that justifies posing medical questions.
The EEOC’s new guidance does not have the authoritative force of statutory law or official regulations, but it nonetheless is a must read for food service and restaurant employers. In a question and answer format, it also addresses issues such as reasonable accommodations, responding to complaints and charges of discrimination filed against the employer, and federal tax incentives available to encourage employment of disabled individuals and to promote the accessibility of public accommodations.
To obtain more information, the complete guide is available at http://www.eeoc.gov/facts/restaurant_guide.html
You may also contact a Foley & Lardner LLP attorney if you have particular questions about this guidance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
