• The EEOC and FDA Issue Joint Guidance for Restaurateurs and Food Service Providers
  • November 16, 2004 | Author: Stanley E. Graham
  • Law Firm: Waller Lansden Dortch & Davis, LLP - Nashville Office
  • With over fourteen million employees in the restaurant and lodging industries, hospitality employers are a frequent target of employment discrimination claims. The latest statistics reveal that, despite recent Supreme Court decisions limiting the universe of those considered disabled, nearly one in five discrimination charges alleges a violation of the Americans With Disabilities Act (ADA).

    Faced with the ever-increasing prospect of ADA litigation, hospitality employers are wise to consider guidance recently issued by the Equal Employment Opportunity Commission (EEOC) and Food and Drug Administration (FDA) concerning the ADA obligations of restaurateurs and other food service providers. Using employment scenarios specific to the hospitality industry, a technique this firm has long found effective in human resources training, the guide explains how the ADA applies to food service providers. It also addresses the often overlapping obligations imposed by the ADA -- which is applicable to employers with 15 or more employees -- and the FDA Food Code -- which applies to food service employers regardless of size in 43 states, including Tennessee.

    The following issues are among those addressed by the new guidance:

    When job applicants may be asked about their health and diseases transmittable through food

    The Food Code requires food employee applicants to report information about their health and activities as they relate to diseases that are transmissible through food. Of particular concern to the FDA are the "Big 4:" Salmonella Typhi, Shigelli spp., Shiga toxin-producing E. Coli, and Hepatitis A virus. The guidance acknowledges the Food Code's reporting requirements, but confirms the ADA's prohibition on inquiring into an applicant's health prior to making a conditional offer of employment. Prior to the conditional offer, the employer should decide only if an applicant is qualified for the job. After an offer is made, the employer can ask about an applicant's health and require a medical exam as long as all applicants in the same job category are treated the same.

    Whether current employees may be required to report a disease transmittable through food

    The guidance confirms that the ADA permits employers to follow the Food Code's disease reporting requirements, including requiring a current employee to report whether he has been diagnosed with an illness caused by one of the Big 4 pathogens; whether he has symptoms related to intestinal illness, boils, or infected wounds; and whether he has had a past illness due to one of the Big 4 pathogens. One option employers may consider is having food-handling employees certify in writing on a periodic basis that they have not been diagnosed with one of the Big 4. Employers may also ask medical questions of a food-handling employee if there are concrete reasons for linking the employee's condition to safety or job performance. Note that HIV/AIDS is not on the Food Code list of diseases transmittable through the food supply. If an employer learns or suspects that an employee or job applicant has HIV/AIDS, the ADA generally prohibits taking an adverse job action against the person because of the medical condition.

    Reconciling the exclusion requirements of the Food Code with the ADA's duty to provide reasonable accommodation

    The Food Code requires that employees with symptoms of gastrointestinal illness -- e.g. diarrhea, fever, vomiting, jaundice, or sore throat with fever -- be restricted from performing certain duties, including food-handling. An employee diagnosed with an illness caused by one of the Big 4 pathogens must be removed from the food establishment altogether. The guidance notes that most people with a Big 4 disease are not disabled within the meaning of the ADA because the illness is short-term and/or minor. In those cases, an employee with a Big 4 disease may be terminated without consideration of the ADA. If an employee has a sufficiently long-term and serious illness, however, he may be disabled under the ADA . If he requests a reasonable accommodation to perform his job, then the employer must engage in the interactive process to determine whether an accommodation is available.

    Disclosing the identity of infected employees

    The guidance reiterates the ADA's prohibition on the dissemination of an employee's medical information and concludes that the ADA prohibits an employer from disclosing to co-workers the identity of an employee diagnosed with a contagious disease. The employer is permitted to notify employees that they may have been exposed to a disease and may need to be tested. The notice can be verbal or in writing but should be calculated to reach all employees potentially exposed.

    ADA fundamentals

    The guidance also covers such issues as when an employee is disabled within the meaning of the ADA; when and how to engage in the reasonable accommodation process; and when employers may inquire about an employee's medical condition. Also described are the various federal tax credits directed at making the workplace more accessible to the disabled.