by Elizabeth A. Olivier, Esq.

The Equal Employment Opportunity Commission (“EEOC”) has recently issued an ADA guidance document entitled “How to Comply with the Americans with Disabilities Act:  A Guide for Restaurants and other Food Service Employers.”   This is a resource for all food service employers, designed to help them better understand and abide by the somewhat complex Food & Drug Administration (“FDA”) Model Food Code rules, while maintaining compliance with the ADA.               

The Food Code is a model code developed by the FDA that provides guidance on health issues for the food service industry.  The FDA strongly encourages its adoption by local, state and federal governmental jurisdictions.  The Code has been adopted in Maine and New Hampshire.  In furtherance of its objective to protect the public from diseases transmissible through food, the Food Code identifies four pathogens, known as the “Big 4,” that are easily transmissible through food, and states that employees diagnosed with a disease due to one of the “Big 4” pathogens should be excluded from the food establishment.  The Code also requires that employees with certain symptoms, such as diarrhea, fever, vomiting, jaundice, or sore throat with fever, be restricted from certain duties, so that there is no risk of transmitting a disease that is transmissible through food.  Many food service employers have been concerned about whether and how they can enforce these rules without violating the ADA. 

The Guidance points out that many people who have a disease due to one of the “Big 4” pathogens are not disabled by that disease, as these diseases are usually short-term and/or minor.  The Guidance further notes that it is even less likely that people who experience one or more of the symptoms described above, but who have not been diagnosed with a disease, will have an ADA disability based on that symptom alone.  Absent a disability, the food service employer can implement the restrictions and exclusion mandated by the Food Code without considering the ADA.

However, if the individual is disabled by one of the diseases listed in the Food Code, the employer must consider its obligations under the ADA as well as the provisions of the Food Code.  This means that the employer is required to consider whether the risk of transmitting a disease can be eliminated by a reasonable accommodation.  The Guidance instructs food service employers dealing with employees disabled by a disease listed in the Food Code to determine:  1) whether there is a reasonable accommodation that would eliminate the risk of transmitting the disease while allowing the employee to work in his/her food handling position; 2) whether any reasonable accommodation would pose an undue hardship on the business; and 3) whether there is a vacant position not involving food handling for which the employee is qualified and to which he/she can be assigned.

The Guidance also addresses the ADA rules about when employers can ask applicants and employees questions about their health, including questions about diseases transmissible through food.  Among other things, it states:

• Job applicants cannot be asked questions about their health and diseases transmissible through food, including those listed in the FDA Food Code;
  
• After a conditional job offer is made, an employer may ask about diseases transmissible through food and require a medical exam, so long as all applicants in the same job category are treated the same;
  
• If an applicant with a conditional job offer is diagnosed with an illness due to one of the diseases listed in the Food Code, and is disabled by that illness, the employer can cancel the job offer only if it is for a food handling job, and there is no reasonable accommodation that would eliminate the risk of transmitting the disease through food without causing an undue hardship to the business;
  
• Employers may require current employees to report whether they have and/or are diagnosed with diseases listed in the FDA Food Code; and  
  
• Employees with disabilities who use service animals may handle their service animals as long as they follow hand washing instructions after doing so.  However, service animals are not permitted in areas used for food preparation.

The complete Guide is available online at www.eeoc.gov/facts/restaurant_guide.html.  It is a “must read” for all food service employers.