The ADA and the Food Code: collision?
--Hubert H. Humphrey
Protection and accommodation of handicapped individuals is a noble governmental goal. Promotion and safeguarding of public health is a historical, core function of government. (1) Although a conflict between the two is not obvious, simultaneously trying to achieve them in certain situations can be, at the least, a complex and challenging task, and, at most, perhaps a snare.
Recently a case was decided over the denial of employment to an individual with possible liver damage for a job in which he might be exposed to hepatotoxin: Echazabal v. Chevron USA, Inc., 336 F.3d 1023 (9th Cir. 2003). The applicant was found to be disabled and qualified for protection under the Americans with Disabilities Act (ADA). Although the company was well meaning in its denial of employment based upon the recommendations of two company physicians, nonetheless, the court held that the refusal of employment violated the ADA. The court also confirmed that the U.S. Equal Employment Opportunity Commission (EEOC) regulations interpreting and applying the ADA were valid. That case is surely one that anyone involved with occupational health should read and become very familiar with.
The Echazabal case raises the issue of overlap with the ADA in other environmental health activities. Many environmental health professionals work in food safety and have received little or no information about the ADA. (2) This month's column will discuss a potential conflict between the Food Code (3) and the ADA. (4)
In 1990, Congress passed the ADA to protect disabled individuals. (5) The federal statute provides:
(a) General rule--No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
(b) Construction--As used in subsection (a) of this section, the term "discriminate" includes
(1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee; ...
(5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity....
Any disease could be a disability protected under ADA if it substantially limits one or more major life activities, which are activities that an average person can perform with little or no difficulty, such as walking, seeing, hearing, speaking, breathing, learning, performing manual tasks, caring for oneself, working, sitting, standing, lifting, or reading. (6) AIDS and hepatitis are such diseases. (7) Influenza or other diseases causing "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." (8)
The food service industry is labor intensive and has over eight million employees. (9) Moreover, food handlers are a known source of food contamination and of numerous foodborne-disease outbreaks. (10) In recognition of this risk and the need to eliminate unreasonable discrimination against AIDS patients who may work in food service, Congress made specific provisions in the ADA for food service operations:
(d) List of infectious and communicable diseases
(1) In general
The Secretary of Health and Human Services, not later than 6 months after July 26, 1990, shall--
(A) review all infectious and communicable diseases which may be transmitted through handling the food supply;
(B) publish a list of infectious and communicable diseases which are transmitted through handling the food supply;
(C) publish the methods by which such diseases are transmitted; and
(D) widely disseminate such information regarding the list of diseases and their modes of transmissability (sic) to the general public. Such list shall be updated annually.
In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the Secretary of Health and Human Services under paragraph (1), and which cannot he eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling.
Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissability (sic) published by the Secretary of Health and Human Services.
--42 U.S.C. [section] 12113(d)(2002).
Six diseases were listed by the Secretary of Health and Human Services as "often transmitted by food contaminated by infected persons who handle food." (11) Those diseases were Norwalk and Norwalk-like viruses, hepatitis A virus, Salmonella typhi, Shigella species, Staphylococcus aureus, and Streptococcus pyogenes. Another 10 diseases were listed as "occasionally" transmitted by food handlers: Campylobacter jejuni, Cryptosporidium parvum, Entamoeba histolytica, enterohemorrhagic Escherichia coli, enterotoxigenic Escherichia coli, Giardia lamblia, nontyphoidal Salmonella, Taenia solium, Vibrio cholerae O1, and Yersinia enterocolitica.
The 2001 Public Health Service Food Code categorizes sick food employees into two groups. Category 1 covers the following employees:
1. employees who have been medically diagnosed with Salmonella typhi, Shigella spp., Shiga toxin-producing Escherichia coli, or hepatitis A virus;
2. employees serving a highly susceptible population and meeting one of the following criteria:
a. experiencing a symptom of acute gastroenteritis and meeting a high-risk definition,
b. not experiencing a symptom of acute gastroenteritis but having a stool that yields a specimen culture that is positive for S. typhi, Shigella spp., or Shiga toxin--producing Escherichia coli,
c. having had an illness from S. typhi within the last three months,
d. having had an illness from Shigella spp. or Shiga toxin-producing Escherichia coli within the last month, or
e. having had an onset of jaundice more than seven calendar days before; and
3. employees who have had an onset of jaundice within the last seven calendar days. (12)
Although only hepatitis A, Salmonella typhi, and Shigella dysenteriae are considered "severe hazards," (13) an employee infected with or symptomatic of any of the listed diseases is to be excluded from the "food establishment." (14)
Category 2 covers situations in which employees, because of illness, are to be restricted at the establishment from working with exposed food; cleaning equipment, utensils, and linens; and unwrapping single-service and single-use articles. (35) The restriction is required if the employee
1. is suffering from any of the following symptoms:
* vomiting, or
* sore throat with fever;
2. is not experiencing a symptom of acute gastroenteritis but has a stool that yields a specimen culture that is positive for Salmonella typhi, Shigella spp., or Shiga toxin--producing Escherichia coli; or
3. is jaundiced, with onset occurring more than seven calendar days before and a highly susceptible population is not being served. (16)
The restriction of employees on the basis of symptoms is designed to protect against all the diseases on both lists published by the Secretary of Health and Human Services. (17)
Vibrio cholerae O1 and Taenia solium are considered severe hazards, and nontyphoid Salmonella species, enterovirulent Escherichia coli, Streptococcus pyogenes, Norwalk virus group, Entamoeba histolytica, and Cryptosporidium parvum are considered moderate hazards because of potentially extensive spread. (18) Campylobacter jejuni, Staphylococcus aureus, Yersinia enterocolitica, and Giardia lamblia are identified as moderate hazards with limited spread. (19)
The Food Code provisions are obviously well thought out and well meaning. To "exclude" or "restrict" an employee, however, may be to compel the food service manager to "discriminate against a qualified individual with a disability because of the disability of such individual." That would be a violation of the ADA.
Indeed, the Food Code provisions regarding excluding or restricting an infected employee are written in absolute, non-discretionary terms. The code apparently overlooked two important parts of the ADA. One is that the ADA would allow an exclusion or restriction of a disabled employee only if the employee posed a "direct threat to the health or safety of other individuals." (20) A "direct threat" can only be considered when it poses a significant risk (high probability of substantial harm); a speculative or remote risk is insufficient. (21) Before acting, an employer must objectively consider four factors:
1. duration of the risk,
2. nature and severity of the potential harm,
3. likelihood that the potential harm will occur, and
4. imminence of the potential harm. (22)
The determination of a "direct threat" must be an individualized assessment of an individual's present ability to safely perform the essential functions of a job, considering reasonable medical judgements relying on the most current medical knowledge, the best available objective evidence, or both. Such a determination may be beyond the skills of most food service managers and the finances of small restaurant operators, and is, likely, contrary to the Food Code. Nonetheless, it is what ADA requires. Moreover, the diseases labeled in the Food Code as "moderate hazards" may not quality as a "direct threat," and may not justify any exclusion or restriction of a disabled employee.
The second oversight in the Food Code is the ADA requirement of "reasonable accommodation" of the disabled employee without an undue hardship to the employer. (23) Even if a disabled food employee is a "direct threat" as a result of having an infectious disease, the employee cannot be automatically excluded or restricted. Reasonable accommodations include
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. (24)
For those diseases that are transmitted by a fecal-oral route, this kind of accommodation might include providing more gloves; hand soap that confirms that hands were washed after visits to the restroom; more supervision and control of cleaning and cooking temperatures that will destroy any infectious organism; and more breaks for bathroom visits. Or it might mean limiting the infected employee to nonfood areas or to performing cleaning, stocking, or general supervision. (25) For diseases that originate as skin, throat, or nasal infections of the employee, the employee may need some form of covering such as bandage, gloves, shirt, or mask, to be replaced on a frequent schedule; frequent breaks; new or more utensils; or assignment to nonfood areas or cleaning, stocking, or general supervision tasks.
Any accommodation must be reasonable and not cause an undue hardship to the business. An undue hardship is something that requires a significant expense or difficulty. The factors in determining whether an undue hardship exists are
(i) the nature and cost of the accommodation needed;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity and the geographic separateness, administrative relationship, or fiscal relationship of the facility or facilities in question to the covered entity.
This calculation appears to be a site-specific cost-versus-benefit analysis, but usually courts have not focused on detailed financial consideration and instead have looked to whether the proposed accommodation would cause a real and specific disruption of established company policy, practice, or personnel. (26) Such a disruption is generally considered an undue hardship.
A final issue is liability. Some will argue that the ADA specifically allows the strict controls of infected food employees required by the Food Code. This argument is based on 42 U.S.C. [section] 12113(d)(3)(2002), which provides:
Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissability (sic) published by the Secretary of Health and Human Services. (emphasis added).
That argument, probably, is erroneous because it ignores the language that the food employee must "pose a significant risk to the health and safety of others" and that there must be a "reasonable accommodation." Therefore, this section of the law allows state and local regulation of disabled food handlers, but the regulations must be consistent with the EEOC regulations pertaining to disabled individuals posing a "direct threat."
The ADA provides for discrimination lawsuits by an employee against the employer. (27) No case has been discovered in which a health department or food safety inspector was sued for violating the ADA by enforcing the Food Code. The ADA may, however, create a federal civil right for a disabled employee. If that interpretation is correct, then an enforcement action by a health department resulting in the exclusion or restriction of a disabled food employee may be a violation of the civil rights statute, 42 U.S.C. [section] 1983. (28) That statute applies to all individuals and entities acting under color of state law, which would include state and local food safety inspectors and local health departments who deprive an individual of a federal civil right.
This column is not intended to be all-inclusive or to provide legal authority for anyone, but is written to alert all environmental health personnel to the need to be aware of the ADA.
Editor's note: Readers who have questions about cases discussed in Legal Briefs may contact Mr. Sikora by e-mail at email@example.com.
(1) Frank P. Grad, The Public Health Law Manual, 9-10 (2nd ed., American Public Health Association, 1990).
(2) There is also little mention of the ADA in food managers' training books. See David McSwane, Nancy R. Rue, Richard Linton, and Anna G. Williams, Food Safety Fundamentals, 83 (Pearson Education, Inc., 2003)(one paragraph of five lines); and NSF Center for Public Health Education, Professional Food Manager Certification Training Coursebook, 50 (2002)(one paragraph of four lines).
(3) U.S. Public Health Service, Food Code (2001). Part 2-2 of the 2001 Food Code appears identical to the 1999 version and was not changed in the 2003 supplement to the 2001 Food Code (U.S. Food and Drug Administration, Supplement to the 2001 FDA Food Code, http://www.cfsan. fda.gov [10 Sept. 2003]).
(4) An excellent discussion of this problem is contained in an article by J. Van Detta, "'Typhoid Mary' Meets the ADA: A Case Study of the 'Direct Threat' Standard Under the Americans with Disabilities Act," 22 Harv. J. L. & Pub. Policy 849 (1999).
(5) 42 U.S.C. [section] 12101(b)(2003). The purposes of the statute were: "(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day to day by people with disabilities."
(6) 29 CFR [section] 1630.16, appendix (2002).
(8) Id. A good argument might be made that because of the nature, seventy, and duration of the diseases listed by the Secretary of Health and Human Services (Norwalk and Norwalk-like viruses, Salmonella typhi, Shigella species, Staphylococcus aureus, and Streptococcus pyogenes, Campylobacter jejuni, Cryptosporidium parvum, Entamoeba histolytica, enterohemorrhagic Escherichia coli, enterotoxigenic Escherichia coli, Giardia lamblia, nontyphoidal Salmonella, Taenia solium, Vibrio cholerae O1, and Yersinia enterocolitica), except in the case of hepatitis A virus, an infected employee would not usually qualify as disabled. (James Chin, Control of Communicable Diseases Manual, 11-14, 79-80, 100-107, 134-136, 155-160, 203-205, 218-222, 440-444, 451-454, 470-475, 488-491, 535-537, 558-561 [17th ed., American Public Health Association, 2000]).
(9) J. Harris, P. Kaufman, S. Martinez, and C. Price, The U.S. Food Market System, 2002, USDA ERS Agricultural Economic Report No. AER811, at 41 (2002).
(10) McSwane, David, Rue, Nancy R., Linton, Richard, and Williams, Anna G., Food Safety Fundaments at 6 (2003). Indeed, infected food handlers are considered one of the five main risk factors for foodborne diseases (NSF Center tar Public Health Education, Professional Food Manager Certification Training Coursebook at 5 ).
(11) 67 Fed.Reg. 61109 (Sept. 27, 2002).
(12) U.S. Public Health Service, Food Code [section] 2201.11(A), (C), and (D) (2001).
(13) U.S. Public Health Service, Food Code Appendix 5, Table 1 (2001).
(14) U.S. Public Health Service, Food Code [section] 2201.12(A) (2001). Those terms are defined in the Food Code as follows:
(29) "Exclude" means to prevent a person from working as a food employee or entering a food establishment except for those areas open to the general public....
(36) "Food establishment" means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption:
(i) Such as a restaurant; satellite or catered feeding location; catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people; market; vending location; conveyance used to transport people; institution; or food bank; and
(ii) That relinquishes possession of food to a consumer directly, or indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers.
(b) "Food establishment" includes:
(i) An element of the operation such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority; and
(ii) An operation that is conducted in a mobile, stationary, temporary, or permanent facility or location; where consumption is on or off the premises; and regardless of whether there is a charge for the food.
(c) "Food establishment" does not include:
(i) An establishment that offers only prepackaged foods that are not potentially hazardous;
(ii) A produce stand that only offers whole, uncut fresh fruits and vegetables;
(iii) A food processing plant;
(iv) A kitchen in a private home if only food that is not potentially hazardous is prepared for sale or service at a function such as a religious or charitable organization's bake sale if allowed by law and if the consumer is informed by a clearly visible placard at the sales or service location that the food is prepared in a kitchen that is not subject to regulation and inspection by the regulatory authority;
(v) An area where food that is prepared as specified in Subparagraph (C)(iv) of this definition is sold or offered for human consumption;
(vi) A kitchen in a private home, such as a small family day-care provider; or a bed-and-breakfast operation that prepares and offers food to guests if the home is owner occupied, the number of available guest bedrooms does not exceed 6, breakfast is the only meal offered, the number of guests served does not exceed 18, and the consumer is informed by statements contained in published advertisements, mailed brochures, and placards posted at the registration area that the food is prepared in a kitchen that is not regulated and inspected by the regulatory authority; or
(vii) A private home that receives catered or home-delivered food.
--U.S. Public Health Service, Food Code [section] 1-201.10(B)(2001).
(15) U.S. Public Health Service, Food Code [section] 1-201.10(B)(2001)("(74) 'Restrict' means to limit the activities of a food employee so that there is no risk of transmitting a disease that is transmissible through food and the food employee does not work with exposed food, clean equipment, utensils, linens; and unwrapped single-service or single-use articles.").
(16) U.S. Public Health Service, Food Code [section] 2201.12(B) and (D)(2001).
(17) U.S. Public Health Service, Food Code Appendix 3 (2001).
(18) U.S. Public Health Service, Food Code Appendix 5, Table 1 (2001).
(19) U.S. Public Health Service, Food Code Appendix 5, Table 1 (2001).
(20) 42 U.S.C. [section] 12113(a) and (b) (2002). See J. Van Detta, "'Typhoid Mary' Meets the ADA: A Case Study of the 'Direct Threat' Standard Under the Americans with Disabilities Act," 22 Harv, J. L. & Pub. Policy 849, 864-867 (1999).
(21) 29 C.F.R. [section] 1630.16, appendix (2002).
(22) 29 C.F.R [section] 1630.2(r) (2002).
(23) See L. Larson & A. Larson, Employment Discrimination, at [section] 155.03 (1998). ("Even if a condition appears on the list, the employer would next have to determine whether there exists a reasonable accommodation that would not pose an undue hardship but that would prevent the transmission of the disease. If there is, then the employee cannot be excluded from the food-handling job.")
(24) 42 U.S.C. [section] 12111(9). For more detail regarding what may constitute a reasonable accommodation, see L. Larson & A. Larson, Employment Discrimination, at [section] 154.04 (1998).
(25) See J. Van Detta, "'Typhoid Mary' Meets the ADA: A Case Study of the 'Direct Threat' Standard Under the Americans with Disabilities Act," 22 Harv. J. L. & Pub. Policy 849, 927-928 (1999), and Office of Disability Employment Policy, U.S. Department of Labor, Job Accommodation for People with Hepatitis (2002).
(26) L. Larson & A. Larson, Employment Discrimination at [section] 154.05 (1998).
(27) 42 U.S.C. [section] 12117(a).
(28) See Ferguson v. City of Phoenix, 931 F.Supp. 688, 697-698 (D.Ariz 1996) (recognizing a 42 U.S.C. [section] 1983 action against the City of Phoenix for violation of Title II of ADA); Independent Housing Serv. v. Fillmore Center Assoc., 840 F. Supp. 1328, 1345 (N.D. Cal. 1993) (recognizing a 42 U.S.C. [section] 1983 action against a city redevelopment agency for violation of Title II of ADA). See also L. Larson & A. Larson, Employment Discrimination, at [section] 102.08 (1998).
Vincent A. Sikora, J.D., LL.M.
Associate Professor, East Tennessee State University