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A food service worker has become disabled by the Hepatitis A virus. The Food and Drug Administration's Food Code requires that an employee diagnosed with Hepatitis A virus be excluded from the food service establishment. Does the worker's employer have any other obligations with regard to the employee? |
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Answer: |
Yes. Although most people who have a disease resulting from the "Big 4 pathogens" are not disabled by them, the Americans with Disabilities Act must be considered when a disability results. The ADA says that an employer may refuse to assign a job involving food handling to an employee who is disabled by one of the diseases on the CDC list of food-transmitted infectious diseases if the risk of transmitting the disease cannot be eliminated by reasonable accommodation. Therefore, employers may follow the Food Code's exclusion requirement only if it is determined that:
- there is no reasonable accommodation that would eliminate the risk of transmitting the disease while also allowing the employee to work in his food handling position, or
- all reasonable accommodations would pose an undue hardship on the business; and
- there is no vacant position not involving food handling for which the employee is qualified and to which the employee can be reassigned.
These steps must be followed even for employees who serve a "highly susceptible population," for example older adults obtaining food in a nursing home or hospital.
Employers may need to hold open the job of an employee who has been disabled by disease and has been given a reasonable accommodation or has been excluded from the food establishment. The ADA requires employers to return the employee to the full duties of the original position once the need for accommodation or exclusion has passed (once the risk of transmitting the disease through food no longer exists), unless holding the position open would pose an undue hardship. If holding the position open for the entire period of accommodation or exclusion would pose an undue hardship, employers must determine if there is a vacant equivalent position for which the employee is qualified and to which the employee can be returned without causing undue hardship.
Source: "How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers," issued by the U.S. Equal Employment Opportunity Commission. |
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