How to Comply with the
Americans with Disabilities Act:
A Guide for Restaurants and
Other Food Service Employers
The Americans with Disabilities Act (ADA) is a federal civil rights law that applies to people with disabilities and protects them from discrimination. The Equal Employment Opportunity Commission (EEOC), a Federal government agency, enforces the sections of the ADA that prohibit employment discrimination. This Guide explains these ADA employment rules for the food service industry.
The ADA is important to food service employers and employees. Food service employers must avoid discriminating against people with disabilities while obeying strict public health rules. Food service workers with disabilities have rights under the ADA when applying for jobs or when working for a restaurant, cafeteria, or other food service employer.
This Guide has three parts: (1) basic information about the ADA; (2) an explanation of the relationship between the ADA and the FDA Food Code (1); and (3) a discussion of the ADA’s rules that prohibit employment discrimination against qualified people with disabilities.
The Americans with Disabilities Act is a Federal law that prohibits most employers from discriminating against a qualified person who has a disability.
The EEOC enforces the employment parts of the ADA. The EEOC has more than 50 offices in cities throughout the U.S. and in Puerto Rico.
The employment provisions of the ADA apply to businesses that have 15 or more employees on the payroll.(2) This includes full and part-time employees. If you have several sites that are all owned, operated, and managed by your business, then you must count all the employees at these sites. But, if you have different sites that are not owned, operated, or managed by the same business, then you have to count all the employees only if your business is an “integrated enterprise.” See Appendix E for information about “integrated enterprises.”
The ADA protects a person with a disability who is qualified for the job.
The ADA does not provide a list of disabilities. The ADA has a legal test to decide if a person has a condition that is severe enough to be an ADA disability.
The ADA defines a current disability as:
- a medical condition or disorder (called an impairment)
- that substantially limits a person
- in doing basic activities (called major life activities).
The ADA also protects a person who has a record of a disability or is regarded as having a disability.
Examples of impairments include hearing loss, limited eyesight, loss of a limb, or an illness from a pathogen (3) transmissible through food, as listed in the FDA Food Code at section 2-201.11.
In order for an impairment to be serious enough to be an ADA disability, the impairment must substantially limit a major life activity.
Examples of major life activities include walking, seeing, hearing, breathing, caring for oneself, performing manual tasks, sitting, standing, lifting, learning, and thinking.
A major life activity is substantially limited under the ADA if it is severely limited either permanently or for a long time by an impairment. An impairment also may cause serious, long-term effects that, in turn, severely limit a major life activity.
The ADA protects people with serious, long-term conditions. It does not protect people with minor, short-term conditions.
The ADA lets the employer hire the most qualified person for the job, regardless of disability.
- To be qualified, a person with a disability must:
- meet job-related requirements (such as having the required education, experience, skills or licenses) and
- be able to perform the job’s “essential functions” (that is, the duties that are central to the job) with or without a reasonable accommodation.
- A reasonable accommodation is a change in the job application process, in the way a job is performed, or to other parts of the job (like employer-sponsored training, benefits, or social events) that enables a person with a disability to have equal employment opportunities. See questions 20-27 for more about reasonable accommodations.
Yes. The ADA requires employers to provide reasonable accommodation to a qualified person with a disability unless to do so would be an “undue hardship.”
Undue hardship means significant difficulty or expense. A requested reasonable accommodation poses an undue hardship if:
- it involves a significant difficulty that disrupts the business;
- it involves a significant expense; or
- it requires the employer to change the basic nature of its business.
If the employer can show that one particular reasonable accommodation will cause an undue hardship, it is not required to provide that reasonable accommodation. See question 24 for more on undue hardship.
Yes. Under the ADA, an employer may refuse to hire or may terminate a person who would pose a “direct threat” to the health or safety of himself or others in the workplace.
Direct threat means a significant risk of substantial harm. A risk is a direct threat only if it cannot be avoided or reduced to safe levels by a reasonable accommodation. An employer must not rely on rumors or on general information about a medical condition. Instead, an employer must figure out, based on facts, whether the individual in qu
The ADA and Diseases Transmissible Through Food
The FDA Food Code addresses the issue of employee health for those employees who work around food. One of the Food Code’s intentions is to protect the public from diseases transmissible through food. The FDA Food Code addresses the Big 4 pathogens:
- Salmonella Typhi,
- Shigella spp.,
- Shiga toxin-producing Escherichia coli
- Hepatitis A virus
Under the ADA, the Centers for Disease Control and Prevention (CDC) must annually publish a list of infectious and communicable diseases.(4) The Big 4 pathogens listed in the Food Code are included on the CDC list.(5) See Appendix F for more information about the Big 4.
The FDA Food Code also discusses symptoms of gastrointestinal illness such as diarrhea, vomiting and fever.
No. It is too early to ask these questions at the job interview. The ADA prohibits it. At the job interview, you should decide if the person is qualified for the job. See question 13.
The best course of action is to follow the guidance of Model Form 1-A, which says food employers should ask questions about symptoms and diseases transmissible through food only after a conditional job offer has been made.
Yes. After you make a conditional job offer, you may ask about diseases transmissible through food. You may ask questions about an applicant’s health and require a medical exam. You must treat all applicants in the same job category the same.
You also may ask medical questions of a current employee, as explained in question 9.
If the applicant is diagnosed with an illness due to one of the diseases listed in the Food Code (the Big 4) and is disabled by that illness, you must follow the requirements of the ADA.
If, however, the applicant has one of the diseases listed in the Food Code, but does not have an ADA disability, the requirements of the ADA do not apply.
Yes, you may require current employees to make these reports. The ADA itself recognizes the danger to public health presented by diseases transmissible through the handling of food. See 42 U.S.C. . 12113(d)(1) and (2). The ADA also says that you may follow any state, county or local food handling law designed to protect the public health from the infectious and communicable diseases identified by the CDC. See 42 U.S.C. . 12113(d)(3). Such state, county or local food handling laws may include the Food Code’s reporting requirements.
Therefore, food service employers who follow the FDA Food Code reporting requirements do not violate the ADA. The FDA Food Code reporting requirements are:
- In section 2-201.11(A), an employee has to report whether he is diagnosed with an illness due to one of the Big 4 listed pathogens.
- In section 2-201.11(B), an employee has to report whether he has any symptomsrelating to intestinal illness, boils or infected wounds.
- In section 2-201.11(C), an employee has to report if he has had a past illness due to one of the listed pathogens.
- In section 2-201.11(D), an employee has to report if he meets one of the specific high-risk conditions for becoming ill due to one of the four listed pathogens.(6)
- In section 2-201.13, an employee must get a medical clearance before the employer may lift the employee’s exclusion or restriction.
You may also ask medical questions of a particular employee who handles food if you have an objective factual basis, i.e., concrete reasons, for linking the employee’s medical condition to workplace safety or job performance. For example, if you see that an employee is vomiting or has other symptoms of a gastrointestinal illness, you may ask her if she has one of the Big 4 diseases. You have an objective reason to believe that the employee may pose a risk to workplace safety because you have observed the symptoms that the FDA has determined are likely to transmit one of the listed foodborne illnesses.
The ADA and the Food Code’s Provisions on “Exclusions” and “Restrictions”(7)
Under the FDA Food Code, a food employee must report if he has certain symptoms, including diarrhea, fever, vomiting, jaundice, or sore throat with fever, which are associated with a gastrointestinal illness. An employee with such a symptom must be restricted from performing certain duties, including food handling. The restriction must remain in place until the employee is free from the suspected infectious agent. You should review the FDA Food Code, section 2.201.13, for a complete explanation of how to remove restrictions.
A food employee also must report if he is diagnosed with an illness due to one of the Big 4 pathogens. If he is, he must be excluded from the food establishment. The exclusion may be removed if the employer obtains approval from the regulatory agency that has authority over the establishment, and the employee provides written medical documentation that he is free from the pathogen and can work as a food employee. See FDA Food Code, section 2.201.13 for a complete explanation of how to remove exclusions.
Most people who have a disease resulting from the Big 4 pathogens are not disabled by them. These diseases are usually short-term and/or minor. If a person does not have an ADA disability, the food service employer may follow the Food Code’s guidance on exclusions without considering the ADA.(8)
But, when a person is disabled by one of the diseases caused by a Big 4 pathogen, the food service employer must consider the ADA in addition to the provisions in the FDA Food Code. The ADA says that an employer may refuse to assign or continue to assign an employee to a job involving food handling if that employee is disabled by one of the diseases on the CDC list (which includes the Big 4 pathogens) and if the risk of transmitting the disease cannot be eliminated by reasonable accommodation. See 42 U.S.C. . 12113(d)(3).
This means that when an employee claims to be disabled by one of the diseases listed in the Food Code and requests reasonable accommodation, you must follow these steps:
The steps to follow: If the employee is disabled by one of the diseases listed in the Food Code, you may follow the Food Code’s requirement that the employee be excluded from the food establishment only if you determine 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 your business; and
there is no vacant position not involving food handling for which the employee is qualified and to which he can be reassigned.
See questions 20-27 for more on reasonable accommodation and undue hardship.
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. See FDA Food Code, section 1-201.10(B)(44).
To meet the requirements of the ADA, you only have to hold the job open if the employee has an ADA disability.
You may fill the job without violating the ADA if the employee does not have an ADA disability. However, if you are covered by the Family and Medical Leave Act, and the employee is eligible for such leave, you may be required to reinstate the employee. See question 27 for information about the Family and Medical Leave Act.
No, the ADA prohibits you from disclosing the name of the employee who may have caused the exposure to a food-related disease, unless disclosing the name is required by another Federal law. The ADA says that medical information is confidential.
You may inform your other employees that they may have been exposed and may have to be tested.
An employer must not keep medical information in an employee’s personnel file. Medical information should be kept in a separate medical file. Only those few employees who really need the medical information for work-related reasons should have access to the file. If the information is stored in a computer file, the employer should limit the number of persons who have access to it. (9)
The ADA's Rules About Applying for a Job
Yes, if the help is requested. The ADA requires that an employer provide a reasonable accommodation so that an applicant with a disability can apply for a job. For example, if you use a computer-based application form and a person with a disability tells you that he wants to apply for a job but cannot use the computer terminal, you would have to provide another way for him to apply.
No. Employers may not ask about an applicant’s medical condition or require a medical exam until after deciding that the person has the necessary job skills and making a conditional job offer. Questions should focus on ability to do the job. You may ask the applicant if she can do the job and to describe her skills and experience. You may ask about gaps in employment and education.
If an applicant has an obvious disability that may prevent her from doing an important part of the job, you may ask her to show or describe how she would perform that job function.
You also may ask if she will need help to do the job (or a “reasonable accommodation”). But you may not ask for details about the disability. (For information regarding the use of Model Form 1-A, see question 6.)
No. But you may ask about the applicant’s medical, disability, and workers’ compensation history after you make a conditional job offer, as long as you do this for everyone in the same job category.
Yes. Someone who currently uses drugs illegally is not protected under the ADA. Therefore, an employer may ask an applicant about her current illegal use of drugs. Questions may involve illegal drugs (cocaine, crack, heroin) and the illegal use of prescription drugs. An employer also may require an applicant to take a drug test. (If the drug test is positive, the employer may validate the test results by asking about lawful drug use or other possible explanations for the positive result, other than the illegal use of drugs.)
An employer also may ask an applicant whether she drinks alcoholic beverages.(10)
No. Alcoholism and past drug addiction may be disabilities. The ADA does not allow questions about disabilities before making a conditional job offer. (But you may ask about current illegal use of drugs and whether the applicant currently drinks alcohol. See question 15.)
Yes, you may require a follow-up examination of just one person if the exam is medically related to the basic information already obtained in the first medical inquiry or exam.
No. You may not take away a job offer solely because a person has a disability. If you believe that the disability will prevent the person from performing the essential functions of the job or raise a safety issue, you should not automatically take away the conditional job offer. Instead, you need to figure out if there is something you can do change how the job is done, let the person take breaks, and so forth so that the person can do the job without posing a direct threat. You may only withdraw the job offer if there is no accommodation that would allow the person to perform the essential functions of the job without posing a direct threat or an undue hardship.
No. You may not take away a conditional job offer made to a HIV-positive person or to any other person for disability-related reasons if the person can do the job safely or if there is a reasonable accommodation that will enable him to do the job without posing a direct threat. HIV is not listed on the CDC list or in the FDA Food Code as a disease transmissible through the food supply. Fear about HIV or AIDS, or concern about others’ reactions, does not justify taking away a job offer.
A reasonable accommodation is a change to the job application process, in the way a job is done, or to other parts of the job (like employer-sponsored training, benefits, or social events), that enables a person with a disability to have equal employment opportunities.
The applicant, the employee, a health care provider, a relative, a friend, or another representative acting on behalf of the applicant or employee, may request the reasonable accommodation.
Generally, no. However, if you are aware that an employee may need an accommodation but is unable to ask for one due to his disability, you may have to start the reasonable accommodation discussion with the employee.
Yes. The ADA does not require an applicant, employee, or a representative to say the words “reasonable accommodation.” The worker or a representative must tell the employer that he needs a change at work for a reason related to a medical condition. If a representative makes the request, the employer should discuss the matter with the worker as soon as possible.
A request does not have to be in writing. It can be communicated during a spoken conversation, through a sign language interpreter, or in other ways. The employer must consider a request for accommodation as soon as it is made, whether orally or in writing.
However, the employer may request the employee or applicant to submit a written confirmation of the request for record-keeping purposes.
The employer needs to take the request seriously and treat it as the first step in finding an effective accommodation. But the employer is not always required to give the employee exactly what he wants.
Often, it makes business sense to work with a person (like the assistant manager) who has an impairment and asks for a reasonable accommodation (like extra breaks), instead of focusing entirely on whether she has a disability and is protected by the law. See question 3 for the definition of disability.
But there are some situations where it is clear that a person has a disability under the ADA.
It is also important not to jump to the conclusion that it would be impossible to accommodate specific types of disabilities.
It is very important that you and your employee work together to figure out whether there is an accommodation that would allow the employee to do the job.
No, you may not automatically reject this request from a person with a disability. The FDA Food Code has special rules for service animals.
You also have to figure out if the service animal would be an “undue hardship” on your business, or whether the service animal would pose a direct threat to the health or safety of your other employees or the public. See questions 4 and 5 for more on undue hardship and direct threat. An employee with a disability is permitted to handle his service animal at work unless the employer demonstrates that it would cause an undue hardship or pose a direct threat.
(A food service business’s obligation to accommodate a customer who uses a service animal is enforced by the Department of Justice. For information on this issue, go to ada.gov or call (202) 307-0663 (voice and TDD).)
26. My restaurant has several locations in the city. One of my employees with a disability can no longer do his job at one location, even with a reasonable accommodation. There are no other openings at that location, but there are several at another restaurant that would be appropriate. Do I have to consider placing the employee at the other restaurant?
Yes. Reassigning an employee with a disability to a vacant position is a reasonable accom- modation and must be considered if you cannot accommodate an employee in his current job. You must consider reassignment before concluding that you cannot provide any accommodation at all.(11) If you operate restaurants in different locations and there are no vacancies in the facility where the employee works, you need to consider vacancies in other locations.
You do not have to create a new position for the employee, and you may require that the employee have the required experience or training for the reassignment.(12)
There are many accommodations that enable people with disabilities to apply for jobs, be productive workers, and enjoy equal employment opportunities. These include:
- Equipment specially made for use by a person with a disability (for example, keyboards designed for one-handed use) or regular equipment that a person with a disability can use to make doing a job easier (for example, a hand cart)
- Making written materials accessible (for example, use of braille)
- Making changes to the physical structure of the workplace (installing a ramp for employee use)
- Job-restructuring, by moving minor tasks to other employees or altering when and/or how a task is performed
- Allowing an employee (for example, a bookkeeper) to work at home
- Modifying a work schedule (for example, changing a start/end time)
- Modifying a workplace rule (for example, a rule barring transfers between restaurants)
- Modifying supervisory methods (for example, by giving an employee detailed job assignments)
- Allowing an employee to take leave
This list is not meant to include every possible accommodation that an employer might provide to a person with a disability.
There is a separate federal law about taking time off for serious medical conditions. That law, the “Family and Medical Leave Act,” applies to employers with 50 or more employees. These employers must give “eligible” employees up to 12 weeks of leave every 12 months for an employee’s own serious medical condition or the serious medical condition of a close family member. This law also covers child birth and adoption. The U.S. Department of Labor enforces this law, not the EEOC. For more information, see the Department of Labor’s website at www.dol.gov/esa/whd/fmla/.
Performance and Conduct of Employees
As a general rule, you should not routinely ask for medical information when an employee’s job performance gets worse over time. Instead, you should directly address the performance issue.
But, sometimes the objective facts give you a reason to believe that a medical condition is causing danger at work or hurting the employee’s performance. When poor job performance or danger appear to be linked to a medical cause, you may ask for medical information or require a medical examination.(13)
No. As long as you treat this employee as you would any other employee who performed poorly or violated conduct rules, you will not violate the ADA, even if he has a disability.
No. As long as you treat this employee the same as you would any other who engaged in similar misconduct, you may terminate this employee.
Similarly, an employee who illegally uses drugs is not protected under the ADA and may be terminated.
31. One of the dishwashers at my restaurant has autism. Autism affects the way he talks and walks, and some of the other kitchen employees make fun of his mannerisms. He is clearly upset by the teasing. The kitchen is a lively place and all of the employees tease and joke with each other. Do I need to address the situation?
Yes. Even if your business has an informal atmosphere that includes teasing and banter among the employees, you need to ensure that such conduct does not go too far. It would be illegal harassment if it were based on disability, unwelcome, and serious and/or occurred numerous times.
As an employer, you are responsible for preventing and eliminating harassment. You should take steps to correct such behavior as soon as possible. If an employee files an ADA charge against your business claiming that he was subjected to harassment on the basis of disability, an investigation would look at the comments and conduct at issue, but also at the steps you took to eliminate and/or prevent the behavior.
Complaints or Charges Against Employers
A complaint or a “charge” of discrimination means only that someone thinks that an employer discriminated against her for reasons that are not legal under Federal equal employment opportunity law: disability, or race, color, national origin, religion, sex, or age. A charge does not mean that you in fact did anything wrong. (On the EEOC web site, www.eeoc.gov, there is a link that explains “How to File a Charge.”)
The EEOC will send you a copy of the charge and request a response and supporting information. Prior to a formal EEOC investigation, you may be given the opportunity to mediate the issues raised in the charge. Mediation is a less expensive and less time-consuming way of resolving an employment dispute; in fact, the EEOC mediation program is FREE, voluntary, and confidential.
Depending on how the mediation goes, the EEOC may then investigate the charge. If the EEOC finds “reasonable cause” to believe that you discriminated against the charging party, it will invite you to conciliate the charge (this is a chance to deal with the charge informally). In some cases, where conciliation fails, the EEOC will file a civil court action. If the EEOC finds no discrimination, or if conciliation fails and the EEOC chooses not to file suit, it will issue a “notice of a right to sue,” which gives the person 90 days to file a private court action.
For a detailed description of the process, check out the EEOC website and click on the link to “Small Businesses,” and then the link to “When A Charge Is Filed Against My Company.”
33. An employee filed a charge against my business, claiming that he had been discriminated against on the basis of his disability. The EEOC found that there was no reasonable cause to support the claim. I am very angry that this employee accused me of such behavior and I am considering terminating him. Is this permitted?
No. If you terminate an employee because he filed a charge of employment discrimination against you, you are retaliating against that employee. Retaliation on the basis of filing a charge is prohibited by the ADA.
Once you receive a charge, you need to be careful not to retaliate against the person who filed it, especially if the person still works for you. Sometimes, an employer is angry that she and her business have been charged with discrimination. But be careful: it is not unusual for the EEOC or a court to rule that there was no discrimination but that there was retaliation!
You may not retaliate against a person who files a charge of discrimination. You also may not retaliate against someone who “participates” in the EEOC process by, for example, requesting a reasonable accommodation or serving as a witness in support of a co-worker’s charge of discrimination. Additionally, you also may not retaliate against someone who opposes conduct that she believes is discriminatory by, for example, signing a petition protesting a perceived discriminatory practice at your company.
FEDERAL TAX INCENTIVES TO ENCOURAGE THE EMPLOYMENT OF PEOPLE WITH DISABILITIES AND TO PROMOTE THE ACCESSIBILITY OF PUBLIC ACCOMMODATIONS
The Internal Revenue Code includes several provisions aimed at making businesses more accessible to people with disabilities. The following is designed to give you general information about three of the most significant tax incentives. It is not legal advice. You should check with your accountant or tax advisor to find out whether you are eligible to take advantage of these incentives or visit the Internal Revenue Service’s website, www.irs.gov, for more information. Additionally, consult your accountant or tax advisor about whether there are similar state and local tax incentives.
Small Business Tax Credit (Internal Revenue Code Section 44: Disabled Access Credit): Small business with either $1,000,000 or less in revenue or 30 or fewer full-time employees may take a tax credit of up to $5,000 annually for the cost of providing reasonable accommodations such as sign language interpreters, readers, materials in alternative format (such as Braille or large print), the purchase of adaptive equipment, the modification of existing equipment, or the removal of architectural barriers. Work Opportunity Tax Credit (Internal Revenue Code Section 51) (pending reauthorization as of October 2004): Employers who hire certain targeted low-income groups, including people referred from vocational rehabilitation agencies and individuals receiving Supplemental Security Income (SSI), may be eligible for an annual tax credit up to $2,400 for each qualifying employee who works at least 400 hours during the tax year. An annual tax credit of up to $1,500 may be available for each qualifying employee who works at least 120 hours but less than 400 hours during the tax year. Additionally, a maximum credit of $1,200 may be available for each qualifying summer youth employee. Architectural/Transportation Tax Deduction (Internal Revenue Code Section 190: Barrier Removal): This annual deduction of up to $15,000 is available to businesses of any size for the costs of removing barriers for people with disabilities, including the following: providing accessible parking spaces, ramps, and curb cuts; providing wheelchair-accessible telephones, water fountains, and restrooms; making walkways at least 48 inches wide; and making entrances accessible.
INFORMATION ABOUT REASONABLE ACCOMMODATIONS
Below are a few of the most frequently consulted resources for accommodating qualified people with disabilities. Many other resources exist both nationally and locally, such as organizations of and for individuals with particular types of disabilities. Finding one of these organizations in your area may be as simple as consulting your local phone book. Additionally, the federal government has a web site, www.disabilitydirect.gov, which provides links to many federal resources.
Job Accommodation Network (JAN)– provides lists of accommodations
based on specific disabilities as well as links to various other accommodation providers P.O. Box 6080
Morgantown, WV 26506-6080 (800) 526-7234 or (304) 293-7186 www.jan.wvu.edu
U.S. Department of Labor
Office of Disability Employment Policy
(866) 633-7365 (voice); (877) 889-5627 (TTY) www.dol.gov/odep
ADA Disability and Business Technical Assistance Centers (DBTACs) – 10
federally funded regional centers to provide assistance on all aspects of the ADA.
RESNA Technical Assistance Project – refers people to projects offering technical
assistance on technology-related services for individuals with disabilities.
(703) 524-6686 (voice); (703) 524-6639 (TTY) www.resna.org
Employment and Disability Institute
Program on Employment and Disability
School of Industrial and Labor Relations
106 ILR Extension
Ithaca, NY 14853-3901
(607) 255-7727 (voice); (607) 255-2891 (TTY)
Business Leadership Network – national program led by employers that engages the leadership and participation of companies throughout the United States to hire qualified job candidates with disabilities. www.usbln.com
FINDING QUALIFIED WORKERS WITH DISABILITIES
Many businesses say that they would like to hire qualified people with disabilities, but do not know where to find them. The following resources may be able to help. In addition, you may contact organizations of and for individuals with specific disabilities in your area and consultwww.disabilitydirect.gov.
JOB ACCOMMODATION NETWORK (JAN) – provides a variety of resources
for employers with employees with disabilities and those seeking to hire
employees with disabilities:
P.O. Box 6080
Morgantown, WV 26506-6080
(800) 526-7234 or (304) 293-7186
www.jan.wvu.edu/SBSES/VOCREHAB.HTM (provides links to Vocational
Rehabilitation State Offices)
Employer Assistance Referral Network (EARN) – a national toll-free telephone and electronic information referral service to assist employers in locating and recruiting qualified workers with disabilities. EARN is a service of the U.S. Department of Labor, Office of Disability Employment Policy with additional support provided by the Social Security Administration’s Office of Employment Support Programs:
1 – 866 – EARN NOW (3276669)
INTERNET LINKS TO FOOD SAFETY AND HEALTH SITES
General Food Safety
www.foodsafety.gov A gateway link to government food safety information
http://www.cdc.gov/ncidod/dbmd/diseaseinfo/files/foodborne_illness_FAQ.pdf CDC web page with general information on foodborne illness
http://www.cdc.gov/ncidod/dbmd/diseaseinfo/foodborneinfections_t.htm CDC web page with more technical foodborne illness information
State and Local Contacts
http://www.fda.gov/ora/fed_state/directorytable.htm FDA’s Directory to State and Local Officials
http://www.cdc.gov/mmwr/international/relres.html CDC web page with links to State and Local Health Departments
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss4901a1.htm Surveillance for foodborne disease outbreaks 1993-1997, CDC
Health Privacy Information
http://www.hhs.gov/ocr/hipaa/ Department of Health and Human Services HIPAA web site
If an employer does not have the minimum number of employees to meet the statutory requirement, it is still covered if it is part of an “integrated enterprise” that, overall, meets the coverage requirement. An integrated enterprise is one in which the operations of two or more employers are considered so intertwined that they are considered a single employer. The separate entities that form an integrated enterprise are treated as a single employer for purposes of both coverage and liability.
The factors to be considered in determining whether separate entities should be treated as an integrated enterprise are:
- The degree of interrelation between the operations;
- The degree to which the entities share common management;
- Centralized control of labor relations and;
- The degree of common ownership or financial control over the entities.
THE FDA FOOD CODE AND THE ADA
Under the ADA, the Centers for Disease Control and Prevention (CDC) must publish annually a list of infectious and communicable diseases. The Big 4 pathogens listed in the Food Code are included on this list. The FDA has concluded that an employee who meets one of the factors described in section 2-201.11 of the Food Code is likely to be at risk for contracting or transmitting one of these diseases. See Annex 3 of the FDA 2001 Food Code at pp. 262-265 available at http://www.cfsan.fda.gov/~dms/fc01-a3.html#a3-2 (scroll down to section titled “Disease or Medical Condition”)
As noted in the section on the ADA and Diseases Transmissible Through Food, the FDA Food Code requires that food employees with certain symptoms be “restricted” for certain duties, and that food employees with certain diseases be “excluded” from the food establishment.
The Food Code states that “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, or unwrapped single-service or single use articles. See section 1-201.10(B)(74) available at http://www.cfsan.fda.gov/~dms/fc01-1.html#1-2 (scroll down to (B)(74))
The Food Code defines “exclude” as: to prevent a person from working as a food employee or entering a food establishment except for those areas open to the general public. See section 1- 201.10(B)(29)at http://www.cfsan.fda.gov/~dms/fc01-1.html#1-2 (scroll down to (B)(29))
The Food Code describes the restrictions and exclusions that apply to food employees in section 2-201.12. See section 2-201.12 at http://www.cfsan.fda.gov/~dms/fc01-2.html#2-2 (scroll down to section 2-201.12) This section of the Food Code does not include information about the employer’s responsibility under the ADA to provide reasonable accommodation to qualified people with disabilities. There is, however, no conflict between the FDA Food Code’s exclusion and restriction requirements and the ADA, as made clear by information provided in Annex 3 of the FDA 2001 Food Code.
The FDA Food Code’s Annex 3 states that food employees must be accommodated to the extent provided under the ADA. It explains that if there is an accommodation that will not pose an undue hardship to the employer and that will prevent the transmission of the disease through food, the accommodation must be offered. See Annex 3 of the FDA 2001 Food Code at pp. 262-263 available at http://www.cfsan.fda.gov/~dms/fc01-a3.html#a3-2 (scroll down to section titled “Disease or Medical Condition”) The guidance of the Food Code is consistent with the requirements of the ADA.
1. References in this Guide to the “FDA Food Code” are to the FDA 2001 Food Code, available online at http://www.cfsan.fda.gov/~dms/fc01-toc.html . The Food Code is a model code developed by the FDA which is offered for adoption by local, state, and federal governmental jurisdictions for administration by the various departments, agencies, and other units within each jurisdication 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. In jursidictions where the Food Code has not been adopted, its provisions are not requirements for food establishments. In the text of the Guide, we presume that the Food Code has been adopted and, hence, refer to the Food Code as imposing requirements. This Guide applies general principles of the ADA to the Food Code.
2. Food service establishments are also “public accommodations” that are covered by Title III of the ADA, regardless of the number of employees. As public accommodations, food service businesses may need to make physical changes or other modifications to their facilities to serve members of the public with disabilities. The Department of Justice (DOJ) enforces Title III of the ADA and provides free information about it. You can contact DOJ at (800) 514-0301, or log onto www.ada.gov for more information.
4. The ADA requires the Secretary of Health and Human Services (HHS) to prepare annually a list of infectious and communicable diseases which may be transmitted through food handling. Seehttp://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/pdf/03-27923.pdf for a copy of the most recent CDC list (as of September 2004).
5. The upcoming 2005 FDA Food Code may expand the Big 4, to include additional diseases on the CDC list. The ADA rules discussed in this Guide, including those on excluding employees from the food establishment (pages 9-11), would apply to any diseases on the CDC list.
6. This section of the Food Code requires employees to report whether they have had an illness from Hepatitis A virus, or whether they have had an illness from S. Typhi within the past 3 months; Shigella spp. within the past month; or Shiga toxin-producing Escherichia Coli within the past month. Annex 3 of the Food Code indicates that these reporting requirements are based on the periods of communicability for the four pathogens.
7. This Guide provides a brief summary of portions of the Food Code relevant to the ADA. It should not be used as a substitute for the Food Code, which provides far more detail on restrictions, exclusions and other topics.
8. It is even more unlikely that a person who has not been diagnosed with a disease, but has one or more of the gastrointestinal symptoms listed in the Food Code, has an ADA disability by virtue of these symptoms alone.
9. See the EEOC’s Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (July 27, 2000) available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html for more on the confidentiality of medical documentation.
10. See the EEOC’s Guidance on Preemployment Disability-Related Questions and Medical Examinations (October 10, 1995) available at http://www.eeoc.gov/policy/docs/preemp.html for additional guidance on questions related to drinking habits.
11. If reassignment would interfere with a seniority system, special rules apply. See the EEOC’s Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (as revised, October 17, 2002), question 31. See http://www.eeoc.gov/policy/docs/accommodation.html
12. You must first look for a vacant position that is equal to the employee’s current position in terms of pay, status and other factors (like benefits and location). If there is no such position, you must reassign the employee to a vacant lower level position for which he or she is qualified that is as close as possible to the employee’s original position. If an employee is reassigned to a lower level position, you do not have to continue to pay his or her original salary, unless you do so for employees without disabilities who are transferred to lower level positions.
13. See the EEOC’s Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (July 27, 2000) available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html for more on when you may ask medical questions of employees.
This page was last modified on September 29, 2014.