From the desk of Linda Carter Batiste, J.D., Principal Consultant/Legislative Specialist
Employers who contact JAN with questions regarding hepatitis and food service jobs tend to mainly be concerned about the danger of spreading the disease, what medical questions they can ask about hepatitis, and whether they can tell coworkers when an employee discloses hepatitis. Our answers to these questions often start with the same statement: it depends on what type of hepatitis the person has. Why does this matter? There are three main types of hepatitis: A, B, and C. However, only one type is spread through contaminated food and that’s hepatitis A.
Luckily, many of the questions we receive about hepatitis A and food service jobs are addressed in a publication from the Equal Employment Opportunity Commission called How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers. The following answers are based on information contained in this publication.
Can a person with hepatitis A be denied a food service job based on safety concerns without violating the Americans with Disabilities Act (ADA)?
The food service industry must comply with the Food and Drug Administration's (FDA) Food Code and because the ADA does not override other federal laws, the answer to this question often depends on what the Food Code says. Under the Food Code, hepatitis A is listed as one of the “Big 4 pathogens,” which are infectious diseases communicable through food. According to the Food Code, an employee with one of the Big 4 must be excluded from the food establishment, at least initially.
If the employee has a disability under the ADA, there are additional steps an employer must take. First, the employer must consider holding the employee’s job until the exclusion from food handling is removed or if that’s not possible, must consider reassignment to a non-food handling job. According to the Food Code, 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.
What questions can food service employers ask about hepatitis A and when can these questions be asked?
Under the ADA there are different rules about asking medical questions depending on the stage of employment.
Application/interview stage: It is too early to ask medical questions at this stage, including questions about hepatitis A, because the ADA prohibits it. At this stage, employers should focus on whether an applicant is otherwise qualified for the job.
Post job offer/pre-employment stage: After a conditional job offer is made, an employer can ask any medical questions it wants, including questions about hepatitis A. As long as all applicants in the same job category are treated the same, and employer can ask any medical questions or require any medical exams it chooses at this stage.
Employment stage: The FDA Food Code requires employees to report whether they are diagnosed with hepatitis A so an employer may require current employees to make these reports. The ADA does not prohibit employers from making medical inquires required by federal law so employers who follow the FDA Food Code reporting requirements do not violate the ADA.
In addition, an employer may ask medical questions of a particular employee who handles food if the employer has an objective factual basis, i.e., concrete reasons, for linking the employee's medical condition to workplace safety or job performance. For example, if an employer notices an employee has symptoms of an illness outlined in the Food Code, the employer may ask the employee if she has one of the Big 4 diseases, including hepatitis A.
Can an employer tell other employees that a specific employee has been diagnosed with hepatitis A?
No, the ADA prohibits employers from disclosing that a specific employee has a disability, unless disclosing the name is required by another Federal law. Employers may inform other employees that they may have been exposed and may have to be tested, but should not disclose the name of the employee.
- Also see: https://www.eeoc.gov/eeoc/foia/letters/2004/ada_confidentiality.html
- Local public health authorities or the Centers for Disease Control (CDC) may be able to provide additional information. You can reach the CDC at (800) CDC-INFO [(800) 232-4636)].