It is not uncommon for employers in the meat or food processing business to, on occasion, be confronted with an employee’s illness that raises the question of whether leaving the employee with the medical condition in the plant jeopardizes food safety and/or the safety and health of other employees. Plant managers and supervisors cannot be expected to know whether a particular condition is contagious or endangers the food supply. In many cases, the employee has not received any medical diagnoses of the condition and its potential to expose products or employees to an infectious disease. Is the condition something that might put products or other employees at risk? Should we keep the employee off duty until a medical release is presented? These and similar questions invariably arise. How to respond in a humane, understanding and yet responsible manner creates a dilemma for most employers.
What FSIS Says
The Food Safety and Inspection Service (FSIS) provides continuous inspection of all meat production and processing, as well as most of the related food supply. Fortunately, FSIS regulations, in relevant part, provide some guidance for these situations. 9 CFR Section 416.5 at subsection (c) provides:
- (c)Disease control Any person who has or appears to have an infectious disease, open lesion, including boils, sores, or infected wounds, or any other abnormal source of microbial contamination, must be excluded from any operations which could result in product adulteration and the creation of insanitary conditions until the condition is corrected.
In addition to the FSIS guidance, the Department of Health and Human Services, through the Centers for Disease Control and Prevention (CDC), annually publishes a list of infectious and communicable diseases that are transmitted through handling the food supply. The CDC notes that some pathogens cause diseases when meat or food products are intrinsically contaminated or cross-contaminated during production, processing, or transportation, but may also be contaminated when prepared by infected persons. They cite the failure of food-handlers to wash their hands in certain situations, including after using the toilet, handling raw meat, cleaning around their workstation and the surrounding floor, or handling garbage, as well as failing to use clean gloves as often being responsible for the foodborne transmission of pathogens.
What Diseases May Be Transmitted
The list of pathogens from the CDC that may be transmitted by an infected food handler contains more than 20 different pathogens, using their scientific names. Among those that can most commonly occur in food processing are Campylobacter jejuni, Clostridium perfringens, Shiga toxin-producing, E. coli, Hepatitis A, Norovirus, Salmonella typhi, Shigella species, and Staphylococcus aureus. While any one of these pathogens or others may be the problem pathogen, acute viral Hepatitis A seems to be the one that most frequently causes infectious employee illness that poses problems in meat and other food production operations. Between 2011 and 2017 incidence rates of Hepatitis A increased by 140%. It is highly contagious and can be transmitted person-to-person, as well as by ingesting contaminated food or water. Of the three types of Hepatitis, A, B, and C, it is the only type that can be transmitted through the food supply. Removing an employee who has Hepatitis A from any contact with the meat or food products is a necessary step for compliance with both food safety requirements and the safety and health of fellow employees. However, the employee, unless so informed by a medical professional, may not know that they are contagious. Immediate action once the presence of Hepatitis A has been identified is critical.
Illnesses and Disabilities
A related issue of potential concern is that Hepatitis A could be considered a protected disability under the provisions of the Americans with Disabilities Act, as amended, (ADAAA) or similar state law even though its symptoms are of relatively short duration. It could require that the employer engage in the interactive process and consider reasonable accommodation that does not pose an undue hardship. Unfortunately, the options for accommodations where Hepatitis A is involved are quite limited. Placing the infected employee in a non-food handling position, assuming the symptoms would even permit working, might still expose others to the infectious pathogen. In light of the highly contagious nature of Hepatitis A, perhaps the only reasonable accommodation would be for a medical leave of absence sufficiently long for the condition to run its course, which can be several weeks.
A Further Look at Hepatitis A
Since the late 1990’s Hepatitis A immunization has been required for all children at ages 12 and 18 months. Therefore, except for immigrant employees who likely did not receive the vaccine, those at risk of becoming infected are employees beyond their early 20’s. Since the workforce in the meat and food industry, at least in certain segments, is largely comprised of immigrants, some quite recent, this does to some extent increase the potential. When a person becomes infected, the period of being contagious, as well as suffering through the typical symptoms of fatigue, nausea, jaundice, fever, and abdominal pain can run several weeks. Once the episode ends and the employee is symptom-free, the anti-bodies created as a result of the infection will generally protect the person from any future recurrence for life. The CDC counsels that food service workers do not need routine vaccinations against Hepatitis A because foodborne outbreaks are relatively uncommon in the United States.
What Can Producers Do?
Employers need to take all precautionary steps available to be prepared to address the issue of an employee with an infectious disease when the situation arises. In the case of employees, review of the FSIS disease control guidelines in the language with which they are most comfortable should be an important part of any hygiene and food safety training provided during the onboarding process. The information should be provided again as part of any additional food safety training conducted later in their tenure. With regard to supervisors and managers, not only should they be familiar with the FSIS guidelines and the types of pathogens they might encounter in employee illnesses, they must recognize that they are the employer’s first line of defense in responding to an infectious disease issue. To the extent possible, they should be familiar with at least some of the symptoms for the more common pathogen-caused illness. They should also be aware of the food safety implications as well as that the employee’s condition could be a disability protected by the ADAAA. It could require engaging in the interactive process to try to find a reasonable accommodation. Ultimately, the goal is to protect the safety of the food supply as well as the health and well-being of fellow employees, while dealing compassionately with an employee who is infected with a disease they did not seek out.
Richard D. Alaniz is a partner at Alaniz Law & Associates, a labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over forty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article, or requests to subscribe to receive Rick’s monthly articles, can be addressed to Rick at (281) 833-2200 or firstname.lastname@example.org.