Summary
How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers

Background

The Equal Employment Opportunity Commission (EEOC) is frequently asked questions about whether restaurants and other food service employers risk violating the Americans with Disabilities Act (ADA) if they base employment decisions, such as whether to exclude an employee from the workplace, on local public health rules modeled on the Food and Drug Administration's Food Code. The EEOC is issuing a Guide titled How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers (Guide), to assure employers that they can follow rules based on the Food Code and also comply with the ADA. The Guide also explains how the ADA applies to food service employers and people with disabilities who work in restaurants.

• The Americans with Disabilities Act (ADA) is a federal civil rights law that applies to people with disabilities and protects them from discrimination. EEOC, a Federal government agency, enforces the sections of the ADA that prohibit employment discrimination.
• The Food Code is a model code developed by the Food and Drug Administration (FDA). The Food Code provides guidance on health issues for the food service industry. The FDA strongly encourages adoption of the Food Code by local, state, and federal governmental jurisdictions.

The Guide is written in question/answer format and has three parts. The complete Guide is available at: http://www.eeoc.gov/facts/restaurant_guide.html. The following summary provides a brief overview of the Guide.

Part 1: Basic ADA information

Part 1 of the Guide is designed to answer basic questions about the ADA and who it protects. In short:

The ADA protects qualified persons with disabilities.

• A person must have a serious, long-term medical condition or disorder that makes it very difficult for him or her to do basic activities.
• The person also must be qualified to perform the job. This means that the person must have the education, experience or skills necessary to do the job AND must be able to perform the duties that are central to the job, with or without a reasonable accommodation.

A reasonable accommodation is a change in the application process, in the way a job is performed, or to other parts of the job (like training or benefits) that allows a person with a disability to have equal employment opportunities.

Employers must provide reasonable accommodations to qualified employees and applicants with disabilities, unless the accommodation would impose an undue hardship on their business.

• Undue hardship means a significant difficulty or expense.

Part 2: The ADA and the FDA Food Code

Part 2 of the Guide answers questions about the FDA’s Food Code and the requirements of the ADA.

Under the ADA, the Centers for Disease Control and Prevention (CDC) must annually publish a list of infectious and communicable diseases. The list is made up of pathogens, such as viruses and other microorganisms, which are substances that cause diseases. The ADA has special rules for people who have diseases due to the pathogens on the CDC list.

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 2001 Food Code discusses four pathogens included on the CDC list:

• Salmonella Typhi
• Shigella spp.
• Shiga toxin-producing Escherichia coli
• Hepatitis A virus

These pathogens are called the Big 4. They are easily transmissible through food.

The FDA Food Code states that employees diagnosed with a disease due to one of the Big 4 pathogensshould be excluded from the food establishment.

The FDA Food Code also states that employees with certain symptoms (diarrhea, fever, vomiting, jaundice, or sore throat with fever) should be restricted from certain duties, including food handling.

Most people who have a disease due to one of the Big 4 pathogens are not disabled by that disease. Diseases caused by the Big 4 pathogens are usually short-term and/or minor. It is even more unlikely that people who only have a symptom listed in the Food Code, but who have not been diagnosed with a disease, would have an ADA disability due to the symptom alone.

But, if a person is disabled by one of the diseases caused by a Big 4 pathogen, the 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 food handling position if the employee is disabled by one of the diseases on the CDC list and the risk of transmitting the disease cannot be eliminated by a reasonable accommodation.

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:

• If the employee is disabled by one of the diseases listed in the Food Code, you may follow the Food Code's guidance 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 allowing the employee to remain in her food handling position; or
• all reasonable accommodations are too difficult or expensive and there is no vacant position not involving food handling to which the employee can be reassigned.

The ADA also has rules about when employers may ask applicants and employees questions about their health, including questions about diseases transmissible through food.

• No medical questions may be asked of applicants until a conditional offer of employment has been made. Once a conditional job offer is made, employers may ask medical questions and require medical exams, as long as employers treat all applicants for the same type of job the same. Questions 13-19 in Part 3 of the Guide explain other ADA rules about asking applicants medical questions.
• Employers may ask current employees medical questions only when there are concrete reasons to believe that the employee cannot perform the job or poses a risk to workplace safety due to a medical condition. The ADA also allows employers to require current employees to follow the Food Code's guidance on reporting certain situations relating to health, such as if they have certain diseases transmissible through food. This rule is spelled out in question 9 of the Guide.

Part 3: ADA rules prohibiting discrimination against people with disabilities

Part 3 of the Guide focuses on ADA rules that prohibit employment discrimination against qualified people with disabilities.

Providing Reasonable Accommodation

There are many different types of reasonable accommodations, including: providing special equipment, removing minor tasks from a particular job, allowing time off, and reassigning an employee to a different job. Other examples of reasonable accommodations are provided in question 27.

• A request for a reasonable accommodation does not need to be written or include any special words. A request can be made by the applicant/employee, or by a doctor, relative or other representative.
• If an employer decides that a requested reasonable accommodation would be too difficult or expensive, it must figure out if there is a different accommodation that would not be an undue hardship.
• The FDA Food Code prohibits the handling of animals, but it allows employees to use service animals. If an employee asks to use a service animal as a reasonable accommodation, the employer must figure out if allowing the use of the service animal would be an undue hardship or pose a significant risk of substantial harm to the employee or others in the workplace.

Performance and Conduct

• An employer does not have to excuse poor job performance or misconduct, even if the performance or conduct is related to a person’s disability. The employer should treat all employees who perform poorly or violate conduct rules the same.
• Teasing that is based on someone’s disability and is unwelcome, serious and/or repeated, is illegal harassment. When the EEOC investigates complaints of harassment, it looks at the steps an employer took to prevent or eliminate the behavior.

Charges Against Employers

• A complaint or a "charge" of discrimination means 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. See http://www.eeoc.gov/charge/index.html for more information on the charge process.
• The ADA prohibits retaliation against people who file charges of discrimination or complain about behavior they think is discriminatory. For example, an employer violates the ADA if it fires (or takes other negative action against) someone for filing a charge, requesting a reasonable accommodation, acting as a witness in a co-worker’s discrimination charge, or signing a petition protesting a hiring practice he thinks is discriminatory.

This page was last modified on October 28, 2004.

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