From Spitting in Food to an Explosive Diarrhea Outbreak: What Recent Food-Safety Cases Mean for Employers

What Jannica Church was expecting to be a normal visit to Arby’s turned into the beginning of her development of Herpes. What many customers were expecting to be a normal Taco Bell experience ended up leaving them with explosive diarrhea. While these recent food safety cases could be blown off as everyday headline, they actually provide insight for restaurants and other food-related businesses on the importance of proper hiring and training of employees. Employers should take the information learned from these recent cases and use it as a lesson on the significance of compliance with federal, state, and local food safety regulations.

Spitting in Food…

Jannica Church, an Oklahoman woman, visited a drive-thru Arby’s on March 28th to get food for herself and her family. However, shortly after eating this food, Church tested positive for Type 1 of the Herpes Simplex Virus (HSV-1), which is a highly contagious virus spread by oral contact. Following her development of HSV-1, Church and the rest of her family filed suit against Amanda Hendricks, the manager of the Arby’s restaurant they visited. Church alleges that Hendricks, who was aware of her own active HSV-1 infection, spat in the food she ordered from Arby’s leading to the former’s development of the virus. On May 4, Hendricks was arrested by local authorities and charged with poisoning food or medicine with intent of injury. Church and her family further allege Hendricks is liable for battery, infliction of emotional distress, and negligence.

In addition to filing suit against Hendricks however, the Church’s also filed suit against Arby’s itself in Oklahoma. The family alleges that the restaurant is liable for product liability, negligent infliction of emotional distress, and most importantly, negligent hiring, training, supervision and retention. While there have been no official decisions made regarding the Church’s case yet, the suit brings important attention to the possible liability employers can face for even just one of their employee’s negligent actions.

What This Means for Employers

Church’s case is not the only food safety story making news headlines lately. A recent outbreak of the Cyclospora virus, which causes explosive diarrhea and has infected more than 6,000 individuals, has been traced back to a Taco Bell. On the surface, both the Cyclospora and HSV-1 cases seem the same; an issue with a restaurant’s food service leads to the development of a disgusting sickness. However, while Arby’s is facing suit for the development of HSV-1 in Jannica Church, there have been no suits brought against Taco Bell for its role in the Cyclospora outbreak. One might be wondering why this is, especially given the large number of people infected with Cyclospora as compared to just one individual being infected with HSV-1. Taking a closer look at these two cases helps us get to the bottom of it.

While a Taco Bell ultimately served the food that led to the recent explosive diarrhea outbreak, there was no way the restaurant could have prevented such a thing. This is because the Cyclospora outbreak did not actually originate at a Taco Bell restaurant. Taco Bell, like many famous food chains, imports most of their ingredients from outside sources. For example, their lettuce is pre-packaged and delivered to them from Taylor Farms, one of the places currently suspected as being the originator of this outbreak. While Taco Bell employees unpackage the lettuce, prepare and serve it, there was nothing any of them could do to know about or prevent Cyclospora from spreading. This would have been the job of their food providers. On the other hand, the Arby’s restaurant that served Jannica Church her food had a more direct role to play in her development of HSV-1. Amanda Hendricks, while knowing she had an HSV-1 outbreak, spat in Chruch’s food, directly leading to the latter’s infection. Because it was the responsibility of Arby’s to hire and properly train Hendricks, the restaurant itself can be considered responsible for her actions when serving food.

Legal claims like the one against Arby’s are not unusual in the food industry. Suits brought against restaurants themselves commonly focus on whether the establishment failed to follow required safety standards or acted negligently in handling food. While the actions of just one employee are ultimately out of anyone’s control, there are many steps employers can take to prevent incidents similar to the one at Arby’s from occurring and protect themselves from liability in the event of a lawsuit.

What can Employers do to Protect Themselves?

Employers that handle, prepare, or serve food must comply with federal, state, and local food safety regulations. This compliance includes maintaining proper hygiene, preventing contamination, and ensuring that food is stored and handled at safe temperatures. The Occupational Safety and Health Administration (OSHA) sets and enforces workplace safety standards for companies that handle food. According to OSHA, employers must provide a safe working environment, train employees in safety procedures, and maintain records of workplace injuries and illnesses. Following OSHA and other governmental safety standards is imperative for employers in the food industry.

The most important thing employers can do to follow the OSHA guidelines is implement strong food safety procedures and ensure that all staff members are properly trained. Manager training, supervisor training, and frontline worker training are all important to ensure food safety programs are consistently implemented and employees remain vigilant. One example of a training program employers can implement is Food Defense in 15, which was developed by the Food Protection and Defense Institute at the University of Minnesota. One way that this program can be accessed is through the Zosi online website. This course helps employees understand the importance of their company’s food defense plans and the significance of their role in protecting the food supply. It is further recommended that following participation in any training programs, employees are provided concrete examples of activity types, potential food adulteration threats, and mitigation strategies to practice what they have learned. Finally, it is also incredibly paramount to teach employees that they have an important responsibility to watch their environment, and report issues and suspicious activity if noticed.

If You’re Sick, Stay at Home!

In addition to training employees on the importance of food safety, it is also important for employers to properly manage any workers who might be sick. If a contagious employee serves food or comes into their job, they could infect other individuals. If that employee knew that they were sick during their time of work, both them and the company they work for could be held liable for the infection of others. Luckily, the Center for Disease Control (CDC) has policies for sick employees posted on its website that are easy for employers to follow. The CDC advises restaurants and other businesses that work with food to create and strengthen written policies that require employees to inform higher-ups of when they are sick, including which symptoms should keep them from working. Furthermore, the CDC recommends that employers create schedules that ease pressure for workers to complete work when they are sick. Following these guidelines can further prevent an outbreak that starts in a restaurant and help protect companies from possible liability.

The CDC further recommends that individuals who develop certain diseases should stay home, including:

• Respiratory illnesses (i.e., influenza, COVID-19, the common cold)
• Gastrointestinal bugs (i.e., norovirus, gastroenteritis)
• Contagious infections (i.e., strep throat, pink eye)

Bottom Line

Employers should ensure that all employees complete food safety training before working with food. Properly training workers and implementing strong food safety procedures demonstrates that employers have taken proactive steps to educate their staff and maintain safe practices. Demonstrating such a strong commitment to safety can strengthen a restaurant’s compliance efforts and reduce the likelihood of liability in the event of an employee spitting in someone’s food.

by Jacob M. Monty

Monty & Ramirez LLP