Sick foodhandlers.  It’s a problem nationally at many restaurants, and is the source of many outbreaks of foodborne disease.  Currently, in the Shigella outbreak linked to a Subway restaurant in Lombard, Illinois, sick foodhandlers are believed to have been the cause of the outbreak.  As in the Lombard Subway outbreak, when sick foodhandlers are, in fact, the cause of an outbreak, the results can be widespread contamination of many different foods, leading to many illnesses.

On March 5 2010, the DuPage County Health Department announced that it was:

investigating the cause of a cluster of gastrointestinal illnesses primarily among customers of a Subway restaurant located at 1009 E. Roosevelt Road in Lombard. Restaurant ownership and corporate representatives have been cooperating with health officials, and the Lombard restaurant has been closed pending further results of the investigation.  It has been determined that some of the illnesses were caused by shigellosis, an infectious disease caused by a group of bacteria called Shigella. The investigation is ongoing and the health department is working closely with the Illinois Department of Public Health toward control and prevention of disease transmission.  As of the afternoon of March 4, the health department has received multiple reports of illness possibly associated with food consumption from this Subway location. To date, eight cases of shigellosis have been laboratory-confirmed.  Four cases have been hospitalized, with at least one case discharged and recovering at home.

The outbreak has since grown to include at least 113 confirmed illnesses.  Likely, this number only scratches the surface when it comes to counting all outbreak victims.  The number is more likely upwards of 200 to 300, if not more.

The Lombard Subway outbreak is reminiscent of another major Chicago-area outbreak.  In June and July 2003, The Lake County Health Department concluded its investigation into a Salmonella outbreak at a Chili’s restaurant located in Vernon Hills, Illinois.  By the end of the investigation, Lake County had received over 300 reports of illness from patrons of the restaurant; of those, 141 people tested positive for Salmonella javiana, which was the outbreak serotype.  In its preliminary report on the cause of the outbreak, Lake County found that restaurant employees had used poor sanitation and food handling practices, including operating without hot water for an entire day, and operating without any running water whatsoever for the lunch rush on another day.  More importantly–at least to the point of this article–Lake County stated that 28 Chili’s employees had tested positive for Salmonella.

Time will tell exactly how egregious the errors were at the Lombard Subway.  Certainly, the outbreak included the “perfect storm” of dangerous circumstances:  sick foodhandlers having contact with lots of sandwich ingredients that would not be cooked, or subjected to any other measure intended to kill harmful bacteria.  The unfortunate result in both the Lombard Subway outbreak and the Vernon Hills Chili’s outbreak was likely millions of dollars in medical costs, lost wages, and other incidental expenses to outbreak victims dealing with severe illness.

In outbreak litigation, we rarely encounter the argument that the defendant didn’t know better.  We certainly didn’t hear or entertain that argument in litigation over the Chili’s outbreak, and we likely won’t see it in the Subway outbreak either.  The reason, of course, is that the State of Illinois, and likely every other state in the country, speaks very clearly on the issue of employees who work while ill.  ILCS Section 750.500(a) states unequivocally:

“No person, while affected with a disease in a communicable form that can be transmitted by foods or who is a carrier of organisms that cause such a disease or while afflicted with a boil, or infected wound, or an acute respiratory infection, shall work in a food service establishment in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons.”

One thing that restaurants can do to guard against foodhandler-caused outbreaks is to have a sick leave policy.  The policy must not only forbid working while ill with any symptoms of gastrointestinal illness or influenza, but also provide for compensation to employees who elect to do the right thing and stay away from work while ill.

Unfortunately, these outbreaks are evidence that restaurants are not getting the message about sick employees–even large operations like Chili’s and Subway who undoubtedly have heavy-handed franchise agreements about what individual locations can and cannot do.  In the wake of the H1N1 scare, an interview occurred on Chicago Public Radio that is right on point . . . and also a little concerning.  The following is a selection of a few short, highly relevant comments from the interview:

HILL: ‘I’m here in the middle of busy food court. It’s lunch time. People all around me are eating their fried chicken, burritos, hamburgers, pretty much anything you can name. I don’t know the specific situations of the people who work here, who make all this food, but I know a ton of people in the food industry don’t get paid sick days.’

LAKIN: ‘I’ve had lots of different jobs, as a line cook, as a sous chef, as an executive chef.’  That’s Eddie Lakin. He counts 15 years in the food service business.

LAKIN: ‘I’ve never had paid sick time, even as a corporate employee, even as a salaried person with paid vacation days; I’ve never had a job with a sick day or a personal day.’

The Institute for Women’s Policy Research–an advocacy group–looked at job benefits nationally. It found as many as 85-percent of food service workers don’t have paid sick days–the worst showing for any group. By comparison, ONLY about 16 percent of people in the legal profession don’t get paid when they call in.

Eddie Lakin says there’ve been plenty of times where he and his restaurant co-workers, have gone into work sick. Part of it, he says, is an unwritten rule in professional kitchens.

LAKIN: ‘You don’t call in sick unless you are too sick to stand up.’  Lakin says some workers, especially those who get paid by the hour, come in because they need the money. Others don’t want to give the boss a reason to think they aren’t committed to the job, which isn’t a bad instinct. Dr Tom Smith is with the National Opinion Research Center at the University of Chicago.

SMITH: ‘We found that one out of every six workers have actually been fired, demoted or otherwise punished for taking time off because they weren’t covered by paid sick days.’

According to Smith’s research, which looks at workers broadly not just the food industry, people without paid sick days are more likely to go to work when they feel like crap. Sixty-eight percent of people without paid sick days have gone in with a contagious illness like the flu. The recession and tenuous labor market add to the pressure.”

Food for thought for any restaurants that want to avoid losing everything in a major outbreak of foodborne disease.