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 headlines, they actually provide insight for restaurants and other food-related businesses on the importance of proper hiring and employee training. Employers should take the information learned from these recent cases and use it as a lesson on the significance of complying with federal, state, and local food safety regulations.
Spitting in Food
Oklahoma resident Jannica Church visited a drive-thru Arby’s on March 28 to get food for herself and her family. However, shortly after eating the food, she tested positive for Type 1 of the herpes simplex virus (HSV-1), which is a highly contagious virus spread by oral contact. She and the rest of her family then sued 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, spread the virus to her by spitting in the food she ordered from Arby’s. On May 4, Hendricks was arrested by local authorities and charged with poisoning food or medicine with the 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 family also filed suit against Arby’s itself in Oklahoma. The family alleges 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 case yet, the suit brings important attention to the possible liability employers can face for even just one of their employee’s negligent actions.
Outbreak at Taco Bell is Different
Church’s case isn’t the only food safety story making news headlines lately. A recent outbreak of cyclosporiasis (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 cyclosporiasis 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, there have been no suits brought against Taco Bell for its role in the cyclosporiasis outbreak. One might wonder why this is, especially given the large number of people infected with cyclosporiasis compared with just one individual being infected with HSV-1. Taking a closer look at these two cases helps us get to the bottom of it.
Although 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 because it didn’t actually originate at a Taco Bell restaurant. Taco Bell, like many well-known food chains, imports most of its ingredients from outside sources. For example, its lettuce is pre-packaged and delivered from Taylor Farms, one of the places currently suspected as being the originator of the outbreak. While Taco Bell employees unpackage the lettuce, prepare it, and serve it, there was no way they could have known about or prevented cyclosporiasis from spreading—that’s the responsibility of their food providers.
On the other hand, the Arby’s restaurant that served Church her food had a more direct role to play in her development of HSV-1. Hendricks, while knowing she had an HSV-1 outbreak, spat in Church’s food, directly leading to the latter’s infection. Because it was Arby’s responsibility 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 aren’t unusual in the food industry. Suits filed 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 You Do to Protect Your Business?
Employers that handle, prepare, or serve food must comply with federal, state, and local food safety regulations, including maintaining proper hygiene, preventing contamination, and ensuring 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, you 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 you can do to follow the OSHA guidelines is implement strong food safety procedures and ensure 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 you can implement is Food Defense in 15, which was developed by the Food Protection and Defense Institute at the University of Minnesota. You can access this program through the Zosi Learning website. The 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’s further recommended that, following participation in any training programs, employees be provided with concrete examples of activity types, potential food adulteration threats, and mitigation strategies to practice what they’ve learned. Finally, it’s also paramount to teach employees that they have an important responsibility to watch their environment and report issues and suspicious activity.
If You’re Sick, Stay Home!
In addition to training employees on the importance of food safety, it’s also important to properly manage any workers who might be sick. If a contagious employee serves food or comes to the workplace, the employee could infect other individuals. If the employee knew they were sick during their shift, both they and the company they work for could be held liable for infecting others.
Luckily, the Centers for Disease Control and Prevention (CDC) has policies for sick employees posted on its website that are easy 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’re sick, including which symptoms should keep them from working. Furthermore, the CDC recommends that you create schedules that ease pressure for workers to complete work when they’re sick. Following these guidelines can further prevent an outbreak that starts in a restaurant and help protect companies from possible liability.
The CDC also recommends that individuals stay home if they develop certain diseases, including:
- Respiratory illnesses (e.g., influenza, COVID-19, the common cold);
- Gastrointestinal bugs (e.g., norovirus, gastroenteritis); and
- Contagious infections (e.g., strep throat, pink eye).
Bottom Line
You should ensure all employees complete food safety training before working with food. Properly training workers and implementing strong food safety procedures demonstrate that you’ve taken proactive steps to educate your 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 an employee spits in someone’s food.
Jacob M. Monty is a partner with Monty & Ramirez LLP in Houston and can be reached at jmonty@montyramirezlaw.com.