10 Things Hawai`i Employers Need to Know About the Hepatitis A Outbreak

As of August 3, 2016, the State of Hawai’i Department of Health (“DOH”) has confirmed 135 cases of Hepatitis A across the Hawaiian Islands, including seven food service workers, in the largest outbreak in decades.

Although the DOH has yet to identify the source of the outbreak and the strain appears to be unique, there is growing concern that it is being transmitted through food.

Employers across the services industries, specifically those involved in food service, should take proactive steps to monitor their employees to help ameliorate the outbreak and to avoid any potential liabilities associated with poor food safety practices.

There are 10 things these employers need to know, including the risks of screening employees for or requiring them to be vaccinated for Hepatitis A, the importance of developing comprehensive food sanitation/hygiene policies and training, the need to follow strict reporting policies, removing employees from food service who report a diagnosis, exposure to or symptoms of Hepatitis A, and potentially providing reasonable accommodation to some employees diagnosed with or exposed to Hepatitis A.

1. Hepatitis A Is a Highly Communicable Disease.

Hepatitis A is a highly communicable, infectious liver disease caused by the Hepatitis A virus (“HAV”), which causes inflammation of the liver and may last between 1-2 weeks after onset. The incubation period for Hepatitis A (the time between initial contact with HAV and the onset of the disease) is 15 to 50 days.

A Hepatitis A diagnosis must be confirmed by a positive HAV antibody test. When an individual becomes infected with HAV, the body creates antibodies to protect itself from the virus. A blood test measures these antibodies.

Acute Hepatitis A is diagnosed when there is 1) discrete onset of symptoms and 2) jaundice or elevated serum aminotransferase levels.

Hepatitis A does not cause long-term (chronic) liver damage and is usually not fatal.

2. Hepatitis A Is Symptomatic.

The majority of infected individuals are symptomatic. When symptoms present, they usually occur abruptly and can include any of the following:

• Vomiting;
• Diarrhea;
• Jaundice;
• Sore throat and Fever;
• Fatigue;
• Loss of appetite;
• Nausea;
• Abdominal pain;
• Dark urine;
• Clay-colored bowel movements; and
• Joint pain.

Infected individuals can spread the virus from 2 weeks before the symptoms begin to 2 weeks after symptoms end. However, an infected individual who has no symptoms can still spread the virus.

3. Hepatitis A Can Be Spread Through Contaminated Food.

Hepatitis A resides in an infected individual’s feces. Hepatitis A is spread in part through:

• Eating/drinking contaminated food or water:
o When an infected individual does not wash his or her hands properly after going to the bathroom and touches food.

4. Employers Can, But Should Not, Mandate That Employees Who Handle Food Be Vaccinated for Hepatitis A.

A Hepatitis A vaccine is available and is highly effective in preventing infection.
However, the CDC has not required employer-mandated vaccines for employees engaged in food service for many reasons:

• There is no evidence that food service employees are at any greater risk of acquiring Hepatitis A than are people in other occupations;
• Only 2-3 percent of all Hepatitis A cases are acquired through restaurant food;
• Employee turnover in some segments of the food service industry is high, making it impractical to vaccinate staff (the Hepatitis A vaccine is administered via 2 doses administered over 6 months); and
• Emphasis on careful hand washing, use of disposable gloves and not working when ill are measures that can greatly minimize the risk of spreading Hepatitis A and a number of other infections.

Having said that, employers are free to condition employment on employee vaccination, but there are legal risks in doing so.

Neither Title VII of the Civil Rights Act (“Title VII”), the American Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), nor applicable Occupational Safety and Health Laws prevent an employer from mandating that employees be vaccinated as long as it is 1) job-related, and 2) of business necessity. For example, the EEOC has long recognized that health services employers may need to require certain employees to be vaccinated, due to the nature of their jobs and the potential likelihood of spreading communicable diseases to vulnerable populations.

However, employers should not do so, because doing so raises other potential legal pitfalls, including:

• Under the National Labor Relations Act and Taft-Hartley, unionized employers must collectively bargain with the union to enforce any mandated employee vaccination regime, as it implicates the terms and conditions of employment.
• Under ADA, it is unclear if employer-mandated vaccinations for food services employees would qualify as permitted due to 1) job-relatedness, and 2) business necessity. Neither the CDC (nor any other health agency) has recommended that employers mandate food employee vaccinations, due to the low risk of transmission and the impracticability of vaccinating all due to turnover. Employers may have difficulty showing that required vaccinations for food service employees for Hepatitis A would therefore qualify as job-related and of business necessity.
• Under Title VII, according to the Equal Employment Opportunity Commission (“EEOC”), employer-mandated vaccination may discriminate against those on the basis of religion. Some employees may have sincerely held religious beliefs which prevent them from getting vaccinated, and they may require reasonable accommodations if no undue burden presents.
• Under ADA, according to EEOC, employer-mandated vaccination may discriminate against those with disabilities. Some employees may have disabilities which prevent vaccination, including immuno-compromising medical conditions and allergies. These employees may require reasonable accommodation, if no undue burdens present.
• Under the Pregnancy Discrimination Act of Title VII and the ADA, according to EEOC, employer-mandated employee vaccination may discriminate against some employees on the basis of pregnancy. Pregnant employees may be unable to get vaccinated and reasonable accommodations may be needed if undue burdens do not present.
• Under ADA, employers must strictly maintain the confidence of employee vaccination records and must maintain a separate locked personnel file containing such records.

5. Employers Should Not Screen Employees for Hepatitis A or Ask Employees If They Have Been Vaccinated for Hepatitis A.

Because the ADA prohibits employer-mandated medical tests, if they are not job-related and of business necessity, and such testing may reveal sensitive medical information, employers should avoid screening employees for Hepatitis A. Again, because the CDC has indicated that the risk of food worker transmission is low and it is impractical to vaccinate all employees, an employer may have difficulty showing that such testing is job related of business necessity, and such testing could likely implicate the presence of other related medical conditions such as immune-compromising illnesses. Employers should work with DOH, and consult counsel, on a case by case basis if there is an outbreak, to assess whether there are risks associated with testing all employees, and whether doing so is required.

In addition, for all of the aforementioned reasons, employers should not ask employees if they have been vaccinated for Hepatitis A.

6. Employers Should Adopt Comprehensive Food Sanitation/Hygiene Policies & Training/Education Programs for Supervisors & Employees, Which Address Hepatitis A.

The Food and Drug Administration (“FDA”) has adopted a model Food Safety Code, which has been adopted by all 50 states in some form, including Hawai’i. The Hawai’i Food Safety Code mandates that all employers in the services industry, involved in food handling, adhere to strict food sanitation/hygiene protocols, including how to handle employees infected or exposed to Hepatitis A.

Additionally, the FDA has developed an Employee Health and Personal Hygiene Handbook to encourage food safety practices that can help prevent food employees from spreading viruses to food. The Handbook is accessible here.

Incorporating the Hawai’i Food Safety Code, all employers should adopt comprehensive policies related to food sanitation/hygiene and Hepatitis A, that include: (a) establishing a reporting mechanism for ill food employees, (b) restricting or excluding ill food employees from working with food; (c) using proper handwashing procedures; and (d) eliminating bare hand contact with foods that are ready-to-eat (“RTE”).

As well, all employers should implement a comprehensive training/education program for all supervisors/employees engaged in food handling.

Employer-mandated training for both supervisors and employees should raise awareness about the potential for transmission of foodborne illnesses and should emphasize personal hygiene practices, including wearing appropriate protective gear and careful hand washing, to prevent transmission. Supervisors and workers should also be informed about potential risks associated with Hepatitis A and the risk of transmission involved with food handling.

7. Employers Should Ensure Proper Food Sanitation/Hygiene.

The prevention of Hepatitis A is based on good food sanitation/hygiene; the Hawai’i Food Safety Code prescribes appropriate food sanitation/hygiene protocols which must be adhered to. Based on the Hawai’i Food Safety Code, some suggestions for employers include:

To prevent the spread of Hepatitis A:

• Employees should never work while they are sick with Hepatitis A or sick with any symptoms of Hepatitis A.
• Employees should never touch RTE foods with bare hands and should carefully wash their hands after using the bathroom.
• Employees should wear protective gear.
• Employees should use proper handwashing to reduce the spread of fecal-oral pathogens from the hands of a food employee to foods. Effective handwashing includes scrubbing, rinsing, and complete drying of hands and is essential for minimizing the likelihood of cross-contamination. The fingernails and surrounding areas are often the most contaminated parts of the hand and are also the most difficult part of the hand to get clean.
• Employees should enforce “No Bare Hand Contact”-the practice of preventing direct contact with bare hands while handling RTE foods. This practice provides a secondary protection against the contamination of foods that do not require further cooking with microbial pathogens from the hands of ill food employees.

8. Employers Must Follow Strict Reporting Requirements. Employers Must Require Self-Reporting by Employees Infected or Exposed to Hepatitis A; Employers Must Report Employees Diagnosed with Hepatitis A to DOH.

Under the Hawai’i Food Safety Code, all employers must require that employees report any adverse health condition that relates to diseases that are transmissible through food.
Employees should report in a manner that allows the employer to reduce the risk of foodborne disease transmission, including providing the date of the onset of symptoms or an illness, or a diagnosis of an illness, or a diagnosis without symptoms, if the employee has any of the following:

• Diagnosis of Hepatitis A;
• Exposure to Hepatitis A, including:
o Any employee who may be exposed to or who is the suspected source of a confirmed Hepatitis A outbreak, because the employee consumed/prepared food in the outbreak, or consumed food prepared by a person infected with Hepatitis A or ill with symptoms of Hepatitis A; or
o Any employee who was exposed by attending or working in a setting where there is a confirmed Hepatitis A outbreak; or
o Any employee living in a household, and who has knowledge about, an individual who has attended or worked in a setting where there in a confirmed Hepatitis A outbreak.
• Symptoms of Hepatitis A, including:
o Sore throat with fever; or
o Vomiting; or
o Diarrhea; or
o Jaundice

NOTE: Both ADA and the Genetic Information Nondiscrimination Act (“GINA”) may be implicated where employers require employees to report personal health information, related to diagnosis or exposure to Hepatitis A, specifically involving household members. Employers must ensure that they strictly maintain the confidence of employee health information and must maintain a separate locked personnel file if such health information is documented.

Employers must confidentially report any employee’s Hepatitis A diagnosis directly to the DOH.

9. Employers Must Exclude Any Employee from Food Service Who Reports Either a Diagnosis, Exposure to, or Symptoms of Hepatitis A.

Employers must exclude any employee from food service who reports either a diagnosis, exposure to, or symptoms of Hepatitis A (applicable symptoms include those identified in #8).
Employers may only reinstate excluded employees under the following conditions:

• An employee with a diagnosis of Hepatitis A may be reinstated if:
o They are immune due to a previous Hepatitis A infection, or
o They are immune due to a previous Hepatitis A vaccination, or
o They are immune due to IgG administration.
• An employee exposed to Hepatitis A may be reinstated if:
o Any of the above apply, or
o 30 days have passed since exposure.
• An employee showing applicable symptoms of Hepatitis A, may be reinstated if:
o They have approval from DOH;
o They present a medical certificate indicating they do not have Hepatitis A, or
o They are asymptomatic for at least 24-48 hours (depending on the specific symptoms).

10. Employers May Need to Accommodate Employees Diagnosed or Exposed to Hepatitis A.

The ADA does not contain a list of medical conditions that constitute disabilities. Instead, the ADA has a general definition of disability that each individual must meet. An individual has a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or is regarded as having an impairment.

Therefore, some individuals with Hepatitis A will have a disability under the ADA and some will not.

An employer must engage any employee diagnosed with or exposed to Hepatitis A in an interactive process, to assess if s/he has a disability which may require reasonable accommodations for him or her to perform the essential functions of their job (assuming no undue burdens present).

Things employers should consider include:

• What limitations is the employee with Hepatitis A experiencing?
• How do these limitations affect the employee and the employee’s job performance?
• What specific job tasks are problematic as a result of these limitations?
• What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
• Has the employee with hepatitis been consulted regarding possible accommodations?
• Once accommodations are in place, would it be useful to meet with the employee with hepatitis to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
• Do supervisory personnel and employees need training regarding hepatitis?

If the employer needs to provide the employee reasonable accommodations, the employer may consider the following:

• Temporary Job Duties: Employees excluded from food service may temporarily be moved to another job, if they are able to work, until they can be reinstated.
• Flexible leave. Consider time off of work as an accommodation if, for example, an individual is experiencing fatigue or needs to attend doctor appointments. The Family and Medical Leave Act (“FMLA”) likely would apply, and the employer should work with the employee to ensure their rights to take such leave are protected. Depending on the employer’s policy, an employer may allow the employee to use existing sick or annual leave. If all other leave has been exhausted, provide further unpaid leave.
• Modified schedule. Types of accommodations may include adjusting the time of arrival or departure; provide intermittent breaks throughout the day; shorten the workday and extend the workweek; or provide a part-time schedule.
• Consider access to the facility (ramps, parking, etc.).
• Frequent rest breaks.
• Reduce or eliminate strenuous activity.
• Flexibility to sit or stand (adjustable workstation).
• Provide a rest area.
• Job sharing.