Hepatitis Outbreaks Pose Liability Risks for Restaurants

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By Steven M. Sellers

Restaurant workers in Michigan recently diagnosed with Hepatitis A signal an expansion of the multi-state outbreak, and potential liability, to the food industry, food safety lawyers tell Bloomberg Law.

The nearly simultaneous outbreaks of the potentially fatal liver disease in California, Michigan, and Utah should prompt restaurants in severely affected communities to offer protective vaccinations for their workers, according to the lawyers.

Eateries that fail to do so, they say, could be increasing their liability exposure significantly.

The current multi-state outbreak—the largest in decades—has sickened a total of 1,346 people in the three states; 965 of those were sent to the hospital and 41 died, according to the U.S. Centers for Disease Control and Prevention.

Outside of its recent spread to restaurant workers, the highly contagious virus has primarily affected the homeless, men who have sex with men, and illicit drug users, public health officials say.

Recent reports also reveal the virus has reached other states from southern California, where the outbreak became so large that Governor Jerry Brown declared a state of emergency in October.

Hepatitis A is a highly contagious viral liver disease usually transmitted by ingestion of even microscopic amounts of fecal matter, through contact with an infected person or consumption of contaminated objects, food, or drinks, according to the CDC.

Employee immunizations minimize the risk of an outbreak where restaurants can be held strictly liable, Ryan Osterholm, a plaintiff lawyer with Pritzker Hageman in Minneapolis, told Bloomberg Law Dec. 15.

“Absolutely, food handlers should be vaccinated,” said Osterholm, who focuses on foodborne illness litigation. “It is bordering on the absurd we aren’t there from both a public policy and a business standpoint” because the outbreaks “are only going to be more frequent and larger.”

Seattle lawyer William Marler, of Marler Clark, who also represents plaintiffs in foodborne illness cases, said the current outbreak’s severity factors into the liability equation.

“A restaurant exposes itself to punitive damages for ignoring an active outbreak, as opposed to another city where there isn’t an active outbreak,” Marler said Dec. 14.

Osterholm agreed. “I think a judge or jury would look long and hard about a deliberate disregard for the safety of customers,” he said.

Questions of restaurant liability, however, may be more easily established when the source of Hepatitis A is clearly food-based, as in cases last year linked to outbreaks traced to imported strawberries and raw scallops.

Here, the spread of hepatitis arose from poor sanitation among the homeless, as well as a mobile populace that can easily spread the disease, Jaydee Hanson, a senior policy analyst for the nonprofit Washington-based Center for Food Safety, said Dec. 15.

Immunizing food workers is the goal but not a panacea, Hanson said. “If a customer has Hepatitis A and contaminates food surfaces you can still have an outbreak even if all the workers are immunized.”

Exempting Food Workers?

The CDC requires Hepatitis A vaccinations for health workers but not food workers, who it says “are not at increased risk for hepatitis A because of their occupation.”

The agency does suggest vaccination of food workers in areas with community-wide outbreaks “where state and local health authorities or private employers determine that such vaccination is cost-effective.”

Food industry sources and their lawyers contend that broad-based vaccination programs for restaurants that often employ transient workers can be both costly and difficult to implement effectively.

But Marler said, “If the cost of giving the vaccinations is a concern, compare that to the costs for a kid who needs a liver transplant.”

A single infected food worker can potentially spread Hepatitis A to hundreds of other people, requiring costly and labor-intensive public health investigations, said Michele Jay-Russell, a research microbiologist with the Western Center for Food Safety of the University of California, Davis.

“Vaccination of food handlers is a good investment to protect the public health and food industry,” particularly in outbreak communities, Jay-Russell said Dec. 16.

California, Michigan Eateries Hit

In Michigan, where at least 583 people have been sickened, a food worker at a Monroe, Mich., outlet of Tim Horton’s Inc. was diagnosed with the disease in December.

In response, the Monroe County Health Department encouraged area eateries to have their workers vaccinated at clinics, health department spokeswoman Kim Comerzan said Dec. 15.

“A number of local food establishments are sending their workers to us and many are requiring it at this point,” Comerzan said in an email.

A request for comment sent Dec. 14 to Tim Horton’s Inc. didn’t receive a response.

Two other food workers—one at a pub in Westland, Mich., and another at a pizza shop in Detroit—were also diagnosed with the virus in December, prompting similar warnings by county health officials to restaurant patrons.

In the largest of the current outbreaks, California reported 672 Hepatitis A cases, including October exposures to infected food workers at a popular restaurant in Pacific Beach.

The California Restaurant Association didn’t respond to two requests for comment.

In Utah, where at least 91 infections have been identified—none in food service workers—state health officials said several cases were genetically matched to outbreaks in Arizona and California, according to a website of Utah’s Department of Health.

At least two of those cases are likely Salt Lake City residents who visited a San Diego venue in September only to return with Hepatitis A, according to the San Diego Union Tribune.

Signs of Spreading

The outbreak has spread to other states, triggering similar liability risks for restaurants as the infections increase.

Kentucky declared a statewide Hepatitis A outbreak in November based on 51 new cases this year and genetic matching to the virus in the California and Utah outbreaks.

Colorado reported 65 Hepatitis A cases as of Dec. 15, more than double last year’s total, and at least two cases were linked to the California outbreak.

Maine reported a total of six new cases for the year as of Dec. 11—but four in the last three months—in what its health department said was an “unusual” increase for the time frame.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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