The ADA is a federal civil rights law that protects qualified people with disabilities from discrimination in the workplace. This employment provision applies to businesses that have 15 or more employees (full and part-time). Employees with disabilities have rights under the ADA that protect them when applying for jobs and when working in the food service industry.

While there are no lists to say which disabilities are covered under the act, there is a legal test in place to help make the decision about the application of the provisions and protections offered by ADA. It is the Equal Employment Opportunity Commission (EEOC) that enforces ADA in the workplace.

The ADA protects a person with current disability or a person who has a record of a disability. Current disability is defined as:

- a medical condition or disorder (impairment),
- that substantially limits a person,
- in doing basic activities (major life activities).

ADA expects you, the employer, to hire the most qualified person for the job regardless of disability. To be qualified for a job a person with a disability must:

- meet the job requirements in terms of required education, skills, licensures, and experience
- be able to perform the essential functions or duties central to the job, with or without reasonable accommodation.

Reasonable accommodation can be in the form of a change in the job application process, in the way the job or parts of the job are performed that allow a person with disability to have equal employment opportunities. The Federal government recognizes that there are costs involved in making ADA compliant changes within the workplace and offers provisions for employers.

Through the Internal Revenue Code, many provisions in form of tax incentives are in place to help businesses make the required reasonable accommodations and be more accessible to people with disabilities. For example., the Architectural/Transportation Tax Deduction (Internal Revenue Code Section 190: Barrier Removal) allows an annual deduction of up to $15,000 for businesses of any size for costs of removing barriers for people with disabilities (ramps, curb cuts, accessible parking space, etc.,).

The ADA requires employers to provide reasonable accommodation unless to make such change would cause undue hardship. Undue hardship can constitute:

- involvement of a significant difficulty that disrupts the business,
- involvement of significant expense, or
- requirements that change the basic nature of business provided by the employer.

While as an employer you are required to follow the spirit of the law you are also required to consider the safety of the employee or their co-workers when deciding to refuse hiring or terminating a person who poses a direct threat to the health and safety to themselves or others in the workplace. Direct threat indicates significant risk and substantial harm wherein safety levels in the workplace are marginalized by provision of reasonable accommodation.

The ADA recognizes the danger to public health posed by diseases transmitted through handling of food and prefers that you follow your state, county, or local food handling laws to protect public health. The Food and Drug Administration (FDA) Food Code addresses the Big 4 pathogens:
- Salmonella Typhi
- Shigella sp.,
- Shiga toxin-producing Escherichia coli
- Hepatitis A virus

In addition, the ADA requires the Centers for Disease Control and Prevention (CDC) to publish a list of infectious and communicable diseases (including the Big 4) annually.

If an applicant or employee has an illness due to one of the diseases that are listed in the Food Code and is disabled as a result of that illness, you must follow the requirements of the ADA. However, if the applicant or employee has one of the diseases listed in the Food Code but does not have an ADA disability, the requirements of ADA do not apply.

You may exclude an employee from your food establishment if the employee is disabled by one of the diseases listed in the food code and requests reasonable accommodation after you determine that:

- there is no reasonable accommodation that can eliminate the risk of transmission, or
- reasonable accommodation will pose undue hardship on your business, and
- there is no non-food handling position that this employee is qualified for or that s/he can be reassigned to.

Our opinion here at ODO is that in your attempt to provide accessible environments for your employees you are adding the benefit of opening your business to the broader market that includes patrons with disabilities.


For further information on compliance and case scenarios that could assist you in better understanding ADA, FDA, and your role; we would like to direct you to the EEOC website at: http://eeoc.gov/facts/restaurant_guide.html