CourtCases2010

A direct threat is defined as a significant risk to

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Unformatted text preview: ation to an infectious dose before they will cause disease in consumers. Preventing food contact by persons who have an acute diarrheal illness will decrease the risk of transmitting the following pathogens: Campylobacter jejuni Entamoeba histolytica Enterohemorrhagic Escherichia coli Enterotoxigenic Escherichia coli Giardia lamblia Nontyphoidal Salmonella Rotavirus Taenia solium Vibrio cholerae 01 Yersinia enterocolitica See 62 Fed. Reg. 49518 (Sept. 22, 1997). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**36] II. Direct Threat The Chapman amendment would have authorized employers to reassign to a non-foodhandling position any food-handling employee who had a communicable or infectious disease. The employer could do so without relying on any medical evidence that the employee in fact posed a direct threat to co-workers or customers. Similarly, in this case, the majority holds that Prevo's Market could immediately reassign Sharp to a non-food-handling position without any reference to any medical evidence that Sharp in fact posed a direct threat to his co-workers or customers. The majority further holds that after reassignment, Prevo's could then require Sharp to submit to a medical examination in order to confirm that he in fact posed a direct threat to others. I disagree with both of the majority's holdings for two reasons. First, I believe that an employer must have some relevant objective medical evidence that a food-handling employee poses a direct threat to others prior to reassigning that employee to a non-food-handling position. See H.R. Rep. No. 101-485 (III), at 45 (1990) ("The purpose of creating the 'direct threat' standard is to eliminate exclusions which are [**37] not based on objective evidence about the individual involved."). Second, an employer can conduct the direct-threat analysis based on objective medical evidence without requiring the employee to submit to a medical examination. A. Reassignment 227 With respect to reassignment, in Leckelt v....
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