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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:
Enterohemorrhagic Escherichia coli
Enterotoxigenic Escherichia coli
Vibrio cholerae 01
See 62 Fed. Reg. 49518 (Sept. 22, 1997).
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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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- Spring '08