Are Your Workers Making Customers Sick?

Chipotle outbreaks renew the debate over paid sick leave

By Dana Wilkie Mar 3, 2016
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In the restaurant industry—where paid sick leave is a luxury many establishments say they can’t afford—it’s not uncommon for minimum-wage-earning hosts, servers and kitchen staff to show up for work even when they’re ill.

But as last year’s outbreaks of norovirus and E. coli at Chipotle restaurants demonstrated, sick workers can lead to sick customers, which can lead to a damaged reputation, lost business, potential liability and even criminal charges.

Chipotle—which in February said the massive outbreaks affecting its stores last year were probably caused by its own sick employees—has since announced it will expand paid sick leave for employees from two days a year to five.

But at many other restaurants around the nation—where profit margins are slim, part-time workers abound and turnover is high—financial restraints make this sort of leave a tricky proposition, say legal and food-industry experts.

“This is a very difficult issue with no ready solution due to the economic realities of the industry,” said Jim Ryan, head of the commercial litigation department with Cullen and Dykman in Garden City, N.Y. “In a perfect world, all employers would provide this benefit for obvious reasons. In fact, I’m sure most restaurants definitely want to provide it. The economic reality remains that many simply cannot, and therefore necessarily take a business risk because they have no economic alternative.”

Few Have Leave, Many Go in Sick

Nationwide, only two-thirds of American workers have access to paid sick leave, according to the Bureau of Labor Statistics. In the restaurant industry it is far lower: An estimated 9 out of 10 restaurant workers don’t receive paid sick days, according to the Restaurant Opportunities Center United (ROC), a worker advocacy group. ROC has said that restaurant chains lobby through the National Restaurant Association against paid-sick-leave legislation.

That means restaurant workers, often already making low wages, feel they can’t afford to take a day off when they’re sick. In a nationwide survey of 4,323 restaurant workers conducted by ROC, 2 out of 3 workers reported cooking, preparing or serving food while sick.

Infected food workers cause about 70 percent of reported norovirus outbreaks from contaminated food, according to the U.S. Centers for Disease Control and Prevention. Each year, norovirus costs about $2 billion in the United States in health care expenses and lost productivity as a result of foodborne illness, according to the agency.

All told, more than 500 people reported being sick after eating in a Chipotle restaurant in the last half of 2015, according to the website Food Safety News. The outbreaks dragged down sales for the popular Mexican food chain by 14.6 percent in the final three months of 2015. One of Chipotle’s California restaurants is now the target of a federal grand jury criminal investigation after 207 people, including 18 Chipotle employees, reported falling ill after eating at one of the chain’s restaurants in Simi Valley last August.

High-End vs. Low-End Restaurants 

Higher-end restaurants with employees who’ve made working in the hospitality industry into a career are more likely to want to retain experienced workers, and thus more likely to offer sick leave—with or without pay, said Terri L. Rhodes, CEO of the San Diego-based Disability Management Employer Coalition.

The restaurant clients of attorney Ann Marie Zaletel, a partner in the Los Angeles office of Seyfarth Shaw, tend to fall into this category. They are large, often national chain restaurants. In her experience, she said, these restaurants aren’t opposed to offering paid sick leave. In fact, she said, the majority of them do offer paid sick leave, or some form of paid time off, even where they’re not legally required to do so.

Still, her clients do tend to object to “the very large number of state and municipal paid-sick-leave ordinances, which are not at all consistent in terms of amount of sick leave, reasons for use, use increments, carry over, et cetera,” she said. “The large number of these inconsistent state laws and municipal ordinances makes it very administratively burdensome for national employers, including restaurants, to do business.” 

On the other hand, restaurants that employ large numbers of seasonal workers or students tend to have high turnover rates, which makes it far less effective to provide a paid-sick-leave benefit, according to Rhodes. “The opportunity for abuse is likely to be much higher and not worth the very minimal potential for retention to be worth the financial and administrative burden,” Rhodes said.

In addition, Rhodes said, offering paid sick leave doesn’t guarantee that a restaurant worker will stay home when ill.

“Most sick leave programs are only three to five days,” Rhodes said. “The potential for employees to use the available time during a period that they are most contagious is not guaranteed and not necessarily going to reduce risk. Additionally, there is the issue of job security and a sense of not wanting to be seen as less of a hard worker because they take time off when not feeling 100 percent.”

Sick Leave Legislation

In September 2015, President Barack Obama signed an executive order requiring federal contractors to allow their employees to earn up to seven days of paid sick leave a year, effective in 2017. There is no other federal law obligating private-sector employers to provide workers with paid sick leave. Congress has resisted efforts to enact a law that would require paid sick leave and has left the issue primarily to the discretion of employers.

According to the Department of Labor, there are earned sick time laws in California, Connecticut, Massachusetts, Oregon and Washington, D.C. Twenty-two local jurisdictions including New York City, Pittsburgh and a few cities in New Jersey have enacted legislation or approved paid-sick-leave programs by voter referendum.

California’s Healthy Workplaces, Healthy Families Act of 2014 took effect July 1, 2015, and it’s significant for its scope: It applies to all employers, regardless of size, and to almost every employee except for four specifically-enumerated exceptions to the definition of employee in the state’s Labor Code.

But Jaime Ramón, a member of the labor and employment practice in the Dallas office of Dykema, believes that leaving sick leave to the discretion of employers “has worked out well.”

Where an employer in a restaurant setting knows that an employee is ill, especially with flu-like or similar symptoms, that employee should be asked to go home and return when he or she feels better,” he said.

But Ryan pointed out that even though “restaurants generally will, and should, direct their employees to stay home if sick … employees are generally employees [working] ‘at will’ and can be terminated for missing too much time.”

Dana Wilkie is an online editor/manager for SHRM.

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