The restaurant chain has on-call nurses who validate that employees who call in sick aren’t just hungover, but is it really an effective way to improve food safety?

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In an effort to improve food safety, Chipotle has on-call nurses available to validate if employees who call in sick really are or just hungover. Getty Images

People have certain rights when it comes to their health.

Workers have the right to privacy regarding what they disclose to their employers about their health, so long as it doesn’t directly affect their ability to do their job.

Of course, the precise definition of that varies, especially when it comes to the nature of the work an employee performs.

But people also have the right to not get food poisoning when eating out at a restaurant, so it’s important that food service employees aren’t working while having communicable diseases.

So was the fabled and historical case of “Typhoid Mary,” a food service worker who was the center of a typhoid outbreak in New York City in the early 1900s.

She was just a carrier of the bacteria, never showing symptoms herself. But she admitted to health officials that she never washed her hands. Still, she’s believed to have infected 51 people, three of whom ultimately died.

Now, one mainstream eatery appears to be trying to avoid keeping another Typhoid Mary–like employee among its ranks.

Chipotle recently made headlines after the head of the company discussed how it’s been contracting with a healthcare provider that has nurses check if workers who call in sick are actually sick, rather than just hungover.

As Business Insider reports, Chipotle CEO Brian Niccol discussed the program at a recent conference, noting “the nurse validates that it’s not a hangover — you’re really sick — and then we pay for the day off to get healthy again.”

While being sick from a virus or too much rosé can produce the same effects — nausea, vomiting, flushed skin, etc. — it’s an important distinction if workers are handling food that customers will soon eat.

Colds and other viruses — and bacteria, too — can be passed on to customers who just wanted a burrito, while hangovers are self-contained, noninfectious ailments.

A company spokesperson says they’ve been partnering with Zero Hour Health — which describes itself as “experienced professionals focused on preventing and responding to emerging health crises” — since 2008. The company also lists other corporate clients, like Outback Steakhouse, Jamba Juice, and Texas Roadhouse.

Kerry Bridges, Chipotle’s vice president of food safety, said in a statement the company ensures all employees are healthy to prepare and serve food. When an employee reports “certain serious symptoms” to their manager, nurses from Zero Hour Health follow up with those employees to understand their illness.

“Not all ill employees talk to a nurse, but all Chipotle employees receive paid sick leave from their first day of employment to use when they are not feeling well,” Bridges’ statement read.

Chipotle has good cause to want to know if their employees are hungover rather than carrying a virus that can make its customers sick.

A highly contagious outbreak of norovirus — the leading cause of illness and contaminated food outbreaks in the United States — spread among Chipotle customers in Boston in 2016 and again in Virginia in 2017.

Norovirus is of particular concern in the food industry as it’s transmitted by an infected person, contaminated food or water, or by touching contaminated surfaces. It kills an estimated 200,000 people worldwide each year.

While the paid sick leave is good for employees, others wonder if the healthcare provided from company-paid healthcare officials are ultimately a good deal for those workers.

James Cobb, RN, MSN, an emergency department nurse, says it’s good Chipotle is trying to prevent outbreaks of foodborne illnesses by giving their employees the day off when they’re sick.

“Food service jobs don’t always come with sick leave,” he said, so it’s “a win” for the company, its current and potential employees, and its customers.

“Nobody wants to eat a burrito that makes them sick,” Cobb added.

But since the follow-up is over the phone and doesn’t involve direct physical examinations and blood tests, Cobb says there’s no way to tell whether someone is just hungover or not.

“It’s just not possible,” he said. “Groggy people sound like groggy people, no matter the cause of the grogginess.”

Health and legal experts argue Chipotle’s policy is at the core of the balance between the confidentiality of a person’s medical records versus the company’s duties to serve customers food free of pathogens that could make them sick.

Federal law, specifically the Health Insurance Portability and Accountability Act, or HIPAA, ensures the “protection and confidential handling of protected health information” since it was passed in 1996.

Valerie King, a certified family nurse practitioner and a clinical associate professor at UMass Lowell Solomont School of Nursing, says one important factor is what information is communicated back to the employer.

Some employees who could be having flu-like symptoms, from conditions like Crohn’s disease or even cancer treatments, may not feel comfortable disclosing that kind of information to their managers for a variety of reasons.

“Food safety is really important, but who has the information about the patient? It’s a slippery slope,” King told Healthline. “It’s not a right of Chipotle to know if I have any illness, only if I’m fit for duty.”

Ultimately, King says, the onus of food safety is on the employer.

That should include good employee education on appropriate food handling and providing health insurance to employees, which would include flu shots and other services to prevent the spread of any foodborne illnesses. And it needs to be consistent across the company.

“Unless you have a doctor screening every employee, then how effective is it?” King said.

Attorney John S. Gannon, a partner at the labor and employment law firm Skoler Abbott in Massachusetts, says policies like Chipotle’s could be effective if they’re truly meant to address food safety.

But, he says, employers asking too many questions about the reasons for using sick time could violate state laws and other regulations, and lead to a claim alleging the employer interfered with an employee’s right to use protected time off.

“Typically, an employer can ask a general question about the reason for sick time use,” Gannon told Healthline.

“However, prying too much into why the employee needs a sick day, and questioning whether the employee is really ‘sick,’ can be a problem. Also, overly rigid questioning of employee sick time use could lead to poor worker morale and higher turnover,” he said.

These are all important considerations for other employers, large and small, who might want to enact similar policies.

But due to federal laws, as well as other state laws and local ordinances, employers have to walk a tightrope of legislation designed to protect a person’s privacy.

Edith A. Pearce, founder of The Pearce Law Firm, PC, says that besides protections afforded under HIPAA, the Americans with Disabilities Act (ADA) prohibits certain actions from employers.

That includes seeking a diagnosis or disclosure of a medical condition in a doctor’s note in its sick leave policy.

“For example, if the nurse hired by Chipotle inquires about an employee’s health to determine whether the employee is an individual with a disability, or about the nature or severity of the disability, is unlawful, unless the examination or inquiry is related to the job and consistent with business necessity,” Pearce told Healthline.

Under HIPAA, an employer — or a nurse hired by the employer — can’t directly contact the employee’s doctor or healthcare provider or discuss that employee’s medical condition, Pearce says.

“Any inquiry by the employer should only be related to whether the employee can perform his or her job,” she said.

“Employers can ask questions that help them to determine if they need to make reasonable adjustments. This might include an adapted working environment or additional flexibility. However, questions beyond this purpose might violate the ADA,” Pearce said.