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Q&A: Frequently asked questions regarding responding to a foodborne illness

Friday, November 18, 2016  
There are many things that can go awry when a food service establishment is full of people -- from a fire or other emergency situation to a foodborne illness outbreak. In the case of a fire or emergency situation that requires evacuation of the building, the event will be immediately evident. But food poisoning can sometimes take days to manifest itself. And even that timeline depends on those who are affected to realize that their illness is caused by food and to trace it back to your restaurant.

A foodborne illness crisis can vary in severity and numbers of guests affected. In some cases, you learn that an employee has a contagious disease, such as Hepatitis A, and although no diner has reported illness, you are legally and morally obligated to contact the health department, which will assist you in notifying guests who might have been exposed.

In other cases, you might be barraged by a number of complaints, alleging that they became ill shortly after eating at your restaurant. Still, in other cases, you might receive a call or complaint from a single guest. Your contingency plan to protect guests and your business will vary depending on how severe and widespread the problem is. In any case, below are some of the steps of a sound contingency plan to prepare for such an unfortunate event. As with all legal content in this magazine, this article is for general information only. It is advisable to have an attorney who specializes in hospitality law to create your specific plan.

Are you and your staff prepared to deal with such an emergency situation at your restaurant? Perhaps even more importantly from a reputation and goodwill standpoint, have you developed a plan to deal with a foodborne illness outbreak originating from your restaurant? Any thorough analysis of how to respond to an emergency situation must also contemplate steps you should take to avoid such an emergency in the first place.

Here are some common questions – and answers – regarding managing a food safety emergency.

Should I discuss the matter with all management and staff, or just select individuals, such as the general manager and chef?

Communicate and discuss the matter to and with all management and staff, and encourage their support and cooperation. Designate key persons, typically the owner, general manager or your attorney, to field customer complaints, respond to media inquiries and work with the health department. Let your staff know if they are approached by third parties to discuss the incident, they should direct them to the designated contact persons. If feasible, you might want to enlist the help of a public relations firm to assist with media inquiries and press releases.

How should I involve the local health department?

Proactive cooperation with the health department demonstrates genuine concern and diligence, and could provide access to resources to you to identify the source of foodborne illness and lessen your liability. If health department officials contact you first, treat them as a partner. Do not attempt to evade questions or hide facts relevant to food safety issues. Health department officials do not want to shut down your business unnecessarily, but you need to work with them if you hope to maintain their assistance and support.

How do I document complaints?

Create a form on which to document all reported guest ailments. It should capture the name, address and telephone number of the complaining guests, the time and date on which they dined at your restaurant, and the nature of their complaint, including physical ailments. The form should be signed and dated by the person submitting or recording the information, and carefully filed in a confidential and secure place.

I’m not sure what to say to guests when they call the restaurant to complain? What should I say -- or not say?

When talking to complaining guests, indicate concern for their welfare and assure them that you are investigating/will investigate the matter and provide a follow-up call. You should not admit liability; however, if the health department or you have identified a food safety problem at your restaurant, you should inform the complaining guests to contact their physicians and the local health department for instructions on how and where to receive prophylactic or therapeutic treatment. (In this case, you should have contacted the health department.) How well you treat complaining customers may influence their decision to take legal action. Injured parties, who would otherwise forgive a bad outcome or accept a modest settlement, will seek legal recourse when treated indifferently or poorly by a business.

When should I contact our attorney and general commercial liability insurance representative?

Contact your restaurant's attorney and insurance company representative immediately. Your attorney can provide advice and representation initially; however, if the event is covered by your insurance policy then the insurance company will assign the matter to its attorneys.

Does our business need to conduct our own investigation if the health department is investigating the incident?

Conduct your own investigation, even if the health department is conducting its own, to determine the source of the illness. This includes inspecting the products and procedures, and interviewing all food-handling staff on duty during the day of the alleged outbreak. You should secure all remaining food product that is believed to be contaminated. Do not destroy it but freeze it (if spoilable) or lock it up in case the health department wants to inspect it. Second, take written statements from all individuals involved in the food handling, which they can show later as a good-faith effort to investigate the matter. Plaintiff's attorneys always claim there was "really" no investigation if there is no record of it. . If you can do so, hiring a food safety consultant to assist with the investigation can be invaluable, and that person might be able to serve as an expert witness on your restaurant's behalf, should the matter become litigious.

Who else do I need to contact?

Contact your supplier(s) if necessary. If the illness might be related to a vendor's product, you should notify the distributor and/or supplier immediately.

-- Barry Shuster, JD, MBA, MS, CHE, interim chair and visiting associate professor, the Department of Hospitality & Tourism Administration, North Carolina Central University School of Business.


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