By Alisa Pittman Cleek Esq., and Clay Mingus Esq.
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 food poisoning 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.
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. This article will address measures you should take to reduce the chances of a food poisoning and some thoughts on how best to respond should an emergency strike.
Foodborne Illness Outbreak
Google “food poisoning” and stories of foodborne illness outbreaks will appear on your screen with lightning speed. Your restaurant’s reputation can be damaged almost as quickly if one is traced back to you. Many years ago, a food poisoning outbreak, while still negative, was not devastating to a restaurant. Today, however, with mass media coverage of foodborne illness outbreaks and an opportunistic plaintiff’s law firm just waiting to pick up the case, a single food poisoning incident can be difficult to recover from, both from a public relations standpoint and financially.
Food poisoning outbreaks vary greatly in terms of their magnitude and the media attention given to them. In cases like the recent E. coli infection that spread across the nation due to tainted spinach, it is difficult to find anyone who isn’t aware of it. In less well-known situations, food poisoning from your restaurant may get almost no attention beyond the few patrons who fall ill from eating spoiled food. Whatever the size of the outbreak, it is helpful to know how to respond.
Food poisoning presents unique response challenges to restaurant owners. Many patrons will not even know they have been infected with a foodborne illness until after they have left your restaurant. Many are unlikely to trace the illness back to your restaurant. In fact, a recent Scripps Howard News Service study found that records from the Centers for Disease Control and Prevention over a five-year period showed 64 percent of reported foodborne illnesses were of unknown origin.
Many types of food poisoning do not present symptoms for more than a day after the food has been ingested. Couple this late presentation of symptoms with the numerous types of foodborne illness, and the challenge of how best to respond to such an event becomes evident. Food poisoning can have a devastating effect on your restaurant’s reputation that can last long after the last sick guest recovers.
Measures of Safety
If food poisoning does strike, responding quickly and effectively is critical. There are several measures a restaurant should have in place to respond to a food poisoning event.
Develop a plan and stick to it. While it is impossible to know exactly how food poisoning might manifest itself at your restaurant, it is important to have a “Food Poisoning Contingency Plan” in place and to make sure all employees are appropriately involved, from managers, to servers, to the back of the house. (See “A Food-Safety Emergency Contingency Plan: Some Points to Consider” below.)
No matter the size of your restaurant, your plan should be written and should be a part of management training. As with most policies, it is not enough to tell employees once and assume they will remember. You should remind your employees frequently of the plan. It is also a good idea to include some mechanism to ensure that trainees have learned the plan, such as a comprehensive test before allowing them to begin work.
Know your audience (and make sure it knows you). There are many reasons a restaurant should become involved in the community around it. Such involvement breeds goodwill and name recognition. Simply, it’s just good “PR.” But the benefits of being an involved and conscientious member of the community can pay off in the case of a foodborne illness outbreak as well.
Know a problem when you see it. Identifying a food poisoning event as quickly as possible can make all the difference. Foodborne illness can travel quickly and widely. You do not want to be a week into a medical crisis before you realize that one is going on. If a customer contacts you to complain about food poisoning, take the matter seriously. Get all the facts and perform a thorough investigation. Segregate all time records and shift reports from the date on which the patron visited your restaurant. Food inventory logs, to the extent they exist, should also be secured.
Don’t bite the hand that regulates you. As a restaurant owner or manager, you will no doubt become very familiar with the health and building safety inspection process. The local regulators that monitor these areas look at everything from fire extinguishers to ice scoops. No matter how trivial their requirements may seem, one thing is fact: They are the law in these parts. So it is best to establish a good relationship with local regulators early and to cultivate the relationship each time an inspector visits. This extension of goodwill could go a long way in the case of a foodborne illness outbreak.
If an outbreak is traced to your restaurant, the health inspector can be your best friend or your worst enemy. It is up to you to establish the relationship. Once an outbreak is certain, you can bet the health inspector will be calling. If you have laid the foundation with your health department early and developed a trusting and productive relationship with the inspector, you will reap the benefits in responding to an outbreak.
From the moment the health inspector arrives, make sure he/she knows you are focused on getting to the bottom of the situation and making it right. Setting a tone of cooperation and genuine concern at the outset cannot be underestimated. You should also feel comfortable to ask questions and seek guidance. Little will make you feel more confident in your dealings with the health inspector than knowing your restaurant has a food poisoning contingency plan and that it has been followed.
Know the hand that supplies you. You should know your vendors and be comfortable that you are getting the best product available from them. Where feasible, you should visit their facilities and satisfy yourself that they are as concerned about food safety as you are. A foodborne illness outbreak can just as easily be caused by your unknowing receipt of poisoned food product as by your restaurant’s mishandling of food. Because of this, you should keep current contact information for all of your vendors. You should have cell phone numbers in order to reach someone in case of an emergency outside of normal business hours. A food poisoning outbreak can rarely be counted on to occur during normal business hours.
Equally as important to being able to contact your suppliers in case of such an emergency is your managers’ ability to contact you and each other in case of an outbreak. A list of contact numbers should be easily accessible and frequently updated. Calls from concerned managers should be encouraged and welcomed.
Invest in your goodwill. When a foodborne illness is traced to your restaurant, the damage to your reputation can be staggering. Bringing in public relations firms and medical consultants is a wise move. Their impartial, objective eye will be beneficial in repairing a situation that can seem overwhelming to those on the inside. In cases of foodborne illness that result in hospital stays for infected guests, consider placing a representative from your restaurant at each hospital, perhaps even with each affected family. This will show the families of those infected that you are concerned about their well-being and recovery. It also will give you an inside perspective on the mood and possible litigation plans of the family. If you place such a representative, make sure he/she knows that his/her role is a public relations one. He/she should not make promises or admit any liability that might later come back to haunt you in court.
Have someone mind the shop. If you are called on to manage the fall-out from a food poisoning event, it will be all-consuming. And if you give it the importance and priority it deserves, then it should be. In certain severe cases, the health department might temporarily close your restaurant while it investigates or completes a sanitation process. In any event, whenever your restaurant next opens, it is critical to have managers on site to keep business moving.
Those managers should be trained to respond to inquiries about the outbreak. This is an area where a public relations firm can help. An expert can assist in developing ways for your managers to respond to inquiries in a way that is least damaging to the business’s interests while still being truthful.
Of tantamount importance, your employees can be invaluable mouthpieces for your restaurant in case of an outbreak. They are the people with whom your patrons are most likely to interact and should be trained to respond to inquiries from guests. It is usually advisable to have a manager answer guest questions about an outbreak. In the days immediately following a major food poisoning event, however, managers will be stretched thin, so it is important that your staff know how to respond to customer questions.
Until the dust settles, your staff should be trained on this, and reminded at the beginning of each shift. You should impress upon your employees that their livelihood may depend on what they say and how they say it.
Time to wash up. Many cases of foodborne illness are caused and spread by employees. Hand washing is of critical importance to avoid a food poisoning event in the first place. But if one occurs, making sure all employees wash their hands properly and frequently can play a major role in stopping the spread of foodborne illness. The health department most likely already requires hand washing signs to be posted in several locations, but in the days following a foodborne illness outbreak, there is no such thing as too many hand washing reminders for employees.
Don’t punish legitimate sickness. Employers who come down too hard on call-outs may run the risk of having a “presentee-ism” problem with their staff. Employees who are ill should be able to call in sick without worry of being punished for it. If an employee is genuinely ill, you do not want him/her in your restaurant. Employers who create an atmosphere in which employees feel an absence for sickness will cost them their jobs cause sick employees to come to work, which spreads illness.
Be familiar with state and local plans. For food poisoning outbreaks that assume statewide or even national publicity, a state or national agency may step in to help manage the event. Many states have created emergency response plans to deal with food poisoning outbreaks. You should familiarize yourself with any statewide plan in place where you do business. Know the agency that administers that plan and keep contact information for this agency accessible.
If the agency imposes requirements for reporting foodborne illness outbreaks that are within your knowledge, you should follow those regulations. While it may be tempting to try to sweep a food poisoning event under the rug, you might be doing so at the risk of further liability from a regulating agency.
Be knowledgeable about your recovery options. Many restaurants respond to a food poisoning event by stonewalling infected guests to avoid even the appearance of liability. In the case of an outbreak caused by food you received from a supplier, however, it may be more beneficial to work with an infected patron to manage your exposure. Of course, you should always check with your legal counsel before admitting any liability or offering to provide any compensation to an individual claiming food poisoning at the hands of your establishment. With the guidance of legal counsel, however, you might benefit from offering an infected guest a fair monetary settlement in anticipation of being able to recover those costs from your supplier.
An Ounce of Prevention
Knowing how to respond to a food poisoning event is imperative, but restaurants can perform a number of tasks regularly to help avoid a food poisoning outbreak in the first place. While many of these steps may seem intuitive, they bear mentioning:
Comply with all local and state health regulations. The regulations are there for a reason, and conscientiously following them will help your restaurant stay out of the news. Pay attention to the health grade your restaurant receives during a health inspection and take affirmative, quantifiable steps to remedy any problems areas. Of course, it is desirable to maintain perfect health practices at all times, and many restaurants do. But there are few things worse than getting dinged for the same infraction two health inspections in a row. Not only does it place your restaurant at greater risk of liability, but also it shows the health department that you do not heed their orders.
Maintain clean surfaces in your kitchen. As basic as this advice may seem, it cannot be overstated. Many food borne illnesses begin right on the cutting board. Your kitchen staff should be well-trained in the areas of food safety and kitchen cleanliness.
It is not enough to tell employees once and assume they will always operate under the rules of the house. Remind your staff frequently of the need to maintain a clean and safe kitchen. You don’t have to be confrontational or nagging to ensure compliance. Just as your front-of-the-house service staff responds to fun contests tied to their sales volume, your kitchen staff should have incentives to keep the place clean. If maintaining a clean kitchen becomes fun and ends up benefiting staff in the end, it will be accomplished more regularly.
Make sure your restaurant is properly equipped and staffed. Providing your kitchen staff with the tools necessary to keep food safe will benefit your organization in the long run.
Labor costs in the back of the house are always a concern, but the risk of food borne- illness increases greatly if a cook is momentarily pulled off the line to handle dirty dishes, only to return to the line. When such task juggling is unavoidable, make sure any food handler who performs an interrupting task, no matter how short, knows to rewash his/her hands before resuming food-handling duties. A staff member performing food preparation duties may not realize that something as simple as leaving his/her station to open a door could contaminate his/her hands, and consequently contaminate the food when he/she returns.
Communicate your policies clearly and effectively. If your restaurant employs non-English speakers, you should ensure that all requirements and policies are printed and otherwise communicated in a language your staff can understand. Imposing the requirement does no good if your staff does not understand it.
Post food temperature requirements. You should post and ensure familiarity with food heating and cooling requirements. Foodborne illness often otherwise would have been avoidable if food had been properly stored and handled. Ensuring cooked meat remains heated is every bit as important as making sure uncooked meat remains refrigerated until used. All kitchen staff should be trained on these temperature requirements and should be retrained regularly.
Additionally, you should put in place mechanisms to ensure compliance with these requirements. Managers should be required to walk through the back of the house at least at the beginning and ending of each shift to make sure temperatures are properly being maintained. As with any duty, simply requiring it is probably not enough; require your managers to complete a form showing they have performed these checks. This ensures that they actually perform the review while making them accountable for deficiencies that occur on their watch.
Don’t hesitate to discard food. All stored food should clearly be marked with a date and time when it was initially stored. The food also should be labeled with an expiration date, and your restaurant should stick to it. Food cost is an expensive part of any restaurant operation, so many managers sometimes attempt to stretch supplies past their expiration dates to cut down on expenses. Liability from a food poisoning outbreak as a result of this practice, however, can far outweigh the costs involved with throwing old food away.
Make your safety plan evolve with your product. Restaurants frequently introduce new food products on their menus. Keep in mind that new food products may come with new food safety requirements. Ensure that you have a thorough understanding of any new or different food safety requirements that are part of new products as well as any potential food safety challenges posed by your new products. Restaurants that display certain food items should ensure that display cabinets are properly adapted to account for any different requirements of new food product.
Clearly communicate potential allergens. While not a food poisoning outbreak in the most common scenario, certain food allergies can result in illness and even death. The most common ingredients that cause allergic reactions are eggs, fish, crustaceans, tree nuts, soy, peanuts, milk and wheat. To the extent food in your restaurant is processed on machinery that also may come into contact with a potential allergen, you should communicate that possibility clearly to your guests, and, if possible, should avoid a cross-contamination risk by segregating preparation areas for food containing them. If your restaurant uses menus, they are often a good place to include such an allergy warning. Similarly, if an item on your menu contains any of the most common allergens, it may be worth the space on your menu to include an indication of those ingredients.
Training is Key
A food poisoning outbreak is avoidable in most cases. Properly training your staff can go far in averting such an event. If one does occur, however, make sure you have a plan to address it. Seeking the advice of legal counsel is important in developing such a plan, but remember that you and your managers are most closely affected by the implementation of a plan, so be involved in the plan’s creation.
A Food-Safety Emergency Contingency Plan: Some Points to Consider
By Barry K. Shuster, Esq.
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.
√ 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.
√ Contact your 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.
√ 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.
√ 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.
√ 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.
√ 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.
√ Contact your supplier if necessary. If the illness might be related to a vendor’s product, you should notify the distributor and/or supplier immediately.
√ Hire a food safety consultant. 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.
(Please note: Legal articles are for your general information only. Legal advice must be tailored to the circumstances of each case, and laws are constantly changing. Federal laws, the laws of each state, and often each municipality vary and each may have its own procedures and time limitations that must be followed. Confer with a lawyer in your state to assess your legal rights in a particular situation.)