As the number of Hepatitis A illnesses in and around Milan, Illinois climbs, media coverage has been focusing on the alleged failure of a local hospital to report the initial case to the health department. That criticism may be well deserved.   From both a legal and policy standpoint though, the McDonald’s restaurant and those that operated it are responsible for the outbreak.

First of all, the first employee of McDonalds who tested positive for Hepatitis A, whose positive test was apparently not timely reported, has stated that she notified McDonalds of her illness, but was allowed to, or told to, keep working. If she was not allowed to return to work, this outbreak is avoided. 

Second, even an infected worker is unlikely to spread illness if proper hygiene practices are followed. For example, it was discovered that a worker at a Houlihan’s restaurant in Geneva, Illinois had worked while sick with Hepatitis A in January of 2007.   Ultimately, though, no additional illnesses were reported as a result.   Likely, this was a combination of good hygiene at the restaurant, and a little good luck. Thus, even with a sick worker on site, illnesses are not automatic – and good hygiene can reduce or eliminate those illnesses.

Third, McDonalds could have ensured that none of its workers ever got Hepatitis A in the first place.   Marler Clark has been calling on restaurants, especially those with a workforce the size of Mc’Donald’s, to vaccinate employees against Hepatitis-A for years.   Had this simple recommendation been followed, the hospital never even gets the chance to drop the ball on reporting – because the worker never falls ill. 

Finally, the applicable legal standard for the sale of food must be remembered.   When McDonald’s sells food to a member of the public, it effectively makes a legal promise that the food is safe for its intended purpose – you know, eating it. If eating that food either makes you ill, or forces you to take medical action to avoid falling ill (a shot), then that promise has been broken. Under legal doctrines like strict liability, breach of warranty, and negligence, McDonald’s is liable for the results of the consumption of its food – no matter what.

Focusing attention on the proper reporting of foodborne and communicable illness is a good thing – but let’s not lose the forest for the trees.