Q. We have a server at one of our restaurants who has open sores on her face. She claims she can’t get a bandage to stick to her chin, leaving the sore uncovered. As a result, we have received a few customer complaints. May we remove the server from her shifts so that we do not lose business?
A. Possibly, but not without first engaging in further discussion with your employee.
It is not clear from your question whether the server has a health condition that is causing the sores and could be considered a disability. But given the expansive definition of “disability” under federal and state law, you will want to err on the side of caution and engage in the interactive process with the employee.
Employers may certainly restrict employees with sores on hands and arms from waiting on customers unless the employees are able to cover up the sores. An employer’s right to restrict employees with sores in other locations of their bodies is a little less clear, but it is certainly understandable that you (and your customers) would have concerns that a server may inadvertently touch the sores on her face and then touch food.
Before you are quick to remove the server from service, you will want to follow up with her to get more information about why she has been unsuccessful in covering her sores.
If she responds that she has not been able to find the right shaped bandage or cannot afford bandages, the company is well advised to offer to purchase the needed items. If the server still refuses to cover the sores, it is less risky to take her off the schedule or have her work other duties (while losing out on tips) until the sores heal.
Susan K. Fitzke and Sarah J.Gorajski are shareholders, advising clients out of Littler Mendelson’s Minneapolis office. Contact them at (612) 630-1000 or send email to Susan at firstname.lastname@example.org and Sarah at email@example.com.
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