Loblaws sued over hep A-infected employee

$100-million class action law suit launched against the company

This August more than 17,000 Torontonians who bought produce at a west-end Loblaws lined up for hepatitis A vaccines after a store employee came down with the disease.

In September, a $100-million class action law suit was launched against the company.

The Canadian grocery chain was accused of negligently exposing customers to hepatitis A. The statement of claim alleges the company is vicariously liable for the negligence of some of its employees. It asserts the company, or at least some employees “were, or should have been, aware” by the end of July that the infected employee was showing symptoms of a disease but allowed the person to continue working with food. It was Aug. 16 before Toronto Public Health officials announced the employee was infected with hepatitis A.

The case raises important questions about what a company in the foodservices industry can reasonably be expected to do to ensure hepatitis does not show up in the workplace or at least that customers are not exposed to the disease, said Lee Shouldice, a lawyer in the Toronto office of Blake Cassels & Graydon. (Loblaws did not respond to repeated requests for an interview.)

The issue is whether or not it is reasonable to expect Loblaws to require employees to certify that they are capable of coming to work without putting customers at risk when the employee may not even know he has the disease, said Shouldice.

Hepatitis A is a rare liver disease spread from person to person by putting something in the mouth that has been contaminated with the fecal matter of a person with the disease.

“The virus is more easily transmitted in areas where there are poor sanitary conditions or where good personal hygiene is not practiced,” states the claim.

In particular, the claim against Loblaws alleges the company and several employee defendants were negligent in that:

•the company failed to meet the minimum standards of practice for preventing transmission of infectious diseases;

•it employed people when it knew or ought to have known that they were infected with hepatitis A or other infectious diseases;

•it failed to ensure employees who handled produce were free from infection;

•it failed to employ properly trained competent staff; and

•it failed to adequately supervise work to ensure compliance with company and industry standards and practices for the safe and sanitary handling of food.

In a nearly identical incident late last month, an employee at a London, Ont. Sobeys grocery store was diagnosed with hepatitis A. Earlier this year more than 6,000 people had to be vaccinated after an employee who handled food at Capers Community Markets in Vancouver tested positive for hepatitis A. In that case, seven customers contracted the disease, according to the Vancouver Coastal Health Authority (VCHA). And in January 2001, 5,400 people were immunized in Edmonton after an employee of the Real Canadian Superstore tested positive.

Dr. Jane Buxton of the VCHA said unless employees are vaccinated against the disease it would be difficult to ensure hepatitis won’t show up in the workplace. Adhering to proper hygiene standards helps but is not a guarantee and the symptoms are not that distinct from more common ailments so it is difficult to detect right away. Beyond that, the infected person is contagious as much as two weeks before he becomes symptomatic anyway.

To guarantee employees aren’t bringing hepatitis A or any other communicable disease into the workplace would require frequent trips to the doctor for testing, said Shouldice. “I don’t think the medical system could handle it.”

Neena Gupta, a lawyer with Toronto-based Goodman Carr, said since there are minimum standards of hygiene and sanitation, if it can be proven that those standards were ignored or breached in some way then the company could be exposed to claims for damages.

However, like Shouldice, she is skeptical about some of the other charges made against Loblaws. To say the company “ought to have known” might not be considered reasonable. “I would think the court would be reluctant to impose a duty of care just because someone looks under the weather,” she said. “Are we really imposing a duty of care requiring managers to make a medical diagnosis?”

After the Capers case, the VCHA in co-operation with the Canadian Restaurant and Foodservices Association and the B.C. Restaurant and Foodservices Association, introduced a new subsidized vaccination program for food-service workers.

For establishments participating in the program, the cost was $40 for each employee vaccinated, $15 less than the regular cost of a dose of hepatitis A vaccine.

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