Barefoot McDonalds Redux

You all may recall the situation I reported on a month ago, in which a McDonalds employee in Newark, Ohio (my back yard) was photographed barefoot in the store. There was a big news story and the Licking County Health Department sent an inspector and considered it a health code violation.

I wondered what would happen if I tried to eat there barefoot. But it turns out that there is quite a bit more to the story.

First, let me get this out of the way: if you are chortling about Ohio having a Licking County, read How the Licking Got Its Name.

So, on Friday I went to eat at that particular McDonalds. They are right on the courthouse square in Newark, and are in a pretty classy-looking location. Here’s the restaurant.

The McDonalds in Downtown Newark, OH

First, I checked to see if they had any “No Bare Feet” signs. Here are the outside doors.

The Entrance (Outer Doors)

Yes, you can definitely see that I’m barefoot! But there are inner doors, and there is a sign on them.

The Entrance (Inner Doors)

Yup. I’m still barefoot. And as you can see, the sign has nothing about bare feet. So I went in and had lunch.

Let me define a word. Toe-dar: That’s the ability to be able to tell when people are talking about, or scoping out, our bare feet, even when they are trying not to be obvious.

After I got my meal, I sat down near the front window. Not right against the window (where my bare feet would be hidden from passers-by), but across the aisle. And then my toed-dar went off. My peripheral vision noticed an employee come up behind me, get to about my 9 o’clock, look down, and then retreat back. Then she went back and talked to an old biddy of a customer, and I could see her nod her head.

I’d been reported by a busybody.

So I made sure to eat my lunch really, really slowly, to give them a chance to come talk to me. But they never did.

The thing is, I was rather looking forward to having them try to convince me of something about the health codes (which we all know apply only to the employees and the preparation of the food).

You see, here’s where the rest of the story comes in. On Thursday, I’d finally gotten a definitive reply to an email I’d made to the Licking County Health Department.

And that story is a doozy.

I originally wrote about the barefoot employee in Barefoot McDonalds. Here’s the picture that started the brouhaha. (From seeing the place, it looks like the picture was taken from the drive-in window.)

Barefoot Employee in McDonalds

The 10TV news story both said that the bare feet were a health code violation, and that the McDonalds was not issued a citation. So I wanted to find out more. I looked at the actual inspection report. The inspection was prompted by a complaint due to the picture. In it, we find out why the employee was barefoot.

It was after hours, and the employee (an assistant manager) had come in to change items on the sign board behind the counter. She was wearing flip-flops, and decided she did not want to go up the ladder wearing them, so she took them off and did it barefoot, instead.

To me, that’s a really smart move. You don’t want any part of your footwear getting caught on a ladder rung. Really. She was much safer doing what she did.

As I noted in my other post, the issue was supposedly a violation of Ohio Administrative Code, Management and personnel: personal cleanliness, Section 3717-1-02.2(H):

(H) Outer clothing – clean condition.

Food employees shall wear clean outer clothing to prevent contamination of food, equipment, utensils, linens, single-service articles, or single-use articles.

The inspection report quoted that, but also had the inspector’s own comment:

Food employees outer clothing is dirty. Employee in the facility in their bare feet.

They don’t notice the inherent contradiction in that? The clothing that the employee did not have on her feet was dirty.

The follow-up inspection from a week later was also rather amusing: the inspector noted that all employees were wearing shoes. Well, yeah. They usually do.

But the ambiguities in what I saw about the inspection reports led me to write to the Licking County Health Department to find out what had really happened, and what was going on.

Here’s what I wrote:

I am inquiring about the recent news story about the picture of the McDonald’s employee after hours in her bare feet. For the life of me I cannot figure out how this is a health code violation. The health code doesn’t say a word about bare feet.

The citation says: “Food employees outer clothing is dirty.” Bare feet are not outer clothing. The employee also had bare shins. Was that also a violation for having dirty outer clothing?

The bare feet were nowhere near any food so there was no danger of contamination. Furthermore, if feet were exuding some sort of contaminating substance, flip-flops and sandals would also be against the health code.

I understand that many people think it is a violation to be barefoot in a restaurant, but to me it clearly does not violate the health code and is not a danger to the food (as long as they are not preparing the foot with their feet). So, why was this story investigated as a violation, and why doesn’t the report note that there was no violation? And why not just tell the news media that it was not a health code violation?

The reply, from their Director of Environmental Health (who’s in charge of enforcing the food code), didn’t really clarify things for me.

Thank you for your email. In reading the inspection report again, it appears the comment language could have been better worded. However, when our office receives a complaint regarding a facility in our jurisdiction, our staff conducts an inspection and takes the opportunity to educate the operator regarding the alleged complaint. In this instance our staff spoke to the operator regarding the need to maintain the facility in a sanitary manner. While the employee was not making or preparing food with her feet, our department felt it was important to stress to the operator that sanitary practices should be utilized throughout the facility.

From that I couldn’t tell if the McDonalds had been considered to have violated the food code or not. It took another email to clarify things. Here is what the Director said:

While the language doesn’t specifically mention wearing shoes, working in a licensed food service operation in bare feet does not provide an individual with adequate protection from suffering an injury that could lead to a discharge of bodily fluids, such as blood, that could contaminate items within the facility. Some operations allow their employees to wear shorts and/or short sleeved shirts, however when they engage in an activity where an increased risk of an injury more often than not they are required to wear some type of protective clothing.

It was our department’s determination that having an employee working in their bare feet was not preventing contamination as indicated in the regulation above, and therefore cited the violation.

That just didn’t seem right. That’s not what the code says, and it seems to be singling out just bare feet when all sorts of other bare skin (bare skin that could also get cut somehow) is perfectly ok to have exposed.

So here’s part of my reply:

The code very clearly refers to clothing contaminating food, equipment, etc. It clearly means to prevent dirt or pathogens from falling off of dirty clothing into food, etc..

The code says nothing about protecting skin (though of course it wants skin that comes into contact with food to be clean). For instance, Section (A) even talks about how the exposed portions of arms must be kept clean. These (and similar) rules are understandable: one does not want contaminants to drop from one’s hands, face, or hair into the food.

If one wishes to speculate about possible injuries, such an injury could just as easily happen to an arm scraping a preparation surface or cabinet, yet the requirement is that the arm be kept clean, not covered. Working bare-armed (or even with vinyl or latex gloves) does not provide sufficient protection from injury from sharp implements, either. Furthermore, shins can also be scraped or cut if one accidentally collides with a stool or cabinet, and the same sort of speculation regarding fluids or blood would apply there. Yet, as you agree, there is no requirement that legs be covered (or restaurants like Hooters would be shut down immediately). It looks to me as if you are making a special pleading to support your department’s interpretation.

I do not see how you or anybody could come up with a plausible scenario in which some sort of foot injury, as unlikely as that might be, would contaminate food any moreso than, for instance, a cutting implement accident. Feet are nowhere near food. If anything, if something were to happen to a bare foot, contamination from bodily fluids is astronomically less likely than from a cut on the finger (or even sneezing). And any cleanup would use the exact same procedure for dealing with blood as a cut on the hand.

Working in a restaurant in bare feet might come under the power of OSHA, but I see such power nowhere in the Food Safety Code. I also am concerned about the unjustified assumption that her bare feet were in danger.

I was actually quite surprised by the reply I got. I’m used to administrators doubling down in these sorts of situations. However, in this case, we are dealing with true professionals in their area of expertise (not, for instance, like librarians who decide to make unwarranted safety declarations). Here it is.

In order to better clarify this issue, I have requested an interpretation regarding this scenario from the Ohio Department of Health (ODH).

Our department definitely does not want to overstep its bounds regarding our interpretation of the code, and we are only interested in protecting public health in Licking County. Once we receive the interpretation from ODH, we will proceed moving forward based on their guidance.

That’s good. That’s wonderful. That’s responsible. After all, it is the ODH that enacted the food code; they ought to know what it means. The counties’ job is to enforce it.

Now here’s the kicker—the Ohio Department of Health also didn’t know.

The Ohio Uniform Food Safety Code is actually based on the FDA’s Model Food Code. So the Ohio Department of Health person had to go ask the FDA.

I really find it incredible that so many people have so much trouble reading the plain language of the food code. It says what it says, and it says nothing about what clothing is required (except for hands, and sometimes hair). That includes bare feet.

Yet, people are so absolutely convinced, based on what? word of mouth? that there is something wrong with bare feet that they just cannot rise above that conviction to read and interpret simple plain English.

By the way, the FDA’s Food Code website also has a page explaining the public health reasons for each portion of the Food Code. Here is what they say about the clothing requirement:

Dirty clothing may harbor diseases that are transmissible through food. Food employees who inadvertently touch their dirty clothing may contaminate their hands. This could result in contamination of the food being prepared. Food may also be contaminated through direct contact with dirty clothing. In addition, employees wearing dirty clothes send a negative message to consumers about the level of sanitation in the establishment.

When it comes to below the ankles, the bottom of a shoe is as dirty as the bottom of a foot. And neither is likely to be touched while preparing food. [By the way, the original source of the picture says that the manager was originally standing on the countertop barefoot. If true, again, it really doesn’t matter whether she was barefoot or shod; neither should be on a countertop.]

There is only one place where the FDA’s rationale for a rule mentions shoes: that food should not be stored in locker rooms or toilet rooms or dressing rooms, etc.. That is because dirt from shoes could contaminate the food under those conditions.

It took a while for the FDA to respond, and then that was passed down to me. Here’s what the Ohio Department of Health said:

This is not a violation of the food code but is an employee policy work safety issue and may also be considered as an Occupation and Safety Health Administration matter depending on what work duty is being conducted.

I guess I’m not surprised that, even when granting that the food code does not ban bare feet, they felt obligated to still find something wrong with bare feet.

Under the circumstances (climbing a ladder) bare feet were way more safe than flip-flops. And I have a real problem trying to figure out what other work safety issue might be involved. This is a McDonalds after all, where everything is cardboard or plastic (sometimes even the food! 🙂 ). It is the typical sort of comment you get from someone who just knows that bare feet are these fragile lumps on the ends of our ankles, and is operating outside their knowledge base (kind of like librarians, again). Again, they are forced to resort to special pleading.

Also, quite pleasantly, the Licking County Health Department says that they will be revising their approach to these types of situations and will be applying the food safety code in accordance with the FDA’s opinion.

Great news, and I really appreciate (and am impressed by) how the Licking County Health Department handled this.

But it does make you wonder how often, across the country, health departments go beyond what the regulations say. We’ve heard of restaurants claiming that they were cited for having barefooted customers and we’ve doubted it. Well, maybe the health department there really didn’t know the health code? It’s really rather scary that one has to go through this much effort, and what’s worse, restaurants become anti-barefooter based on false information.

Finally, by the way, when I left after eating lunch at this McDonalds, I went out the side door. (If you look at the picture at the beginning of this entry, on the far right behind the white truck you see doors with the address “12”. Those lead to a common entranceway that includes the side door.) Guess what was on the door there?

The Side Door

I guess I was lucky they let me eat in peace!