Should Restaurant Employees Be Required to Wash Their Hands? - Law Blog

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Should Restaurant Employees Be Required to Wash Their Hands?

Freshman Senator Thom Tillis has a novel idea: it shouldn’t be mandatory for restaurant employees to wash their hands after using the restroom. The catch would be that restaurants that don’t require employees to wash their hands have to post signs stating so.

Thom TillisMost reactions will be, “I’d never eat at a restaurant that doesn’t mandate employee hand washing!” That’s the Senator’s point: most businesses that posted signs telling customers their workers don’t have to wash their hands would go out of business. The free market is just as effective, if not more so, at regulating the economy than the government.

Critics have expanded Tillis’ reasoning to other issues. If restaurants simply have to post signs that their employees aren’t washing hands, then nuclear power plants can post signs explaining radiation is pouring out of the plant rather than shield the reactors.

Contrary to popular belief, there are many areas of law where disclosure is the rule rather than government mandate. Real estate sale laws are built on disclosures. Government doesn’t force houses off the market if they have problems; consumers are merely advised that the house they are looking at might be subject to landslides or infested with terminates. California, one of the most liberal states in the country, doesn’t require physicians or attorneys to purchase malpractice insurance. If these professions don’t purchase insurance, they merely have to disclose their lack of insurance to clients or patients.

We require disclosure instead of action in many areas of life. Disclosing lack of hand washing instead of requiring hand washing seems dangerous and it is. However, there are far more dangerous activities where the regulation merely requires disclosure.

The Type of Regulation Matters

Tillis’ opponents have also denounced his suggestion as more regulation. Requiring posting signs that employees don’t wash hands instead of a requiring that employees wash their hands is merely trading one regulation for another.

From a practical standpoint there could be a real difference. California doesn’t require professionals purchase insurance because insurance in the golden state is extremely expensive. If doctors or attorneys starting new firms or clinics were required to buy insurance, they might be pushed out business before they could even get started.

Of course, hand washing doesn’t have that practicality dimension. It’s not that expensive to turn on a faucet for a few minutes. No, Senator Tillis is basing his argument on pure principle. The role of government regulation in the market is to ensure that consumers have full and complete information. It is not the government’s role to determine how a company should work. The former is about advising the consumer while the latter is about controlling businesses.

Of course, disclosure laws aren’t perfect. Courts hear plenty of cases about whether real estate sellers or agents have to disclose that a house floods, has mold, or is haunted by a ghost. California deals with complaints that professionals without insurance bury disclosure forms in a mountain of other paperwork. If restaurants merely had to disclose that their employees don’t wash hands, there’s a good chance many of them would put the signs in obscure places.

It’s true that businesses sometimes break disclosure laws. But people break laws all the time, even when the law is mandatory. Ironically, Senator Tillis’ proposal would still require government oversight, but instead of the FDA, it would probably be from sick patients bringing lawsuits to courts.


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