Ann Marie Hensler is based in our Tampa office
The U.S. government recently declared a public health emergency concerning the outbreak of the H1N1 virus, commonly known as the "swine flu." It is important that employers are prepared to react quickly to this or any other communicable illness outbreak by developing a written communicable illness response plan covering the following steps (or revising existing policies covering the following):
- Responsible department or person: Determine who will be responsible for updating and disseminating the written communicable illness response plan. That person should be charged with regularly monitoring developments provided by the Center for Disease Control (CDC) or related health authorities and distributing appropriate information to employees about any communicable disease outbreak. Also, consider making sure this person keeps an up-to-date employee contact list in the event it becomes necessary to notify employees about an outbreak.
- Occupational Safety and Health Administration: Your communicable disease outbreak policy and plan should be designed to comply with the Occupational Safety and Health Administration's (OSHA) requirement that employers protect the health and safety of employees in the workplace. Consider offering face masks if your employees have high exposure to the public, and discounted preventative treatments such as flu shots. In addition, encourage employees to avoid the spread of the illness through measures such as frequent hand washing and staying home when ill.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
- Family and Medical Leave Act: Employees who miss work because of a communicable disease outbreak are likely to raise questions about the leave treatment of their absences. A communicable illness such as the H1N1 virus is likely to be considered a serious health condition covered by the federal Family and Medical Leave Act (FMLA). If you are an employer covered by the FMLA, make sure your employees know that they are entitled to up to 12 weeks of unpaid leave per year for their own serious health condition or to care for a covered family member suffering from a serious health condition, and be prepared to treat absences related to a communicable disease outbreak as eligible for FMLA leave.
- Americans with Disabilities Act: An employee who reports that he or she may have been exposed to or is suffering from the H1N1 virus or other communicable disease may be entitled to protection under the Americans with Disabilities Act (ADA). Not only may some communicable diseases constitute actual disabilities, but the ADA also forbids "regarded as" discrimination: treating an employee adversely based upon a perception that he or she has a disability. If an employer treats an employee with a communicable disease adversely because of an incorrect perception or belief about how the disease will impact him or her, it may violate the ADA's regarded-as-disabled provision. That means employers must ensure their actions are based on accurate facts about an employee's condition and its effects, and also that they consider accommodations that may allow an employee to work. The ADA would likely not require an employer to allow a contagious individual in the workplace, but such an individual who was otherwise able to perform the essential functions of the job may be allowed to work with a reasonable accommodation (e.g., telecommuting).
- Privacy Rights: Employers are required to balance the privacy rights of ill employees with their obligation to notify other employees that they may have been exposed to a communicable disease in the workplace. Employers should strive to ensure that the ill individual's identity is protected, perhaps by simply notifying other employees that they may have been exposed to a communicable disease but not revealing the source of the exposure.
- Organized-labor issues: If the above steps require changes to existing policies, unionized employers may need to bargain with or provide notice to their union(s) of the proposed changes to their policies to deal with communicable disease outbreaks. Employers should ensure they have the time to engage in any needed bargaining or notification in advance by including a disaster management provision the next time they negotiate their collective bargaining agreements.
- Return-to-work procedures: Employers should notify employees in advance about the types of documentation they will require from medical providers before a return to work in a communicable disease situation. Employers should consider the kinds of documentation that will be required with respect to employees who have (a) been treated for a communicable illness, (b) traveled to a place with a high incidence of the particular communicable illness, or (c) cared for a family member suffering from the communicable illness.
Conclusion
A proactive employer will be prepared for a communicable disease outbreak before it hits, by having a well-written communicable illness response program already in place. Preparing in advance will minimize the effect on the workplace in general, and the stress on employees more particularly, during a time that may otherwise be chaotic.
The U.S. government recently declared a public health emergency concerning the outbreak of the H1N1 virus, commonly known as the "swine flu."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
