The Swine Flu and You: What Are Employers Required To Do?



Posted: Thursday, December 03, 2009

by Crystal O'Brien
MMC Inc.

As the long lines of diligent people waiting for H1N1 vaccinations mount and winter approaches, managers of workplaces large and small cannot help but wonder are they prepared for managing business under the threat of a pandemic? The truth is, all anyone can do is prepare to the best of their ability for something that remains uncertain.

Relying on a few fundamental legal principals should lend clarity to the situation. These include: (1) employers owe all employees a safe workplace, (2) business owners owe clients/patrons the duty of making sure that all reasonable expectations of safety are preserved, and (3) those with contagious diseases/illnesses have the right to privacy and the right to be free from workplace discrimination and harassment. However, when the scales of fairness tip in favor of safety over the rights of ill employees, a legal question emerges: does an employer have a right --- no a duty --- to demand that ill employees not report for work?  The answer, albeit very aggravating, is simply: "it depends."

The Americans with Disabilities Act and state laws, such as California's Fair Employment and Housing Act, require employers to protect employees who are known to or are reasonably suspected of having a contagious disease/illness from adverse employment motivated solely by this knowledge or belief. What this means is that an employer may not create a separate policy that requires those with Swine Flu, for example, to stay home especially when the employer does not have a formal sick policy in place. Can the employer require employees, who work around food or in a medical setting, who are obviously battling flu-like symptoms to leave the workplace? Yes. Can an employer demand that an employee use their paid-time-off benefits to stay home until they can return with a medical release --- when this employer does not require other similarly situated employees to do the same? No.

The bottom line is that employers must turn to [written] policies to assure that all employees, ill or not, are subjected to fair rules and policies that do not favor any particular class of individuals.  Enter the benefit of well-established workplace policies, which should outline a well-crafted sick leave policy, that permits employees reasonable time off from work (paid or not) to recover from illness without the fear of losing their job.

For employers with sick leave policies, care needs to be directed to making sure the policy is broad enough to provide assurances to all employees (who become ill with Swine Flu or cancer) that they may take time off from work to recover and/or assure proper treatment is administered before returning to work (where they can compromise their own health or that of others).  Employers also need to exercise the utmost precaution to avoid embarrassing or harassing employees who become ill, so as to create a "Scarlet Letter" effect, where other employees avoid and/or mistreat an employee based on that knowledge. 

Another consideration is that employers should lead by example. "Heroes" who try to work through illnesses undermine employee wellness programs. Thus, "heroes" must also be encouraged to avoid unnecessarily exposing co-workers and business clients/patrons to illnesses by staying home and either working from home or merely taking time off to care for their own health.

Crystal M. O'Brien, Esq. serves as MMC's Employment Law Manager/Corporate Counsel. After receiving a double-degree in psychology and sociology from Oberlin College in 1988, Ms. O'Brien earned a workers' compensation insurance claims adjusting license in 1991. She completed post-graduate studies in Human Resources Management at Portland State University's Graduate School of Urban & Public Affairs from 1996-1998 and earned a Juris Doctorate and Certificate in Dispute Resolution from Willamette University College of Law in 2001. Immediately following law school, Ms. O'Brien served as a judicial clerk to the Honorable Faith Ireland (ret.) of the Washington State Supreme Court. She is licensed to practice law in California Washington as well as before U.S. District Courts in each state. Collectively, Ms. O'Brien has 19 years of litigation experience.

To view her complete bio click here.

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