You’ve probably had enough of hearing about the swine flu (now called the H1N1 virus). It’s front-page news across the world. We are now in a full pandemic as defined by the World Health Organization, but the first thing to understand is not to panic. Your company may already have been required to address some thorny legal issues in the workplace over this crisis. If not, you soon may be.
This isn’t the first time we have dealt with potentially deadly viruses. Remember anthrax and the fear prompted by AIDS and HIV? A problem employers may have already addressed is their employees’ fears. Some employees are naturally suspicious of every cough or sneeze, and they’re going to be looking to you for answers to their questions: “Should I be concerned?” “Should I stay at home because I feel bad?” “Can I go home because I think my coworker or a customer has exposed me to something and it just might be the swine flu?” All of these issues raise serious employment law concerns. Employers must tread carefully to avoid violating the law and make sure panic doesn’t erupt in your workplace.
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‘Should I be concerned?’
First, you must let employees know that they shouldn’t panic. The Centers for Disease Control has stated that we should all go about our daily lives and take extra precautions regarding personal hygiene (e.g., washing hands frequently with soap and water and coughing into a handkerchief or napkin). Make sure you remind your employees of these important hygienic steps, which they should already be doing anyway.
‘Should I stay home because I feel bad?’
As you are aware, the general duty clause of the Occupational Safety and Health Act (OSH Act) requires private employers to maintain a workplace “free from recognized hazards” that may cause injury or death. The clause is broad enough to require employers to take action to control workplace exposure to contagious illnesses. Obviously, your obligations will depend on the circumstances of your workplace and how serious the risk is.
Employees often get mixed messages about whether they should stay home when they feel ill. Some workers fear that by calling in sick, their employer may perceive them as weak or not a team player. Your own sick leave policies can convey that message. Employees who may be just one absence away from termination under your attendance policy may be more likely to report to work — even if they’re sick. It is important to let employees know that you expect them to stay at home while exhibiting symptoms of any serious contagious illness — be it swine flu or anything else.
And keep in mind that the more interaction workers have with others, the greater the risk of spreading the infection. Service industry employees interact with one another and members of the public more often, while hospital workers have a greater risk of exposure from patients. With that in mind, the Occupational Safety and Health Administration (OSHA) has issued guidance on preparing workplaces for an influenza pandemic. The guidance sets out the actions that low-, medium-, and high-risk facilities should take. To view a copy of the guidance, visit www.osha.gov/Publications/influenza_pandemic.html.
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‘Oops! I think I’ve been exposed. Can I go home?’
Suppose you have an employee who fears he has been exposed to the flu, or maybe the risk is high and he demands to go home or refuses to come to work at all. Can you prohibit him from going home? Can you discipline him if he goes home anyway? Be careful. Depending on the circumstances, the OSH Act may allow an employee to refuse to come to work if he has a good-faith fear of workplace exposure. In that situation, the court may ask whether there were any “reasonable alternatives” available to the employee, even if there was a serious risk. In determining whether the employee has a good-faith fear, there must be a real danger determined by scientific evidence. A panicked employee with no factual basis for his fear won’t cut it.
Does the employee have any recourse if he’s just panicking? Well, if he’s panicking with a group, he may be engaging in protected concerted activity, especially if the group refuses to come to work. In that case, the National Labor Relations Act (NLRA) may come into play — even if you aren’t a unionized employer. If a group of employees walks out over concerns of workplace exposure, your options for discipline may be limited. The threshold for satisfying the NLRA’s “concerted” requirement for safety and health concerns is really not difficult to meet. If you encounter this problem, you should consult competent legal counsel before taking action.
In addressing whether employees engaged in protected concerted activity, the NLRA (unlike the OSH Act) doesn’t require workers to have a “reasonable” belief that a situation is unsafe before refusing to work. Generally, it is improper for a court to analyze whether a group of employees’ concerns over a workplace issue is truly reasonable. In fact, it’s typically considered irrelevant to the issue.
As long as the employees believed that they were complaining about workplace concerns, their activity would be protected. The NLRA does include a reasonableness “option” (though not a requirement) with regard to replacing workers who walk off the job. If the employees acted with a “reasonable belief” that the workplace environment was unsafe, the employer is prohibited from replacing them with substitute workers.
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‘I was exposed. Can I sue you?’
Can an employee sue you for damages if he is exposed to an infection at the workplace? Well, there’s always the issue of if (and where) the exposure occurred. If the employee is able to show that the exposure occurred in the workplace, he could potentially have a workers’ compensation claim against your organization.
The good news is that damages under workers’ comp laws are significantly less than that of tort law (i.e., law pertaining to civil wrongs). The bad news is that the employee doesn’t have to prove you did anything wrong to prove his claim if exposure at the workplace can be established. And don’t forget, any illness that requires hospitalization or continuing treatment from a health care provider or that causes incapacitation for three or more days may qualify as a serious health condition under the Family and Medical Leave Act (FMLA).
‘Don’t tell anybody I’ve been exposed’
What, if anything, can you tell coworkers about an employee who has contracted swine flu? The FMLA states that all medical records should be kept confidential.Some state laws and courts have addressed employee privacy issueas as well.
Contrary to popular belief, information about an illness learned through workplace knowledge or by virtue of the FMLA, workers’ comp, or other medical records is not protected under the Health Insurance Portability and Accountability Act (HIPAA). Information an employer obtains through the group health plan, however, is absolutely HIPAA-protected. The bottom line is that if you have an employee who has contracted swine flu, get legal advice before talking.
State-by-state comparision of 50 employment laws in all 50 states
Suggestions for employers
You may be wondering whether we have any suggestions. We do. We’ve included a few, although the list is by no means exhaustive.
- Communicate with your employees, and do it now. Remind them of proper hygiene. Let them know the importance of reporting their concerns regarding exposure and any symptoms of illness. Make sure they know that you expect them to stay home if they are sick.
- If employees must stay home because of illness, consider a temporary relaxation of your attendance policies — particularly if the absence is not FMLA-covered.
- Review your policies regarding what to do in case of an emergency. If you don’t have “emergency” policies in place, consider them now. They should include assigned responsibilities for specific individuals in a variety of scenarios. Make sure all departments have assigned roles.
- We all hate the term “nonessential personnel,” but we have to use it when determining what must be done to continue business operations. You should be identifying not only which employees are essential but also outsiders (e.g., vendors and shippers). Ask your suppliers to keep you informed if their employee shortages may cause a delay in deliveries or other services.
- Consider providing hand sanitizer and other supplies, but be careful. Don’t bring them out too soon; it appears that supplies are becoming scarce. Respirators do not appear to be useful.
Subscribers to any of the 50 Employment Law Letter newsletters can access a sample policy on life-threatening, contagious, and/or debilitating illness
Bottom line
We can’t emphasize this point too much: Don’t panic! And don’t be shy about asking questions. Learn from past workplace exposure situations, but know that if you panic, your employees will, too. For more information on H1N1, visit OSHA’s website at www.osha.gov/dsg/topics/pandemicflu/index.html.
Workplace Catastrophes: An Employer’s Guide to Workplace Violence, Terrorism, and Natural Disasters — updated for 2009