In a world with a 24-hour news cycle, multiple TV channels specifically designated to the news, Twitter, Facebook, blogs, and a constant news machine that needs to be fed, the adage “If it bleeds, it leads” has more power than ever before. In late 2014, we saw a good example of this theory in the American “Ebola epidemic.”
There were approximately 11 reported Ebola cases in the United States, including four cases in which people contracted the disease here and seven cases in which the patients were medically evacuated from other countries. Based on the media frenzy, you would have thought that every third person in the United States was an Ebola carrier or victim. While Ebola is an incredibly serious issue, the local statistics didn’t support the level of media frenzy.
That frenzy bred fear in the employment sector, where the media’s illness glut was followed up by the tough 2014-2015 flu season. As sometimes happens, the flu vaccine wasn’t specifically targeted to the actual strain of the virus that circulated. Suddenly, people scrutinized every returning traveler and became even more wary of anyone coughing, sneezing, or possibly just looking ill.
Normally, we see the “flu season” starts in October or November, then the pace picks up in January and peaks in February or March. So far, the 2015-2016 flu season has been a mild one, but that doesn’t mean it (or some other sickness) won’t rear it’s ugly head. If you haven’t dealt with it now is a good time to think about what you will do if the flu comes to your workplace.
Infectious and unsafe workplaces
Infectious and unsafe workplaces have been getting some play in court. In April, placekicker Lawrence Tynes filed a case in Florida in which he argues that his career was ruined after he contracted methicillin-resistant Staphylococcus aureus (MRSA) at the Tampa Bay Buccaneers’ training facility. Allegedly, he had a medical procedure that resulted in an open wound and then, during training, came into contact with other employees and players already infected with MRSA.
Tynes alleges that he wasn’t properly warned by the team that MRSA was present at the training facility and the Bucs’ wrongful conduct resulted in his career-ending injury. As an employer, you might question if you would have even known your staff had MRSA or if telling others would have violated the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA).
In another case, Texas nurse Nina Pham sued Texas Health Presbyterian Hospital in Dallas and its parent corporation, Texas Health Resources, alleging that in addition to having her privacy violated, she was exposed to an unsafe workplace when she contracted the Ebola virus while treating a patient. Remember, the Ebola virus was fairly new in the United States, it was undiagnosed when the patient was first brought to Texas Health Presbyterian, and the Centers for Disease Control (CDC) as well as the Texas Department of Health were both involved in the hospital’s response. If standards weren’t met, that will be a question for the jury. But the standard to which the evidence is compared may be a slippery one.
There have also been situations in which employees refused to fly during the Ebola “crisis,” refused to work on teams with coworkers who might have the flu, turned down a trip to Disney World after the measles outbreak, and said “no, thanks” to free tickets to an NHL game because several players had mumps.
Avian flu
It’s no secret that in Iowa, where I live, avian flu has decimated flocks, and farmers and agriculture-based businesses are watching carefully to see which birds and other products may have to be destroyed as a result. Landfills are refusing disposal of turkey and chicken carcasses, and communities are concerned. Governor Terry Branstad has declared a statewide emergency, and the hit to poultry producers is critical.
The avian flu virus hasn’t been reported to have made the human-animal jump and therefore doesn’t currently pose a risk to humans. But what happens if you are the employer at ground zero when the first jump occurs? Can you be held liable for exposing your workers to a potential flu outbreak? As with Pham and Texas Presbyterian, the risk is certainly there, but following regulatory guidelines and providing workers with proper equipment and training on workplace hygiene and sanitation should mitigate that risk.
Employer obligations
So what’s an employer’s obligation if the workplace is a petri dish of viruses you may or may not know about? The CDC says that employees shouldn’t be working if they are highly contagious. Typically, according to the agency, employees must be fever-free for 24 hours without fever medication before they are allowed to come back to work. They also shouldn’t have active symptoms such as vomiting or diarrhea, which create a biohazard and are another indicator of being highly contagious.
However, the CDC also indicates that employees may continue to shed the virus for up to 10 days after they are free of major symptoms. That creates an issue for the employer: What’s the right procedure when an employee has been released to return to work by his physician through either a physician’s note or as part of an FMLA certification but the CDC says he might be infectious for up to 10 days?
Typically, a direct statement from a physician treating the employee will have primacy. If a physician directly states that the employee can return to work and is capable of fulfilling his essential job functions, the employee normally would be allowed to return. One caveat would be if the employee is still exhibiting significant symptoms like visible signs of a fever after he returns.
If the employee is sick, send him home. You can require him to have his temperature taken, which is a noninvasive process for most adults. It’s certainly possible that the employee was feeling better the day he saw the doctor but has now had a resurgence of his symptoms. You can’t take your child back to day care or send her back to school unless she has been fever-free for 24 hours, so an employee probably shouldn’t be exposing coworkers to the risks of contracting his illness, either. But be prepared for pushback from employees who don’t want to lose a day’s pay or get an “occurrence” on their attendance record.
What about vaccines?
Can you require workers to be vaccinated? For years, vaccines were encouraged but not mandatory in certain settings, such as hospitals. Now, many hospitals and day cares make flu vaccines mandatory for their employees absent a certified allergy or religious exemption.
It isn’t clear whether mandatory flu vaccine policies may spread to other industries or whether vaccines for other diseases, such as measles or whooping cough, will become mandatory. As of now, vaccines are not usually required for employees unless the employer serves a fragile population.
Going forward
You should have a policy that covers communicable disease and let your employees know that you can send them home if they are ill. Amend your strict attendance policies so workers feel they can take time off if they have a contagious disease. One way to balance abuse of the policy and your need for a clear attendance policy would be to require a doctor’s certification that the employee is suffering from a 
communicable disease and a physician’s note when she is able to return to work. Support good hygiene by conducting training and awareness programs, and encourage vaccination as part of a wellness plan or other health-related program.
Jo Ellen Whitney is an attorney with Davis Brown Law Firm in Des Moines, Iowa. She may be contacted at joellenwhitney@davisbrownlaw.com.